Employee reinstated despite valid reason for dismissal

These concluding remarks in an unfair dismissal case demonstrate some of the circumstances in which the Fair Work Commission may sometimes conclude that there was a valid reason for the dismissal of the employee due to conduct or performance but that nonetheless it was harsh, unjust and unreasonable in the context of (in this particular case) principally the length of the applicant’s service.


[199] The consideration of this matter has analogies with the Full Bench decision of Carter v Qantas Airways Limited, 16 which found that whilst the conduct presented a valid reason for the dismissal, taking into account a range of matters such as the Applicant’s length of service, performance, lack of specific training and personal circumstances, the dismissal was considered to be harsh, unjust, and unreasonable.17 In the current case, the Applicant had a significant length of service: 14 years. The issues addressed at termination had occurred in the span of just over a month, though a number of allegations arose from one day and one flight. There had been mitigating reasons raised by the Applicant, in terms of a medical condition (for some of the non-compliance with attendance) and sustained contrary interpretations of training directions, based on her service knowledge against the backdrop of this discipline.

[200] The evidence demonstrated that the Applicant did not adhere to the required basic conduct of supernumerary obligations (for seating and communication when unwell), or sign on and sign off procedures. There are underlying operational reasons for the obligations required of crew conduct when acting in the supernumerary position on a flight. In addition, there are obligations for timekeeping and attendance procedures in order to provide certainty for the crewing, so that planes have sufficient crew numbers for safety and can be ready for departure at the relevant time, to prevent penalties for departure delays. These supernumerary duties represented only a minor subset of her normal crew work. She had never been warned for these matters, and she was rarely required to simply observe on a flight.

[201] The Applicant had been away from the workplace for a long period, was the subject of a disciplinary procedure that she considered was invalid, the matters (the subject of these proceedings) occurred on her first return to duties, and all of the matters occurred in close proximity, and were dealt with on an aggregate basis. When regard is had for all of those circumstances, alternative performance management to remedy the conduct, prior to the escalation of the disciplinary procedure to the level of dismissal, was warranted. The Applicant is a long-serving, experienced employee who had risen to the level of supervisor. The termination of employment, whilst based on a valid reason, was unfair considering all of these factors.

[202] Taking into account all of the particular circumstances of this matter, and in particular the Applicant’s length of service (in performing more elevated duties than currently considered), her medical condition (which played a role in the deficiency in complying with a sign on procedure), that the events primarily in question occurred over a short period when re-entering the workforce after a lengthy absence. The Applicant was absent from work for 80 days in 2019, 226 days during 2020, and 14 days from 1 January 2021 to 5 March 2021. In addition, for the procedural fairness issues as set out, the dismissal is considered to be harsh, unjust, and unreasonable.

[203] The Applicant refuted a range of the alleged breaches of conduct, such as the removal of food product from the flight. The Applicant, in accordance with policy, was able to consume the product on board the aircraft. There was no direct evidence or sighting of the product in her bag after leaving the flight. These matters were in direct dispute between the parties. The Respondent sought evidence from other crewmembers as to whether they had seen particular conduct engaged in by the Applicant on the flight. The Applicant complained of this procedure being evidence of bias towards her and her return to the workplace.

[204] The Applicant, in not providing timely communication of her medical condition and her circumstances, contributed to the findings by the Respondent in relation to her attendance issues. Whilst the Applicant’s evidence demonstrated a sound knowledge of the policies, and experience in operations, she also exhibited a pretence of superiority. She used this knowledge to frustrate compliance with the understanding of the procedures as required. On the evidence, the Applicant, in breaching these basic required procedures, contributed to the circumstances of the termination.

[205] There was some uncertainty at the time that these allegations arose, in terms of the prolonged length of dealing with the prior allegations related to the previous warning, the manner in which crew statements were obtained about her conduct as a supernumerary, and that these allegations arose against an unsettled period in terms of her immediate, prior, and lengthy period away from the workplace. This prolonged period of absence was not commensurate with the level of investigation that was required for the prior warning. In addition, the Applicant stated she conveyed details of her medical condition (related to the timeliness allegations to the company doctor) at the time of the show cause process, none of which she said was responded to. However, she did not provide this relevant information prior to this point, as she could have to her direct reports. Whilst it is recognised that the carpark records provided appropriate evidence of her arrival time in relation to her failure to sign on, there was limited enquiry of the reasoning for this lateness. The Applicant contributed to the circumstances of the conduct findings, however alternative outcomes to dismissal were available to the Respondent for a long-standing employee in the circumstances and context of the operations at that time, and the mitigating circumstances.

[206] Predominately, this is a matter where conduct allegations were made in relation to lateness and breaches of the code of conduct in terms of the Applicant’s duties as a supernumerary crew member. The Applicant, as stated, was a long-serving employee and the majority of allegations occurred on the one flight, on one day, and others over a short period. The evidence relating to these matters, whilst providing a valid reason (the Employer cannot condone disregard of this non-compliance with these procedures), they did not justify that termination was the appropriate disciplinary outcome. Circumstances related to the breaches were not adequately assessed. Alternatives to termination were not reasonably considered. For all the above reasons, whilst a valid reason existed simply based on the breaches of the operating procedures and Code of Conduct, the dismissal was harsh, unjust, and unreasonable, in all of the particular circumstances of the lesser breaches of duty, and the procedural fairness matters.

[207] It is of course recognised that this provides an opportunity for the Respondent and Applicant to discuss the warranted discharge of the employment contract and that any future conduct considered to be in breach of the policies and procedures may be reviewed in the context of this matter and the requirement for compliance.

[208] The Applicant’s case was built around the fact that she considered she had a better knowledge of the Respondent’s procedures than its representatives and those in LCC roles. For these reasons I consider that instead of just complying with procedures, in the circumstances of employment she contributed to the situation in somewhat belligerently relying on her experience and contrary view of those required duties and procedures. The assessment of her overall conduct was serious and contributed to the circumstances and justifies that she not be awarded renumeration for the interim period.

[209] For the aforementioned reasons, I have found that the dismissal of the Applicant was harsh, unjust, and unreasonable. Taking into account all of the facts and circumstances of the matter, on balance, reinstatement is appropriate and an order for continuity of service is issued. On the basis of the Applicant’s contribution to the circumstances, an order for the continuity of wages is not issued. However, the wages paid in lieu of notice is not recoverable by the Respondent.

[210] By way of example, Ms Scott stated that the Applicant was absent from work for 80 days in 2019, 226 days during 2020, and 14 days from 1 January 2021 to 5 March 2021.

[211] A separate Order is made.”

Blackburn v Virgin Australia Airlines T/A Virgin Australia (2022) FWC 1846 delivered- 14 July 2022 per Spencer C