Fair Work Act 2009
s.394—Unfair dismissal

DeVania Blackburn
v
Virgin Australia Airlines T/A Virgin Australia
(U2021/7086)

Application for an unfair dismissal remedy – alleged misconduct – valid reason – harsh, unjust, unreasonable – applicant contributed to circumstances

INTRODUCTION

[1] Ms DeVania Blackburn (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the dismissal of her employment by Virgin Australia Airlines T/A Virgin Australia (the Respondent/the Employer) was harsh, unjust or unreasonable. The Applicant sought reinstatement, continuity of service, and remuneration for the interim period.

[2] The matter was listed for a two-day hearing. The Respondent sought permission (with reasons) in writing, pursuant to s.596 of the Act, to be granted legal representation. Submissions were sought in response from the Applicant. The Applicant objected to the legal representation and a written decision was issued prior to the hearing. Legal representation was granted in accordance with s.596(2)(a) of the Act due to the proximity of the hearing and that Ms Lilian Khan, Senior Legal Counsel – Group Workplace Relations for the Respondent, had been diverted at short notice to assist with a range of Covid-related matters with the Queensland border opening at that time, and other reasons as provided. The lawyer acting on behalf of the Respondent appeared for one day, given the Applicant was not available on the second day and Ms Khan was later available.

[3] The Hearing was delayed following a series of the Applicant’s failures to meet the Directions timetable in filing submissions and non-attendance issues with the Hearing dates. The Respondent filed an application to dismiss the matter pursuant to s.399A of the Act. Directions were set for the Applicant to respond in writing to the dismissal application. In accordance with the parties’ preference, the dismissal application was heard by telephone hearing. A Decision rejecting the dismissal of the s.394 Application was provided on an ex tempore basis. Following the s.394 hearing, the Respondent provided final written submissions, and the Applicant was given permission to provide oral submissions by Microsoft Teams.

BACKGROUND

[4] The Applicant commenced employment with the Respondent on 16 June 2007 and was engaged as a Cabin Crew Supervisor. The Applicant was employed for a period of 14 years. The Applicant was dismissed, following an investigation into allegations of misconduct occurring over the course of a month.

[5] Some months after the incidents, the Respondent issued the Applicant a ‘Notice to Show Cause’ letter (Show Cause Letter) which outlined the findings of the investigation, and the Applicant was suspended from duty on full pay. The allegations and findings are extracted below from the Show Cause Letter:

“Findings

The findings of the investigation are as detailed below. In arriving at these findings, Virgin Australia has considered all of the information available to it, including your written response on 8 April 2021, and the responses provided by you at our meeting on 30 April 2021. You attended the meeting via Microsoft Teams along with Rachel Bentley (People Partner) and Jane Anson (Leader, Crew Culture). You were entitled and encourage to bring a support person or representative of your choice to this meeting and declined.

Allegation 1

On 31 January 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct. Specifically, while performing the role of a supernumerary crew member on VA780 (i.e. as an observer of the flight but not able to operate a door), it is alleged that you removed and misappropriated Virgin Australia food products into your crew bag and departed the Aircraft with them.

This allegation is substantiated.

(a) In substantiating this allegation, the investigation found that you placed food products in your bag and removed food products from the aircraft. This finding was based on the fact that two (2) cabin crew witnessed you place your crew bag on the last row of seats and place approximately four (4) handfuls of Virgin Australia food products into your bag; and

(b) your assertion that you consumed Virgin Australia food products onboard the flight but [sic] and that that you did not place Virgin Australia food products in your bag or remove these products from the aircraft. However, the amount of food products that were placed in your bag was more than what you could have consumed on the flight.

(c) You are able to consume food products whilst on board the flight and the investigation can find no reason why you would place food products in your bag in order to consume them on board the flight.

Allegation 2

On 31 January 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Short-Haul Cabin Crew Agreement 2015 section 2.9.2, the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 1.2.1 and the Return to Work Training Program namely that whilst you were performing the role of a supernumerary you should have been observing the flight and if at any time you were required to sit you would sit in the jump seat. Instead, you sat in a passenger seat, watched a movie and fell asleep.

These allegations are substantiated.

(d) witnesses’ evidence that whilst onboard VA775 you were:

a. observed sitting in 30F and watching a movie on your iPad as the crew conducted the inflight service. Whilst you claimed as a part of the investigation that you were not watching a movie on your iPad but were deleting photos and looking at the Virgin Australia Inflight Entertainment App. On the balance of probabilities, the investigation dos not accept this assertion and instead accepts the witness statement that you were watching a movie;

b. following the completion of the service the On Board Leader (OBL) spoke to you regarding changes to the forward galley catering set up and invited you to come up to the forward galley at any time on either of your two (2) sectors;

c. you were observed to be asleep in 30F during the flight; and

d. following the Public Announcement from the Flight Deck, ‘Cabin crew prepare for landing’, and after the seat belt sign for landing was illuminated, you were observed by the crew member responsible for securing the area in preparation for landing to be asleep. The crew member woke you to return to the 2LA jump seat for landing. You responded, ‘I’ll stay here’. You did not occupy the 2LA jump seat for landing; and

(e) witnesses’ evidence that whilst on board VA780 you were observed asleep in 30D during the flight;

(f) your admission in both your written and verbal response that once crew were released from their jump seats following the seat belt sign being extinguished you moved into the last row of seats and took up a passenger seat in 30F;

(g) your assertion that while you have been with Virgin Australia for 14 years and you are confident that you have a robust knowledge of policies and procedures it was your understanding that you were not to assist with the inflight service. This does not align with the expectation set out in the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 1.2.1 which states the Crew will be allocated appropriate service duties inflight.

(h) your admission in both your written and verbal response that despite admitting to knowing that you were required to occupy the 2LA jump seat for take-off and landing you did not return to the 2LA jump seat for landing on VA775 and instead remained seated in passenger seat 30F.

Allegation 3

On 31 January 2021, 28 February 2021 and 9 March 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Cabin Crew Wellness and Leave and Attendance Policy and the Virgin Australia Short-Haul Cabin Crew Agreement 2015, section 2.13 Sign On, Sign Off and Notification of Assigned Duties, namely that did not sign on for duty within the required time, nor notify your LCC, and the airport carpark entrance records indicated that you arrived at the airport carpark after sign on time.

This allegation is substantiated.

In substantiating the allegation, the investigation found:

a) on 31 January 2021, you were rostered to sign on for duty at 7:55am. You did not sign on for duty and you were not present for the pre-flight briefing. The BAC carpark records indicate that you arrived at the carpark entrance at 7:52am, which was 3 minutes before you should have signed on for duty;

b) on 28 February 2021, you were rostered to sign on for duty at 7:00am. The BAC carpark records indicate that you arrived at the carpark entrance at 7:30am, half an hour after you were required to sign on for duty. You phoned Cabin Crew Operational Support (CCOS) and advised Ms Anson, the CCOS Advisor, during your phone call at 7:58am that you were rostered an Airport Reserve shift at 7:00am and ‘had been in the carpark since then”. This was inconsistent with the airport carpark record that you arrived at 7.30 and as a consequence the investigation found that you were also dishonest;

c) on 9 March 2021, you were rostered to sign on for duty at 6:00am. The BAC carpark records indicate that you arrived at the carpark entrance at 7:26am, nearly an hour and a half after you should have signed on for duty;

d) on all three (3) occasions above that you were late for your rostered duty you did not contact your LCC Vanessa Scott within 48 hours to advise that you were late for work and unable to meet your obligation to sign-on for duty as is required under the Virgin Australia Short-Haul Cabin Crew Agreement 2015, section 2.13 Sign On, Sign Off and Notification of Assigned Duties and the Cabin Crew Wellness and Leave and Attendance Policy.

