Virgin Blue's appeal against discrimination case grounded

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Virgin Blue's appeal against discrimination case grounded

Virgin Blue Airlines has lost an appeal against a decision that found that it had discriminated indirectly on the ground of age against eight job applicants aged over 35 in the selection methods it used to select flight attendants.

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Virgin Blue Airlines has lost an appeal against a decision that found that it had discriminated indirectly on the ground of age against eight job applicants aged over 35 in the selection methods it used to select flight attendants.

Appeal dismissed

The Queensland Supreme Court dismissed all grounds of Virgin's appeal. The grounds were mainly related to technical legal issues, the main one being a claim that Virgin was denied procedural fairness in the case because the job applicants did not argue direct discrimination in their case.

However, the Court found that Virgin had sufficient knowledge of the case being argued against it to have had sufficient opportunity to respond to the arguments and evidence. It was not unusual for discrimination cases to evolve as they progressed, with certain issues being abandoned by appellants along the way. The points of claim had made it clear what was being alleged.

As to Virgin's contention that the Queensland Anti-Discrimination Tribunal had made errors of law, the Court disagreed, finding that the Tribunal had made its findings on the basis of evidence produced by the parties, and it had been entitled to draw those conclusions from the evidence. Hiring statistics used as evidence of indirect discrimination were found to have been validly used and evaluated.

Therefore, the Tribunal's decision, and the damages it awarded to the eight job applicants, remains in force. The women received damages of between $7,000 and $12,000 each, plus interest and costs.

How discrimination occurred

Virgin Blue Airlines had used various selection methods to select employees. Because of the large volume of applications it received, these included group-based selection methods. The methods included testing for 'behavioural competencies', one of which was described as having 'Virgin flair' — making the flying experience fun for the customer.

The Tribunal found that no-one aged over 36 had been offered a job at Virgin under this process. As employees involved in the selection process tended to be young people who lacked sufficient training in making assessments, they tended to identify people in their own age group as more likely to have 'Virgin flair'. 

Virgin also used a selection method where groups of applicants were simultaneously assessed, and the Tribunal found that this technique, while not inherently age discriminatory, was designed to handle a much lower volume of applicants. Multiple assessors of each applicant were not used. Training of assessors in interview and selection techniques, and in how to make an assessment of 'Virgin flair' was inadequate. 

Full text of case

Virgin Blue Airlines Pty Ltd v Hopper & Ors [2007] QSC 075 (5 April 2007)

Original decision

A full analysis of the original decision appears here: Statistics used to find age discrimination in recruitment practices

Related

Claim does not prove indirect age discrimination

  

 

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