Fact and Fiction in King v Jetstar Airways

A Federal Court decision last week has demonstrated a significant bias against people with a disability when seeking enforcement of Commonwealth disability discrimination legislation.  In finding that Jetstar was entitled to discriminate against passengers using wheelchairs because of an unproven cost, the court failed to recognise the cost of exclusion to people with a disability, effectively rendering anti discrimination laws useless.

A single justice of The Federal Court handed down the judgement in King v Jetstar Airways Pty Ltd last week.  The ABC story on the case appears here.

The court found that the case for discrimination was made out.  However the discrimination was considered acceptable on the basis of a line of reasoning that defies logic.

While the court was required to consider considered “all relevant factors” in seeking to determine whether the hardship claimed by Jetstar was unjustifiable, hardship experienced by the applicant was considered in completely different terms.

Hardship Jetstar style

The “unjustifiable hardship” argued by Jetstar is based on:

1. Increased cost due to reduced services in order to maintain scheduling commitments
2. Due to tight turnaround times which would be compromised by the addition of more passengers with a wheelchair
3. Based on an unverified study conducted by one individual observing the assistance provided to passengers with wheelchairs
4. Under Jetstar’s current processes.

In order to sustain the argument, each of these facts must be made out.

1.  Increased cost due to reduction in services

The increased cost calculated by Jetstar was not found to be a reliable estimate by the court.

Official performance data for November 2011 states that Jetstar flights did not depart on time 23.8% of the time.  The data provided by Jetstar suggests that approximately 3% of flights have a delayed departure due to passengers using a wheelchair.  The court did not find this data to be accurate, and it was acknowledged that this included flights delayed for other reasons.

On this basis, even if the 3% figure cited was correct, Jetstar flights are delayed roughly 20% of the time for reasons other than accommodating passengers with a wheelchair.

The estimated costs are based on an increased turnaround time on all flights.  The data provided by Jetstar suggests the airline assists passengers with a wheelchair at a rate of 0.4 passengers per flight.  The court recognised that there is no reason to assume that all flights would be delayed.

2. Tight turnaround times are compromised by passengers with a wheelchair

As noted above, Jetstar has difficulty meeting their scheduling commitments irrespective of the presence of a person with a wheelchair.  Jetstar argued that there is a domino effect when flights fail to depart on time – implying that this is somehow triggered by the high needs of individuals with a wheelchair.  No evidence was provided to demonstrate that this is in fact the case.

Jetstar argued that since their ground staff provided passengers with a wheelchair with ten minutes of assistance, this would require all flights to have an increased turnaround time of ten minutes, or at least five.  However the ten minutes included assistance provided at check in, and transporting the passenger to the gate, neither of which in any way impacts turnaround time, as these activities could be conducted well in advance of the aircraft’s arrival.

The only relevant factor would be the time taken to assist the passenger to board the aircraft.  This time was not estimated, and was not calculated against the time taken for the average passenger, including unaccompanied minors, groups, the aged, the visually impaired, or any other passengers who may take longer to board the aircraft.  On the basis of an estimated ten minutes assistance from check in to boarding, the time taken to board can be assumed to be a matter of a minute or two.  This is hardly significant in the time taken to board an entire aircraft full of passengers with various levels of need, efficiency and haste.

3.  Time requirements

The assistance provided to passengers with a wheelchair was estimated based on a time and motion study conducted at Melbourne airport.  The time requirements were measured in isolation, and not compared to the time taken for other passengers.

The time estimates were not verified, and were not investigated to determine whether these were typical, or whether they accounted for additional time in boarding the aircraft.

4.  Current process

The data used to determine the time requirements was based on Jetstar’s current practice.  No evaluation was conducted as to whether this practice was the most efficient or effective.  For example, mention is made of the significant distance between check in and boarding gate, and the time taken includes the time to push a manual wheelchair over this distance.  Many airports use mechanised transporters to transport elderly passengers to the boarding gate, a practice which would significantly reduce the time taken.

An investigation into the time taken would potentially uncover much inefficiency in the current Jetstar processes which are responsible for the delays.  Instead of contemplating this, the court accepted the premise that the passenger was herself responsible for the time taken.

The Outcome

On the basis of a line of reasoning that was unsubstantiated by the facts, the court held that Jetstar simply could not afford to transport more passengers with wheelchairs.

Jetstar claimed reductions of profitability of up to 72% which were unsubstantiated and not considered reliable by the court and harm to the Jetstar brand.

The impact to other passengers was assumed to be a given, and not one which Jetstar, as an airline, could mitigate by appropriate management strategies.  Apparently other passengers are being held to ransom by Ms King.

This is an incredible claim, and ridiculous scapegoating.  People with wheelchairs have not been demonstrated to be the cause of Jetstar’s delays – they are late anyway.  Any harm to the Jetstar brand is from their own inability to make their flights run on time, and any passenger inconvenience is a direct result of their own incompetence.

Hardship of Ms King

The court, in coming to a decision considered that the hardship to Ms King consisted of $40 for a more expensive flight.