Allegation 4

On 31 January 2021 and 28 February 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct and the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 4.2, specifically 4.2.2 Sign on responsibility and section 4.2.4 sign off responsibilities, namely the requirement to sign on and sign off for duties.

These allegations are substantiated for all dates.

In substantiating these allegations, the investigation found:

a) on 31 January 2021, while undertaking mandatory training flights as a supernumerary crew member on VA775 and VA780, you did not sign on or sign off for your duty, either physically at a Virgin Australia computer or remotely via a company issued device;

b) on 28 February 2021, you did not sign on or sign off for your duty, either physically at a computer or remotely via a company issued device.

Allegation 5

On 31 January 2021 and 9 March 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct and the Virgin Australia Look Book in that you were not dressed and presented in accordance with the Look Book.

This allegation is substantiated.

In substantiating these allegations, the investigation found:

a) on 31 January 2021, you were not wearing makeup, your hair was messy with visible flyways, and your nail polish was visibly chipped;

b) on 9 March 2021, you were not wearing stockings.

These findings were dispute your assertion [sic] that you believe you were groomed according to the Virgin Australia Look Book.

The investigation notes that your lack of grooming standards wer [sic] the subject of recent discussions with your Leader Crew Culture Ms Vanessa Scott, on 6 October 2020 and 11 January 201 where Ms Scott reset her expectations with you and advised you of the required grooming standards. …”

[6] The Show Cause Letter required the Applicant to show cause, in writing, why her employment should not be terminated. She was further invited to attend a meeting, with a date and time to be confirmed, to provide her a further opportunity to respond. The Applicant was advised that she was entitled to bring a support person or representative of her choice to the meeting.

[7] The Applicant provided a response to the Show Cause Letter, denying the allegations made against her. In her response, the Applicant made reference to the duration of her career and her commitment to the Respondent. The Applicant wrote that she was ‘heartbroken’ by the allegations and that she had ensured she went ‘above and beyond,’ having been recognised for these efforts by previous managers. The Applicant referred to the allegations as serious and that she considered them to be ‘defamation.’ The Applicant wrote that she felt the substantiation of the allegations had been based on assumption. She further questioned the validity of the investigation and asserted that the allegations had been made and substantiated out of ‘spite.’

[8] The Applicant was invited to attend a rescheduled meeting to provide her with an opportunity to respond verbally. The Applicant was informed the meeting would be an outcome meeting and she was able to have a support person present.

[9] On 21 July 2021, the Applicant met with Ms Ali Rutherford, Crew Culture Manager. The Applicant advised that she had nothing further to add to her response. At the meeting, the Applicant was advised that her employment was terminated effective immediately. This was confirmed in writing by the Respondent on 11 August 2021 (Termination Letter). The Applicant was paid four weeks’ pay in lieu of notice, although the Respondent maintained that it could have summarily dismissed the Applicant.

[10] The Respondent further stated that at the time of her dismissal, the Applicant was subject to a final written warning which was issued on 28 October 2019. According to the Respondent, a warning letter was issued after an investigation found that the Applicant had accepted and misappropriated cash from a guest, during a food and beverage service on 15 and 16 June 2019. The Respondent produced a copy of the final written warning letter.

[11] At all times, the Applicant stated that she denied the allegations and that the previous CEO had agreed with her views of the incident. Whilst the Respondent referred to this prior warning at the hearing, the Show Cause Letter or the Termination Letter did not make reference to the warning.

RELEVANT LEGISLATION AND AGREEMENT PROVISIONS

[12] Section s.394 of the Act sets out:

“394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.”

[13] Further, ss.385 and 387 of the Act relevantly provide as follows:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[14] As to any remedy to be ordered, s.390 of the Act provides:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.”

[15] Furthermore, s.392 of the Act provides:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.”

[16] During the Applicant’s employment she was covered by the Virgin Australia Short Haul Cabin Crew Agreement 2015.

[17] The Relevant clauses of the Agreement relate to Duties (2.9) and Performance Management (2.16)

“2.9 DUTIES

…

2.9.2 You are expected to be proficient in the performance of your duties at Virgin Australia. Your duties in this context include compliance by you with all Virgin Australia policies and procedures, and your contract of employment. All policies are available to you either on the Intranet, or via a request to your Leader.

More information about the duties and responsibilities specific to your role will be made available for you when you commence employment and thereafter, as required during your employment.

2.9.3 You are required to perform operational duties, and meet the standards of performance and conduct that are communicated to you from time-to-time. This includes complying with all legislative and regulatory requirements that are relevant to your role.

2.16 PERFORMANCE MANAGEMENT

2.16.1 It is important that you have a clear understanding of what is expected of you in your role as a Cabin Crew Member. For this reason, expectations surrounding performance and conduct are set out in this Agreement, your contract of employment, Virgin Australia’s policies and procedures, and operational manuals.

2.16.2 Where your performance does not meet the required standards, Virgin Australia may put in place measures to address your performance. These measures may include a development plan.

2.16.3 You may be displaced from your duties and/or required to attend a meeting in order to participate in discussions in relation to your performance or conduct. This includes circumstances where you are required to assist in matters that involve other crew.

2.16.4 Where your performance and/or conduct remains below the required standard, Virgin Australia will follow a process to ensure that any determinations and outcomes resulting in disciplinary action are reached in accordance with the principles of procedural fairness. As part of this process:

(a) You will be provided with details of the allegations relating to your performance and or conduct in writing.

(b) You will be given an opportunity to respond to the matters raised and provide a justification.

(c) Your response will be considered before making a decision.

(d) You will be advised in writing of the decision and any further proposed action.”

SUMMARY OF APPLICANT’S SUBMISSIONS AND EVIDENCE

[18] The Applicant maintained that she was not afforded procedural fairness in both the investigation of allegations made against her, and her eventual termination. She stated that the Respondent had withheld, or did not provide to her, the evidence of the allegations made about her during the process. She further asserted that the evidence she provided in support of her show cause process was not fully and reasonably considered by the Respondent in making their decision to terminate her employment.

[19] The Applicant further submitted in her response to the Show Cause Letter that the Respondent had not provided notification of the reason for dismissal, in detailed clear and plain terms, before the decision to terminate was made:

“I honestly feel that the concern is due to investigators choosing to substantiate all claims made without asking myself any direct questions relating to any of the reasons for substantiating these claims. E.g. It is alleged that I took Virgin product of the a/c after flights completed an [sic] it is substantiated because of the number of items allegedly taken. Not once have I been asked how many did I eat, they are FOC and Crew have been advised it is ok to consume onboard as every other Crew member did, not [sic] has a number been advised by investigators yet only a general statement. I have mentioned why I ate them in my initial response, due to feeling unwell and my salad and fruit did not suffice and I needed some carbs and sugar for energy. After flight duty not once did I get asked if I had any items from onboard, nor did I get asked what was in my crew bag. I have openly advised my actions and why. Yet assumptions were made creating these allegations.

