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Qantas launches countersuit against former employee

written by Hannah Dowling | November 18, 2021
VH-ZNI takes off from Sydney, headed to London via Darwin as QF1 on Monday, 1 November 2021. (Qantas)

Qantas has filed a counterclaim against one of its former pilots, who sued the airline for allegedly underpaying his leave entitlements, after settling an earlier age discrimination case with the airline in July.

Andrew Hewitt, a long-haul captain and career Boeing 747 pilot, was offered an early retirement package last year at the age of 63, however Hewitt refused the deal and fought Qantas in the Federal Court of NSW. The two parties reached a settlement in July for an undisclosed amount.

However, Hewitt has since filed a new case against Qantas, accusing the airline of underpaying him his annual and long service leave entitlement by $92,000, according to a report by The Australian.

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The former pilot argued that Qantas had calculated his entitlements based on the minimum number of hours flown in his last six roster periods, as opposed to his actual flown hours.

Meanwhile, Qantas said under the settlement agreement, Hewitt made a “promise not to sue”, and was not entitled to make the claims he has now made in regard to his leave payments, which is why the airline has launched its counterclaim.

“Mr Hewitt brought this proceeding in breach of the ‘promise not to sue’,” Qantas’ defence argued in the Federal Court.

“Mr Hewitt is not entitled to maintain the claims that he makes against Qantas in this proceeding and the settlement agreement constitutes a bar and a complete defence to this proceeding.”

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The airline’s counterclaim seeks to recover all costs from Hewitt, should the former employee be found to have in fact breached his settlement terms.

“The settlement agreement includes a term to the effect that if Mr Hewitt breaches any of his obligations under the settlement agreement, he agrees to indemnify Qantas against any loss, cost, damage or expense, including but not limited to legal fees, that Qantas incurs as a consequence,” said the counterclaim.

“Qantas’ loss includes the legal fees that Qantas incurred in defending the principal proceeding brought in breach of the ‘promise not to sue’.”

The case comes after Hewitt was offered an early retirement package last year at the age of 63, in light of the impact of the COVID-19 pandemic on the airline.

Hewitt had risen to number four on the airline’s seniority list for its long-haul operations when the COVID-19 pandemic hit, having been with Qantas for 40 years.

At that time, Qantas argued that its long-haul operations would likely not return to full capacity until Hewitt is over the age of 65, at which point he would no longer be allowed to operate overseas commercial flights, under international civil aviation rules.

Hewitt then became one of just four of the 55 people offered early retirement to refuse the deal, and ultimately fought Qantas in the Federal Court of NSW, alleging age discrimination.

Hewitt argued that an early retirement package left him far worse off than the redundancy packages offered to younger pilots, with his package offering four months’ pay as opposed to 12 months.

The two parties reached a settlement agreement in July.

While the settlement amount remains undisclosed, it is thought to have been considerably more than the early retirement package initially offered to Hewitt.

Commenting on the current state of the case, a Qantas spokesperson said, “In relation to Mr Hewitt, Qantas has met all its obligations under the relevant enterprise agreement and will be defending the claim.”

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