Reinstatement of employment and previous warnings

The relevance of previous workplace warnings and the provision of reinstatement of employment as a remedy for unfair dismissal are discussed in this dicta from a recent unfair dismissal case in the Fair Work Commission.

“ In respect of Ground 2A, the Commissioner concluded that there were delays in the process of dealing with the allegations against the Respondent and in finalising the termination. 42 The evidence before the Commission demonstrates that some of those delays were attributed to both parties,43 however there was no evidence that such delay caused prejudice to the Respondent. We therefore find that the Commissioner erred in finding that the delay in dealing with the allegations created any procedural unfairness.

The Commissioner also concluded that a number of the relevant events occurred over a narrow period of time and following the Respondent’s lengthy absence from the workplace. The Appellant submitted that it is not correct that the events occurred over a narrow space of time as the events took place between 31 January to 9 March 2021 and that while the January incident occurred after the Respondent’s absence from work this could not be said of the incidents on 28 February and 9 March 2021. We agree that the Commissioner erred by concluding that the events took place over a narrow period of time as this finding plainly does not reflect the timeline of events. Accordingly, Ground 2A is upheld. 44

Grounds 3 and 4

In respect of Grounds 3 and 4, the Commissioner concluded that the Respondent should be reinstated. In addition to the prior warnings that gave the Appellant little confidence the Respondent would not reoffend, the Commissioner made numerous findings relevant to whether reinstatement was an appropriate remedy including that:

“[159] The Applicant was cantankerous in providing her evidence regarding compliance with the necessary on-board obligations for the supernumery role. Her evidence on the required basic procedures was convoluted, and she engaged in arguments over her interpretation of semantics in the understanding of particular terms and procedures, aimed at complicating clear obligations

[163] The Applicant’s responses did not align with an employee being compliant with the procedures as set out in the training. Discharging the procedures was required in the safe operation of the plane and to effect her return to duty. The Applicant’s non-adherence to the requirements was unnecessary and belligerent.

[172] It is recognised that as a result of her medical condition, the Applicant stated the effect of such impeded her ability to present for duty. However, the Applicant did not, in these circumstances, provide the necessary, earliest reporting of her condition and situation to allow for alternative crewing plans. Whilst the Applicant raised that the supervisor and other employer representatives had not followed up on their duty of care to her, the Applicant had not followed procedure for the reporting of her condition or associated lateness. She had also only provided limited information of her medical condition. The Respondent had an obligation to explore the reasons with the Applicant, and to do so may have given them an understanding of her difficulties. However, equally taking into account the symptoms of the condition the Applicant raised, as frustrating the compliance with her obligations, it was open to her (and necessary as an experienced cabin crew supervisor) to have the relevant discussion with her employer. Telling the company doctor and not her direct supervisors or crewing contacts, was negligent. …

[178] The aviation industry is heavily regulated, with good reason, given the need to operate in a timely and safe manner in a potentially dangerous workplace.

[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…” (emphasis added)

These adverse findings and the previous warnings are inconsistent with the trust and confidence the Appellant ought to have in an employee who is in charge of a Cabin in such a safety critical industry and therefore are inconsistent with a decision to grant reinstatement. However, we note that it is not necessary to decide Grounds 3 and 4, given our following findings in respect of Ground 5.”

Virgin Australia Airlines Pty Ltd v Blackburn (2022) FWCFB delivered 12 December 2022 per Catanzariti VP, Dobson DP and Simpson C