Another claim substantiated by investigators was about my grooming. 31^st of January, I know I had my grooming standards exceeded with my nails just done professionally SNS red, my make up included nude tones and my staple process being bronzer, mascara and lip gloss. My hair had just been straightened and in an up style meeting LookBook standards. I feel these allegations are made out of spite and with no substance as not once did anyone mention any advice or any issue with my grooming. As a team we are to look after each other or correct any errors observed to ensure policies and procedures are followed.”

[20] The employer resiled from pressing the grooming allegation.

[21] Further reference to the Applicant’s submissions and evidence is made later in the decision.

Summary of Witness statement of DeVania Blackburn

[22] The Applicant provided a witness statement supporting her position that the dismissal was harsh, unjust, or unreasonable. She stated that since the 2019 appointment of Ms Vanessa Scott, as her Leader, Crew Culture (LCC), that Ms Scott had ‘aggressively’ pursued three investigations into the Applicant’s conduct. The Applicant stated that the first two investigations closed without outcome, and the final investigation resulted in termination.

[23] The Applicant stated that on 9 March 2021, when she was approached by Ms Anson to have a meeting, that she initially assumed it to be a conversation to discuss her medical situation that arose on 28 February 2021. She believed the conversation would be an expression of concern regarding her welfare.

[24] The Applicant stated that she was advised by Ms Anson that the purpose of the meeting was to advise her that there had been allegations made relating to her conduct and that she was to be suspended from the workplace. The Applicant stated that no mention of her medical situation had been made.

[25] The Applicant stated that she had reason to attend the workplace on 9 March 2021 without her stockings on, as she left her Gold Coast home in haste in response to reported delays on her route to Brisbane, and that she intended to put on her stockings once inside the airport.

[26] The Applicant stated that on 1 April 2021, she received her first ‘check-up’ call from Ms Scott. The Applicant stated that at the time she was unsure whether Ms Scott should have contacted her, given her involvement in the allegations against the Applicant. The Applicant had asked Ms Scott for the reason behind the allegations being classed as misconduct, and stated that there had been inaccurate details and ‘fabricated facts’ within the allegations. The Applicant stated that Ms Scott’s response was that she was unable to assist with that.

[27] The Applicant stated that on 8 April 2021, she had emailed her response to the allegations, and noted that the Respondent acknowledged her response and claimed it was late. The Applicant contested this and stated that her response was sent before the deadline.

[28] The Applicant stated that she saw a missed call from Ms Scott on 21 April 2021, and felt the ‘awkward’ conversation with her previously led to her questioning whether she should speak with Ms Scott. The Applicant stated that she had received no answer to this. Further reference to the Applicant’s case is made later.

SUMMARY OF THE RESPONDENT’S SUBMISSIONS AND EVIDENCE

[29] The Respondent submitted that there was a valid reason for the Applicant’s dismissal, and that the Applicant was provided with procedural fairness at all stages of the investigation and decision-making process.

[30] The Respondent contended that there was a valid reason for dismissal due to the Applicant’s conduct, on the basis that:

(a) on 31 January 2021, she misappropriated food products;

(b) on 31 January 2021, she did not adequately perform the role of supernumerary during the flight and instead sat in a passenger seat, watched a movie, and fell asleep;

(c) on 31 January, 28 February, and 9 March 2021, she did not sign on for duty within the required time or notify her LCC that she was late. In addition, she was found to have been dishonest about her arrival time on 28 February 2021; and

(d) on 31 January and 28 February 2021, she failed to comply with the requirement to sign on and sign off for duty.

[31] As stated, the Respondent did not pursue the allegation of deficient grooming.

[32] The Respondent submitted that its reasons for dismissal involved elements of theft, dishonesty, and the wilful neglect of training that was meant to ensure the Applicant could safely perform her duties.

[33] In finding that the allegations against the Applicant were substantiated and the dismissal warranted, the Respondent submitted that it conducted a full and extensive investigation into the matters concerning the alleged misconduct. Further, the Respondent maintained that it provided the Applicant with a reasonable opportunity to answer the allegations. After considering the evidence, the Respondent found that the Applicant had engaged in the alleged misconduct.

[34] Ms Jade Anson, LCC, investigated the allegations and found them to be substantiated based on:

•  evidence from four individuals who were present at various times when the misconduct was said to have occurred;

•  a review of the Respondent’s policies and procedures in relation to the Applicant’s duties;

•  the training that the Applicant received in relation to performing supernumerary duties which the Applicant did not dispute receiving;

•  independent records including carpark arrival records; and

•  consideration of the Applicant’s account of the incidents.

[35] The Respondent submitted that during the investigation, the Applicant made comments to the effect that her colleagues had made false statements as a form of retaliation, due to her colleagues being either offended that she had made criticisms of their performance, or in fear of their job security, given the Employer had sought responses from them about the Applicant’s conduct. According to the Respondent, the Applicant failed to provide evidence to substantiate these claims and therefore it was not reasonable to accept these assertions. The Respondent stated it was open for Ms Anson to prefer the evidence of three employees who gave corroborating evidence.

[36] The Respondent submitted that the Commission does not require satisfaction as to serious misconduct, 1 as the Respondent was terminated with wages in lieu of notice, despite the fact that the Respondent characterised the conduct as serious misconduct.

[37] Further, the Respondent submitted that the Applicant was notified of those reasons that were pursued for the dismissal, set out in the Show Cause Letter, and confirmed in the 21 July 2021 termination meeting and 11 August 2021 Termination Letter. The Applicant provided a written response to the Show Cause Letter and attended a meeting with Ms Rutherford. At no stage during the show cause and termination process was the Applicant denied the opportunity to have a support person.

[38] The Respondent submitted that the allegations are sufficient to justify termination. However, in addition the Respondent, separate to the allegations as set out, raised at hearing the fact that it had previously counselled or warned the Applicant about both unsatisfactory conduct and poor performance on several occasions. The Respondent referred to two examples:

(a) 28 October 2019, where the Applicant received a final written warning in relation to the misappropriation of cash from a guest during the food and beverage service during a flight on 16 June 2019 (June 2019 Incident); and

(b) 2 February 2020, where the final written warning was reinstated against the Applicant as a result of breaching the Respondent’s Code of Conduct on 4 December 2020 (December 2020 Incident)

[39] The Respondent contended that the June 2019 and December 2020 incidents involved misconduct of a similar type to the conduct constituting the reasons for dismissal. The Respondent’s view was that it was entitled to consider the Applicant’s past conduct when deciding the appropriate disciplinary action. Whether or not the Applicant accepted the veracity of the prior warnings, the Respondent submitted that they remained in place and were not disturbed by any challenge through a formal dispute resolution process.

[40] The Respondent acknowledged that it is a large employer. The Respondent submitted that it operates an appropriately sized human resources department, which provided procedural support to the individuals involved in the investigation and termination process, and therefore this factor is neutral.

[41] The Respondent’s position regarding the Applicant’s assertions that she was targeted by Ms Scott and Ms Bryan, and that they encouraged other supervisors to follow suit, resulting in a third investigation and the making of fraudulent statements, is that the assertions are misconceived and indicate an inability of the Applicant to exercise insight into her conduct. The Respondent maintained that there was no evidence that Ms Scott acted improperly towards the Applicant, and noted that:

(a) the June 2019 Incident, which resulted in a final written warning, originated from a complaint made by an employee of the Respondent who reported to an LCC other than Ms Scott. There was no evidence to suggest that Ms Scott’s role in that incident was anything other than properly investigating a serious and independently raised allegation;

(b) the December 2020 Incident arose because Ms Scott noted a repeated behaviour, namely a failure to comply with the Attendance Policy. Ms Scott consulted with the People Team (the Respondent’s Human Resources Department) and her leader, Ms Rutherford, and was supported in progressing the matter to a letter of allegations.