There is no consideration of how significant $40 is to Ms King compared to the unsubstantiated “significant cost” to the airline.  Nor is it discussed that Ms King can not change anything in this scenario, while the airline could at least pretend they tried.

The court also held that there was no evidence that there were other passengers with wheelchairs who would have benefitted if the policy was not in place.  This is not a relevant consideration in a case where potential passengers were excluded on the basis of their wheelchair usage, and therefore not able to become a passenger in the first place.

The court, able to consider reputation and profitability for Jetstar showed a startling lack of consideration for Ms King.

If Jetstar could mount an argument about the hardship endured, the same should be allowed for Ms King, on behalf of passengers using wheelchairs.

There is a significant cost to an individual of being unable to fly on a particular flight because the airline fails to make appropriate arrangements for people with a disability.  Individuals flying with a group face the risk of being separated from their family, friends or colleagues.  Individuals with connecting flights face the risk of being unable to complete their journey.  Individuals attending business meetings face the risk of being unable to arrive on time and maintain their professional reputation.  In short, passengers who use a wheelchair book a passage on a particular flight for a reason, and have a reasonable expectation that they, to the same extent as the rest of the public, will be able to avail themselves of this service.

Disability discrimination legislation is supposed to prevent individuals from being excluded on the basis of their disability because it prevents them from going about their business and enjoying the same rights and freedoms as others.

 

The administration of justice should be fair, impartial and independent.  The general public should be able to rely on the judiciary to ensure that legislation is complied with, and to explain to the community how this occurs.  The reactions from online commentators reflect a failure to do so in this case.

Reactions from the public

There are many dissatisfied individuals who have nothing better to do than attack others in the anonymity of an online forum.  There is no merit in repeating their comments, as there are spiteful and malicious, and would be so irrespective of the findings in this case.

I refer instead to the confusion around the ruling and the reasons for it.  Some of the more common themes include:

• The applicant is a whingeing troublemaker who is costing the taxpayer through vexatious litigation.
• It is a safety issue.
• There are only so many wheelchair seats available.
• If she wants better service she should take a full service airline.

She is a whingeing troublemaker

So were Mahatma Gandhi, Nelson Mandela, and anybody else who stubbornly refused to allow others to trample on the rights of the individual simply because they are more powerful and have more influence?  We all have the right to be a whingeing troublemaker if the system works against us time and again.  Ms King is not the only person in Australia to use a wheelchair; she is simply the only one to have the capacity to take this fight to court.  A win would have benefitted many people.

She was not seeking compensation.  She simply sought a declaration of her rights.

The fact that the public feel the need to criticise Ms King for daring to oppose a corporation, and one which was threatening, by implication to increase costs to all other passengers if she were successful, is a sad indictment of a society that does not understand the purpose and intent of anti-discrimination legislation.

There are no legal rights apart from those that can be enforced.

It is a safety issue.  What would happen in an emergency?

It was not a safety issue.  It is interesting that this argument surfaces whenever people with a disability try to defend their rights.  I am not sure what it is about disability that makes others think they create a safety risk.  It is simply not true.

Even when confronted by the fact that there was no safety issue, commentators would seek to find one.

There are only so many disability seats available.

This is true.  The number is zero.  There are seats for passengers, and they are used by passengers.  Passengers who use wheelchairs do not have special seats.  Jetstar implemented a policy about how passengers with a wheelchair they would carry in an effort to reduce cost, not to work within structural limitations.  There is no evidence that there is any reduction in cost from this policy.

If she wants better service she should use a more expensive airline.

If the general public are able to access Jetstar’s discount flights, Ms King has every right to do exactly the same.  If people who use wheelchairs are expected to use more expensive airlines because budget airlines are allowed to discriminate, then the government needs to fund this.  Otherwise it is discrimination, and it is illegal.

 

A recent EU case with similar arguments resulted in a fine to the airline:

French Prosecutor Abdelkrim Grini, was quoted by RFI saying Easyjet operates “a commercial policy which consists of squeezing running costs to the maximum and, if a discriminatory policy is necessary for that, too bad.”  The prosecutor refers to “turnaround” times, the time needed by ground handlers for loading, unloading, and servicing an aircraft. Shorter turnarounds significantly increase airlines’ profits.  The court found Easyjet guilty of discriminating against disabled passengers, fining the budget airline for Euro 70,000 (GBP 54,000).

 

Australia has signed the same conventions with regard to disability as the EU.  In a country that prides itself on “a fair go” it is shameful that when push comes to shove, we rather support an airline that may or may not get us there on time, and may or may not be abiding by legislation, than a group of people squeezed out by discriminatory practices.

Aircraft safety is also legislatively required.  Low cost airlines seem to be able to find budget for that.

Naomi Anderson

Related articles

• Woman loses Jetstar wheelchair case (news.ninemsn.com.au)
• Jetstar has limited capacity this weekend (news.theage.com.au)
• Jetstar hit by baggage delays (theage.com.au)