[42] Upon being made aware of a complaint against Ms Scott by the Applicant, Ms Rutherford acted to preserve the integrity of the investigation and avoid the appearance of bias, by transferring the investigation of the matter to Ms Anson. The Respondent made no finding of misconduct against Ms Scott.

[43] Regarding the Applicant’s assertion that she was protected by s.352 of the Act, which prohibits the Respondent from dismissing her due to a temporary absence because of illness or injury of a kind prescribed by the Regulations, the Respondent confirmed that the Applicant was not dismissed due to a temporary absence, but rather misconduct. The Applicant submitted that she was experiencing an ongoing medical condition that had caused her lateness and argued the Respondent did not appropriately discuss this condition with her.

[44] The Respondent referred to the Applicant’s submission regarding the absence of a response made by Dr Sara Souter (Group Medical Officer) as a relevant factor, as it disregarded an allegation that the Applicant had been dishonest on 28 February 2021 as being part of the reason for her termination. The Respondent denied the Applicant’s view that she was dismissed partly on the basis of dishonesty in relation to a medical issue. The Respondent submitted that during the investigation, it was made clear to the Applicant that the allegations regarding her conduct on 28 February 2021 were failing to attend in accordance with the Respondent’s policies and procedures, and being dishonest with Ms Anson and cabin crew operational support by claiming that she arrived at the carpark earlier than the carpark records indicate.

[45] According to the Respondent, the fact that the Applicant experienced a medical incident on 28 February 2021 was entirely coincidental to one of the events leading to dismissal. Any medical evidence that the Applicant may have chosen to send to Dr Souter was not directly relevant. The Applicant submitted that the medical condition was the reason for her lateness in travelling from the Gold Coast.

[46] The Respondent’s primary position is that the application should be dismissed as the dismissal was not harsh, unjust, or unreasonable. However, the Respondent submitted that if the Commission makes a finding that the dismissal was unfair, the Respondent requests that the question of remedy be considered in light of the Commission’s factual findings. Correspondence was sent to the parties indicating that I did not intend to truncate the process and confirming that all material relating to remedy had already been submitted and reviewed. Both parties confirmed their intention to rely on the material already submitted.

Summary of Witness Statement of Ali Rutherford

[47] Ms Ali Rutherford was employed by the Respondent since February 2012 and held the position of Crew Culture Manager, reporting to Mr Ryan Bradshaw who was the Head of Crew Culture. Previously, Ms Rutherford was employed with the Respondent as a Senior HR Business Partner for seven years, and had also held the position of Ramp (Airside) Operations Manager.

[48] Ms Rutherford stated that due to her experience in these roles, she was familiar with the Respondent’s policies and procedures, and has experience in conducting investigations and making decisions on disciplinary matters. The Applicant, during her employment with the Respondent, reported to Ms Scott who, in turn, reported to Ms Rutherford.

[49] On 31 January 2021, Ms Rutherford stated she was copied in on an email from Ms Jessica Rooney, another LCC. The email was addressed to Ms Scott and outlined a series of complaints which had been made against the Applicant. The email was the duty of Ms Scott to attend to, but was noted by Ms Rutherford.

[50] On 9 February 2021, Ms Scott discussed the complaints with Ms Rutherford to determine the necessity of an investigation, as was common practice within the team. This conversation was summarised in an email. Ms Rutherford reviewed the Applicant’s employment records and knew that the Applicant had been previously counselled on grooming.

[51] Ms Scott consulted the People Team and, jointly with Ms Rutherford, concluded that the complaints should progress to an investigation.

[52] Ms Rutherford stated that she stepped out of the process to allow Ms Scott to conduct the investigation. This was common process so that any result may be carried out independently.
.
[53] On 1 March 2021, Ms Rutherford was advised by Ms Lucy Bryan, the People Team partner working with Ms Scott, that the Applicant had previously made an ethics complaint about Ms Scott and Ms Bryan. This claim had not been substantiated, however to alleviate any potential perception of conflict of interest, Ms Rutherford asked Ms Anson to conduct the investigation.

[54] On 2 March 2021, Ms Rutherford contacted Ms Anson to advise that the investigation of the complaints about the Applicant was necessary. Ms Anson was informed that the investigation would be conducted in consultation with the People Team. At this stage, Ms Rutherford was not involved with the investigation itself, however remained aware of its progress so as to monitor her team members’ workload.

[55] Ms Anson finalised the outcome and, together with a member of the People Team, had a conversation with Ms Rutherford. The purpose of the discussion was to determine the need to move to a show cause process. Ms Rutherford stated on the report that she determined it appropriate to proceed with the show cause process.

[56] On 17 June 2021, Ms Rutherford had a meeting with the Applicant to notify her that she was required to show cause as to why her employment should not be terminated. The meeting was conducted in person. Ms Rutherford arranged for Dr Souter to be present so as to ensure the Applicant was in a fit state to proceed with the meeting. Ms Rutherford stated she was aware that the Applicant had experienced some medical issues during the investigation.

[57] Ms Rutherford stated that she was mindful the Applicant would need to drive from the meeting to her home on the Gold Coast, and therefore would need to be in the right frame of mind to drive. Ms Rutherford briefed Dr Souter on the investigation and the outcome so that she would have sufficient information to assist the Applicant and assess the situation if necessary.

[58] The Applicant was approximately 10 minutes late to the meeting, for which she gave no prior notice. She stated that she was also wearing a dress that was torn, but that she otherwise appeared fine.

[59] Ms Rutherford stated that Ms Anson informed the Applicant of the outcome of the investigation and left the room afterwards. Ms Rutherford then asked the Applicant if she was okay. The Applicant started to cry, so Ms Rutherford asked her if she wanted to have a conversation with Dr Souter. The Applicant accepted. Ms Rutherford then stated she then left the room. The Applicant stated that she spoke to Dr Souter for approximately 45 minutes.

[60] Dr Souter informed Ms Rutherford that there was nothing she was aware of in the Applicant’s medical history that would have justified her behaviour as set out in the allegations. Dr Souter advised that the Applicant was going to send her some more information.

[61] At the conclusion of the meeting, the Applicant was given a letter confirming the outcome of the investigation and informing her that she would be required to show cause as to why her employment should not be terminated. A copy of the notes from that meeting was provided.

[62] The Applicant asked for an extension to provide her response to the letter, to allow time for Dr Souter to review her medical documents. Ms Rutherford granted the extension and informed the Applicant that she would send an updated letter. The letter was sent to the Applicant by email on 2 July 2021.

[63] The Applicant then requested a further extension to 3 July 2021 which was granted until 5 July 2021.

[64] The Applicant provided a written response on 5 July 2021. Ms Rutherford offered the Applicant the opportunity to discuss her response in person. At first, the Applicant accepted the opportunity and requested the meeting be rescheduled. A copy of the email exchange about this meeting (from 15 and 16 July 2021) was provided.

[65] The Applicant ultimately refused the opportunity to meet and said that there was ‘nothing further to discuss.’

Termination Decision

[66] Ms Rutherford stated that she was the sole decision maker in relation to the termination decision.

[67] Ms Rutherford stated that she considered several factors in making her decision, including:

•  the nature of the allegations that had been substantiated and the strength of the evidence on which the allegations had been substantiated;

•  whether it was possible that the Applicant would change her behaviour if she was managed in a different way or assigned to different leader;

•  the Applicant’s previous performance and conduct and the Applicant’s length of service; and

•  the Applicant’s response to the show cause process.

[68] Before finalising Ms Rutherford’s decision, she stated that she sought advice from Ms Joanne Stevenson, who was the Manager of Workplace Investigations, and Mr Bradshaw, Ms Rutherford’s manager. Alternatives to dismissal were considered but ultimately Ms Rutherford could not support anything other than dismissal, given the serious nature of the conduct and in consideration of the fact that the Applicant’s had already received a final written warning for similar conduct. The Respondent considered that the likelihood of the Applicant reoffending was high, as previous warnings had not been sufficient in preventing reoccurrence of the types of behaviours for which the Applicant was again being disciplined.

[69] Ms Rutherford stated that both Ms Stevenson and Mr Bradshaw supported the decision to terminate the Applicant’s employment.

[70] Ms Rutherford met with the Applicant by Microsoft Teams on 21 July 2021 to inform her of the decision to dismiss her from employment. Ms Rutherford stated that the Applicant advised by way of voicemail that she would be late to the meeting and would not be in business attire. Ms Rutherford stated that the Applicant did not dial into the meeting until approximately 10 minutes after the Respondent dialled into the meeting.

[71] Ms Rutherford stated that there was an administrative delay in issuing the termination letter as the Applicant emailed her requesting that the Respondent consider her resignation in place of a termination.

[72] Ms Rutherford stated she did not believe reinstatement would be appropriate. She stated that she had no confidence that the Applicant had insight into her conduct.

[73] Ms Rutherford stated that she felt Ms Scott’s management of the Applicant was appropriate.

[74] Ms Rutherford stated that she believed the findings in the investigation were true, and the decision to terminate the Applicants employment was appropriate.

Summary of Witness Statement of Jade Anson

[75] Ms Jade Anson provided a witness statement in support of the Respondent’s case. Ms Anson had been employed with the Respondent since June 2004 and held the position of LCC since 2010. Ms Anson reported to Ms Rutherford.

[76] During her employment with the Respondent, Ms Anson attended training delivered by the Respondent’s People Team and Employment Law Team in managing performance and conducting workplace investigations.

[77] Ms Anson undertook an investigation into allegations made against the Applicant relating to conduct occurring between January and March 2021.

[78] Ms Anson was the Applicant’s leader between approximately 2011 and 2015.

[79] During this time, Ms Anson did not undertake any formal disciplinary processes with the Applicant, however sent two leave and attendance policy reminder emails to the Applicant.

[80] Ms Anson stated that she recalled having some discussions with the Applicant around issues to do with her grooming.

[81] On 9 March 2021, the Applicant’s first day back at work, Ms Anson stated that the Applicant was informed about a complaint made against her, and was thereby suspended on full pay. Ms Anson advised the Applicant that she would be provided with a copy of the allegations against her once further enquiries had been made, and would be afforded the opportunity to respond.

[82] Ms Anson stated that during her investigation she became aware of other instances of potential misconduct by the Applicant on 28 February 2021 and 9 March 2021, and these were added to the matters under consideration.

[83] Ms Anson stated that the allegations against the Applicant were supported by the evidence in the statements provided by the cabin crew rostered on the 31 January 2021 flight. The allegations were that the Applicant:

•  arrived late for her shift;

•  was not in the jump seat as required and where she had been allocated;

•  took food and placed it in her crew bag;

•  fell asleep during the flights to and from Cairns; and

•  watched a movie on her iPad.

[84] Ms Anson stated that she had interviewed the cabin crew who provided the statements in relation to the allegations. She also noted that the witnesses had been employed by the Respondent for several years, and noted no concerns regarding their own performance or integrity. Additionally, she noted that she was not aware of any interpersonal difficulties between these team members and the Applicant.

[85] Ms Anson stated that she considered the Applicant’s response to the allegations and, in relation to the matter of her consuming snacks during the flight, accepted that the Applicant was not the only crew member to do so. She did not, however, accept the Applicant’s assertions that she had not taken the items in order to remove them from the Aircraft.

[86] Ms Anson considered the Applicant’s assertion that she had simply placed the snacks amongst her belongings to consume them during the flight, and stated that in light of the evidence supplied by the other crew members, the evidence weighed against the Applicant’s claims.

[87] Ms Anson stated that she investigated the Applicant’s claim that she had submitted a service and logistics feedback form to provide information relating to the issues experienced on the flight. Ms Anson stated that her investigation, using the Respondent’s Customer Experiment Design Lead and the Leader of Safety Assurance, confirmed that the form had not been submitted and that the form itself had been retired for almost a year.

[88] In relation to the second allegation, Ms Anson stated that she did not accept the Applicant’s reasons for not being seated in the required ‘jump seat’ position. The Applicant had asserted that her actions were because she had been feeling unwell and had been unable (due to time constraints) to raise this with the other crew members. The other crew members did not raise in their statements that the Applicant had told them she had been feeling unwell.

[89] In relation to the allegation that the Applicant arrived late and did not inform the relevant individuals, Ms Anson stated that she had found the Applicant dishonest about her arrival times and had failed to contact the relevant individuals when she was running late. The Applicant had provided reasons and explanations for the various delays but Ms Anson, though she stated she had considered these reasons and explanations, viewed the Applicant’s dishonesty regarding her lateness as the key issue.

[90] In relation to the allegation that the Applicant failed to fulfill her sign-on and sign-off duties on two occasions, Ms Anson stated that she did not accept the Applicant’s explanation that she had the crewing sector sign her on, or that there had been mitigating factors resulting in her issues.

[91] Ms Anson stated that the conclusion of the investigation was that, overall, the Applicant presented as uninterested in the discussion and did not take the response meeting seriously. Ms Anson stated that she felt the Applicant had been uncooperative during the process, in that she had appeared distracted and did not listen to Ms Anson, and that she did not find the Applicant’s responses convincing.

Summary of Witness statement of Meagan Pixley

[92] Ms Meagan Pixley provided a witness statement in support of the Respondent’s case. Ms Pixley had been employed by the Respondent since 11 June 2007 and was currently employed in the position of Cabin Crew. Ms Pixley stated that she had previously worked with the Applicant when she was a Cabin Crew on several occasions. She stated that she had never had any interpersonal problems with the Applicant and that they had a professional working relationship.

[93] Ms Pixley stated that on 31 January 2021 she was rostered to work on flights VA775 and VA780, which are the return flights between Brisbane and Cairns. She stated that on the flight to Brisbane (VA780) she was completing the service of drinks and complimentary snacks to guests with the Applicant. Ms Pixley stated that whilst serving guests in the last row of seats, the Applicant pulled her crew esky bag from the overhead locker. She then took an armful of snacks from the service car and put them in her bag. Ms Pixley stated that she was on the other side of the cart, approximately one metre away from the Applicant. There was a difference in the allegations about the quantity of snacks involved.

[94] Ms Pixley stated that after they arrived back in Brisbane and she had finished her duties, she reported what she had seen to Ms Jessica Rooney, the LCC on duty that day. Ms Rooney asked Ms Pixley to write an email with details about what she had seen so that she could deal with it.

[95] Ms Pixley provided a copy of the email that she sent to Ms Rooney on 31 January 2021. The email set out:

“To whom it may concern,

I’m writing to report a situation that occurred on 31st January 2021 on VA775 Brisbane - Cairns and VA 780 Cairns – Brisbane, regarding the performance of a particular crew member Davania Blackburn.

I was assigned R1 on that duty. I’m reporting on the events that I saw.

The crew member was late to work arriving at security, with no sense of urgency or concern. She slept on the first and second sector in the last row, for a very good part of each sector. According to the L2 and R2 crew members she did not return to her crew seat L2X for landing into Cairns.

After the CS spoke to the entire crew on our turnaround in Cairns, encouraging us to all participate in a service as the load was higher for the return sector. The crew member Davania did assist me on the service on the second sector. Her communication and working together was not acceptable, in particular pulling the cart away from me, whilst I was serving rows. Before returning the service cart into the galley, she pulled her crew esky bag from the last over head locker and placed it on the aisle seat in the last row. Pulled an armful of snacks from the service cart and put them into her crew bag. In front of passengers [sic] view.

We completed service and she returned to the last row in the aisle seat and fell asleep again.

As a crew we all felt concerned about the nature of her behaviour, performance and attitude. She didn’t seem to have any interest in being back at work, or following our Supervisors role, with any intention of trying to familiarise herself after having time off work.

Please let me know if you have any more questions.

Meagan Pixley”

[96] Ms Pixley stated that following the incident and her having sent the above email, she attended an interview with Ms Anson on 9 April 2021. During this meeting she stated that she provided her account of the 31 January 2021 incident.

Summary of Witness Statement of Vanessa Scott

[97] Ms Vanessa Scott provided a witness statement in the proceedings. Ms Scott stated that she had been employed with the Respondent since July 2003 and currently held the position of LCC. Ms Scott reported to Ms Rutherford. Ms Scott stated that she had held her current role since 1 January 2019, and that the Applicant reported to her from February 2019 until her employment was terminated on 21 July 2021.

[98] Ms Scott stated that she did not recall when she first met the Applicant, though it was before she became her leader. Ms Scott believed that their working relationship was a professional one. She stated that she had a similar working relationship with the Applicant as she did with her other reports, and she was not aware of any issues between them until it was raised in relation to the investigation into the 31 January 2021 incident.

[99] Ms Scott stated that although she became the Applicant’s leader in February 2019, she spent relatively little time working with her, due to a combination of the Applicant being on leave, the Applicant being suspended from duty, and the both of them being stood down at various times due to the Covid-19 pandemic.

[100] Ms Scott stated that from the time of her appointment, the Applicant had alleged that she ‘aggressively pursued three workplace investigations into [her] conduct. The first two closed without outcome to change position. The last being reason for termination.’ Ms Scott disputed the Applicant’s account. She stated that two of the three investigations took place after concerns were raised with her.

[101] Ms Scott further stated that the allegations that lead to the first and second investigations were initially reported to her colleagues, Mr Alex Heitikko and Ms Jessica Rooney. Ms Scott stated that in both cases, a team member reported concerns with the Applicant’s behaviour to their leader and their leader referred the matter to her. Ms Scott stated that, as the Applicant’s leader, it was her decision to investigate the concerns. She stated that she has never targeted the Applicant for performance management or discipline, and that she did not treat her differently to other team members.

[102] Ms Scott stated that the first and second investigations resulted in a final warning and reinstatement of a final warning respectively, and those disciplinary decisions were not made by Ms Scott.

15 and 16 June 2019 incident (investigation 1)

[103] In June 2019, it was alleged that the Applicant had misappropriated cash from a guest (June Allegations). Ms Scott stated that information about this allegation came to her attention because a team member had reported the Applicant’s conduct to her leader, Alex Hietikko. Mr Hietikko then advised Ms Scott about the report since she was the Applicant’s Leader Crew Culture.

[104] Ms Scott stated that before commencing the investigation into the June Allegations, she spoke to a former Senior Business Partner in the People Team, and an employee of Cabin Crew Brisbane and New Zealand about her concerns. Both agreed that due to the severity of the allegations an investigation should be commenced.

[105] Ms Scott stated that she issued the Applicant with a letter of allegations dated 5 August 2019 advising her that the Respondent was investigating conduct that she had allegedly engaged in on 16 June 2019. As the Applicant’s leader, it was Ms Scott’s responsibility to issue the letter.

[106] There was a delay between the incident date and the issuing of the June letter of allegation, because the Applicant took personal leave on 6 and 7 July 2019 and was then on annual leave from 15 July to 4 August 2019 inclusive.

[107] The June letter of allegation provided the particulars that were under investigation. These particulars were that while operating flight VA323 on 16 June 2019, the Applicant:

•  accepted cash from a guest while processing a food and beverage transaction on the flight;

•  said words to the effect of, ‘I’ll just put it through on my card later’ to the guest and placed the cash in her pocket;

•  failed to put the transaction through the point of sale; and

•  misappropriated the cash taken from the guest.

[108] Ms Scott stated that these allegations are referred to together as the ‘June Allegations.’ The Applicant was stood down while the investigation was completed.

[109] Ms Scott stated that in the course of her investigation, the Applicant was provided the opportunity to respond to the June Allegations in writing and at a meeting in person. The Applicant provided a written response to the June Allegations via email on 6 August 2019. In the email, she said that a guest wanted to pay for their purchase with cash, but Virgin only accepts card payments during the food and beverage service. The Applicant said she offered to take the guest’s cash and put the purchase through on her personal card.

[110] Ms Scott stated that the Applicant also attended a meeting with the Respondent’s personnel at the Respondent’s International Terminal on 8 August 2019. At the Respondent’s suggestion, they met the Applicant at the International Terminal (instead of the Domestic Terminal) so that her colleagues would not see that she was attending an investigation meeting.

[111] Ms Scott stated that during the 8 August 2019 meeting, the Applicant:

•  stated that she had accepted cash from a guest on 15 June 2019 on flight VA1090 and that she had then processed this transaction on her own card in the presence of another Respondent employee;

•  was asked if she could provide a copy of her bank statements or the last 6 digits of the card used to see if it was possible to verify these details against the point of sale machine used on that flight. The Applicant provided details for two cards but did not provide details or bank statements for the third card;

•  gave inconsistent evidence about her knowledge of the Respondent’s policy about accepting cash payments; and

•  did not admit to accepting cash from a guest on any other occasion and said she could not recall taking cash from a guest on 16 June 2019 on flight VA323.

[112] Ms Scott stated that as part of her investigation, she interviewed the employee identified by the Applicant as a witness, but that employee did not corroborate her version of events. She also stated that she reviewed the sales transactions on flights VA1090 on 15 June 2019 and VA323 on 16 June 2019, but found no evidence that the Applicant had processed a transaction on either of the cards for which she had provided details.

[113] In conclusion, Ms Scott stated that she found that on 16 June 2019 the Applicant had accepted and misappropriated cash from a guest during the food and beverage service and that the allegations were substantiated.

[114] The Applicant’s substantiated conduct was in breach of the Respondent’s Code of Conduct which requires employees to act honestly, and the Service Book, which requires team members to use the point of sale device to capture and record all retail transactions, and prohibits accepting cash sales onboard flights.

[115] Ms Scott stated that she provided her findings from the investigation to Ms Cox and it was her decision to move to a show cause process. Ms Scott was not involved in the show cause process or the disciplinary decision.

[116] The findings of the investigation were set out in a letter dated 30 August 2019 from Mr Ben Mills (Leader Crew Development), on behalf of Ms Cox, to the Applicant. The Applicant was asked to show cause as to why her employment should not be terminated. Mr Mills and Ms Scott were both LCCs but when the show cause letter for the June 2019 incident was finalised, Mr Mills was acting as Ms Cox’s delegate because she was on leave.

[117] The Applicant provided a written response via CJM Lawyers on 9 September 2019 and attended a meeting to discuss her response. On 28 October 2019, Ms Cox issued the Applicant with a final written warning in respect of her conduct. The letter stated that given her length of service with the Respondent, Ms Cox had decided to provide the Applicant with one final opportunity to demonstrate that she was able to meet the Respondent’s expectations and comply with the Respondent’s policies and procedures.

[118] Ms Scott stated that she believed that the June 2019 incident took several months to resolve because the Applicant exercised her right to engage legal representation and following that, all communications were via email.

4 December 2019 Incident (Investigation 2)

[119] Ms Scott stated that the Applicant was scheduled for training on 4 December 2019 but failed to attend. This training was not offered every day and the Applicant could not resume flying duties until the training was completed. The Applicant called Crew Control on the day to notify them of her absence, but Ms Scott stated that she failed to also call her, as her LCC (December 2019 Incident).

[120] Under the Virgin Cabin Crew Wellness and Leave and Attendance Policy (Attendance Policy), if a crew member is unable to attend for work, they are required to telephone both Crew Control and their Leader Crew Development (LCD) to advise of their absence. LCD is the new title for LCC. The Attendance Policy states:

“after calling Crew Control, you must then call and speak with your Leader, Crew Development (LCD) informing them you are absent from work. You are required to call between the hours of 0800-1630, 7 days a week. If you have to leave a voicemail message, your LCD may call you back and discuss your absence and the documentation that will be required…”

[121] Ms Scott stated that the Applicant called her on 5 December 2019. During this call, the Applicant told her that she had received a message to contact Forward Planning or Ms Scott and that she also had an appointment to get some blood test results. Ms Scott asked the Applicant if she was calling in absent for duty and she said no. Ms Scott stated that she looked at the Applicant’s roster and saw that she was SOC (subject to operational clearance) because she had not completed mandatory return to work training. This is when Ms Scott realised that the Applicant had breached the Attendance Policy. Forward Planning had also contacted Ms Scott to liaise with the Applicant to schedule the next available time for her to complete her return to work training.

[122] The Applicant was informed about the allegations related to the December 2019 Incident in a letter dated 10 December 2019. As the December letter of allegation states, Ms Scott had previously counselled the Applicant about similar conduct, and she believed that this indicated a pattern of behaviour that did not meet the standards and expectations outlined in Virgin’s Code of Conduct. The Applicant was invited to respond to the allegation in writing and to attend a meeting to discuss the allegation against her.

[123] During the course of the investigation into the December 2019 Incident, Ms Scott stated that she formed the view that while the Applicant was aware of the requirements set out in the Attendance Policy and the Code of Conduct, she consciously chose not to comply. This view was based on the fact that during the investigation the Applicant confirmed she knew her obligations but nonetheless expected leniency given that ‘she was an adult.’

[124] Ms Scott also stated that the Applicant admitted that she did not follow the correct notification process, but said this was because she was ‘not in a good mental state and [she] was concerned about [herself].’ Ms Scott understood this comment to mean that the Applicant felt impacted by the investigation into the June Allegations. The Applicant had asked for stress leave following the conclusion of that investigation, but this was not approved by Ms Cox.

[125] The Applicant alleged that previous LCCs had provided her with permission to breach the Attendance Policy by allowing her to text message or email instead of notifying them of her absence by phone.

[126] Ms Scott stated that she advised the Applicant that the Attendance Policy states that employees must call their LCC to notify of their absence, and that she does not accept text messages from any of her reports.

[127] As part of the investigation, Ms Scott undertook a comprehensive review of previous records from the Applicant’s other LCCs and found at least 10 instances in the last eight years where she had been counselled about the need to comply with the Attendance Policy and, specifically, the need to call rather than text her LCC. Ms Scott stated that she saw no evidence that the Applicant’s non-compliance with the Attendance Policy had been accepted or encouraged and, therefore, she formed the view that the Applicant had been dishonest with her.

[128] Ms Scott concluded that the allegation was substantiated and communicated this to Mr Mills. At the time, Mr Mills was acting as Ms Cox’s delegate because she was on leave. Ms Scott stated that as a consequence of the allegation being substantiated, Mr Mills made the decision to reinstate the final warning previously issued to the Applicant in relation to the June 2019 incident. The Applicant was notified of the outcome of the investigation in a letter dated 2 February 2020.

31 January 2021 Incident (Investigation 3)

[129] Ms Scott stated that on 7 October 2020 she had a resetting of expectations conversation with the Applicant, because she had let her Aviation Security Identity Card (ASIC) lapse which meant that she was unable to fly, as she could not be issued with a Temporary Access Card. Failure to hold an ASIC is a breach of the Applicant’s terms of employment.

[130] Ms Scott stated that the Applicant seemed receptive to her comments and agreed to be voluntarily stood down as of 2 November 2020. Due to Covid-19, Cabin Crew could be voluntarily stood down at that time. The Applicant was absent from the workplace for approximately two months prior to undertaking her duty as a supernumerary on 31 January 2021.

[131] On 31 January 2021, the Applicant had been rostered to perform supernumerary duties. Ms Scott stated that she received an email from Jessica Rooney (LCC). The email was also sent to Ms Rutherford and Matt Zuino (Head of Customer Service Delivery). Ms Rooney’s email stated that she had been notified that the Applicant did not complete the training necessary as a supernumerary for her to be cleared to fly.

[132] Ms Scott stated that 31 January 2021 was a Sunday, and only one LCC is rostered to work on a Sunday. On this day, it was Ms Rooney. Ms Scott understood that when the flight landed, the Cabin Crew spoke to Ms Rooney, the on-duty LCC, about the Applicant’s behaviour. Ms Rooney then emailed Ms Scott as she was the Applicant’s LCC.

[133] In her witness statement, the Applicant says at paragraph 30 that ‘[she] had previously mentioned to Vanessa Scott that [she] had been rostered Return to Work for 90 days or more even though it does not apply to [her]. The reply was if its rostered just do it. This highlighting [her] being treated differently to other employees.’ Ms Scott does not recall this conversation and she stated that this is not something she would ordinarily say.

[134] Ms Scott stated that due to Covid-19, the return to work process had changed and there were now different levels of return to work training. The requirement to complete return to work training is not Ms Scott’s decision, but one made by Cabin Crew Training based on the number of days a person was absent. Ms Scott stated that she had not requested additional training for the Applicant.

[135] The 31 January 2021 email also alleged that there were other concerns relating to the Applicant’s conduct at work, including her ‘stealing products, being hungover/smelling of alcohol and her conduct of sleeping in the back row of seats on both sectors. All of this detail will be sent through by the crew on her flight today’ (31 January 2021 Incident).

[136] Ms Rooney’s email stated that she had ‘asked the crew to submit safety reports and to also send through their accounts of her conduct on their flights today. These will be sent through the [redacted].’ Ms Rooney’s email also attached an extract from the Crew Seat Policy which explained the purpose of supernumerary sectors. The email also included a briefing report confirming which crew were on VA775 (Brisbane to Cairns), and an RCR (post roster change) request to place the Applicant on SOC from 1 February 2021, as she had not completed her supernumerary flights seated in an allocated crew jump seat.

[137] Following receipt of Ms Rooney’s email, Ms Scott stated that she made some initial enquiries into the matter as follows:

•  On 2 February 2021, Ms Scott stated that she called Stephen Barry (Leader, Crew Training and Standards) to ask for information on post-training flying seating requirements and jump seat requirements. Ms Scott stated that she wanted to confirm that the Applicant was aware of the seating requirement for a supernumerary. She then followed up with an email to Mr Barry which included a copy of Ms Rooney’s email.

•  Ms Scott stated that she received and reviewed information provided by the other cabin crew members who worked on the same flight as the Applicant on 31 January 2021 (Meagan Francis, Kimberly Dawson, Meagan Pixley and Connie Blanco).

•  Ms Scott stated that she called Meagan Bridgewater (Cabin Manager) because she had not received her version of events. She spoke to Ms Bridgewater briefly and asked her to email a summary.

•  On 14 February 2021, Ms Scott stated that she sent an email to Ms Rutherford with copies of the emails she had received from Ms Rooney, Mr Barry, Ms Francis, Ms Dawson, Ms Pixley, Ms Blanco and Ms Bridgewater. Ms Scott stated that she told Ms Rutherford that she thought the concerns that had been raised by the Cabin Crew should be investigated and she agreed.

The Applicant’s Complaint Against Ms Scott

[138] Ms Scott stated that in or around February 2021, Ms Rutherford told her that the Applicant had made a complaint about her via the Ethics Hotline, alleging that she was biased against her during the investigation into the 15 and 16 June 2019 incident. This the first time Ms Scott stated that she became aware that any complaint had been made.

[139] Prior to making the complaint, Ms Scott stated that the Applicant had never discussed any concerns with her investigating the 31 January 2021 incident. After becoming aware of the complaint, Ms Rutherford told Ms Scott that she should hand over the investigation of the 31 January 2021 incident to her colleague, Ms Anson, to avoid any allegation of perceived bias. Ms Scott stated that before she relinquished the investigation to Ms Anson, she had only done preliminary work to determine if the matter should be investigated.

[140] After handing the matter over to Ms Anson, Ms Scott stated that she was only involved in the investigation to the extent that Ms Anson asked her to confirm what training the Applicant had been rostered to receive as part of her return to work training. She stated that she confirmed that she conducted the initial return to work discussion with the crew, and that she had had a resetting of expectations conversation with the Applicant.

[141] Ms Scott stated that she was not otherwise involved in the investigation after she handed the investigation to Ms Anson, nor was she involved in the decision to take disciplinary action and terminate the Applicant’s employment.

Responding to Other Issues in the Applicant’s Witness Statement

[142] In the Applicant’s witness statement, she stated that she felt unwell during the 31 January 2021 flight. The Applicant stated that she was not asleep but was having moments of ‘unwell dizziness and light headedness. At moments and discreetly [she] would have shut [her] eyes just for seconds to rebalance [herself] and breathe out unwell feelings.’ If this was the case, the Applicant should have notified her colleagues and followed the Cabin Crew Incapacitation procedure, which is to notify the Onboard Leader who will notify Crew Control. Ms Scott stated that the Applicant also did not notify her that she was feeling unwell either before or after the flight, and she first became aware of this when she read the Applicant’s witness statement. Not doing so means that the Applicant put her own safety, and potentially the safety of her colleagues, at risk. Further, Cabin Crew are trained to recognise signs of illness in their colleagues and, to the best of her knowledge, none of the Applicant’s colleagues reported that she appeared unwell or stated that she felt unwell during the 31 January 2021 flight.

[143] Ms Scott stated that a Cabin Crew member feeling unwell during a flight is taken very seriously, because Cabin Crew are mostly on the flight for safety. If it is assessed that a team member is unable to perform their role, there are appropriate procedures set out in Volume B9: Aircrew Emergency Procedures Manual 2.7.3 Cabin Crew Incapacitation.

[144] In her statement, the Applicant stated that in relation to Allegation 3 ‘she did not contact [me] within 48 hours to advise of [her] being late to work yet this has never been advised to do before and I am unaware of this is actually a procedure, or I am being treated different from other employees’. Under the Attendance Policy, if a crew member is late for work and unable to meet their obligations for sign on, they must contact their LCC within 48 hours or as soon as practicable. The Policy also states that failure to do this may result in a separate performance management discussion. Advising Crew Control on its own is insufficient because, as the Applicant’s leader, Ms Scott stated, while they can manage the operational side of things, they need to know if she is running late.

[145] Further, Ms Scott stated that the Applicant absolutely has not been singled out for these types of discussions. Ms Scott stated that she has had similar conversations with all team members who reported late for duties. As the Onboard Leader, one of the Applicant’s responsibilities is to conduct the pre-flight briefing for the Cabin Crew. This could also have an impact on the flights on time performance, as there are no buffers in the timeline for crew from when they arrive at work to sign on until the aircraft departs.

[146] Ms Scott stated that she knew the four crew members who provided information in relation to the allegations that the Applicant was required to respond to, and she was not aware of any interpersonal issues between them and the Applicant. Further, due to the way rosters are drafted, it is unlikely that these four crew members had previously all worked together. The crew members are all very experienced in their roles (for example Ms Francis has 20 years’ experience and Ms Pixley has 13 years’ experience), are all professional and, to the best of Ms Scott’s knowledge, would have no motivation to make false allegations against the Applicant. Ms Scott also stated that she would have no reason to doubt the evidence provided by them.

[147] In her statement, the Applicant stated that Ms Scott also made allegations against her. Ms Scott stated that this is not true; she did not make any allegations against the Applicant in the 31 January 2021 incident that led to her termination.

CONSIDERATION

Section 387 of the Act

[148] It is necessary, in considering whether the dismissal was harsh, unjust, or unreasonable, to have regard to the matters in s.387 of the Act.

s.387(a) - whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)

[149] In considering whether there was a valid reason for the termination of the Applicant’s employment, the reason should be ‘sound, defensible, or well founded’ and should not be ‘capricious, fanciful, or prejudiced.’ 2 Given the dismissal in this matter relates to the Applicant’s conduct, satisfaction must be made out on the evidence that the conduct occurred and justified the termination.3

[150] The reasons for the termination were set out in the termination letter as follows:

“In making my decision regarding your ongoing employment, I have taken into account the following:

(a) the investigation findings that on 31 January you engaged in conduct that was in breach of the Virgin Australia Code of Conduct whilst performing the role of a supernumerary crew member on VA780, when you removed and misappropriated Virgin Australia food products into your crew back [sic] and departed the aircraft with them;

(b) the investigation findings that on 31 January you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Short-Haul cabin Crew Agreement 2015 section 2.9.2, the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 1.2.1 and the Return to Work Training Programme, namely whilst you were performing the role of supernumerary you should have been observing the flight and if at any time you were required to sit you would sit in the jump seat. Instead, you sat in a passenger seat, watched a movie and fell asleep; and

(c) the investigation findings that on 31 January 2021,28 February 2021 and 9 March 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct, the Virgin Australia Cabin Crew Wellness and Leave and Attendance Policy and the Virgin Australia Short-Haul Cabin Crew Agreement 2015, section 2.13 Sign On, Sign Off and Notification of Assigned Duties, namely that did not sign on for duty within the required time, nor notify your LCC, and the airport carpark entrance records indicated that you arrived at the airport carpark after sign on time; and

(d) the investigation findings that on 31 January 2021 and 28 February 2021, you engaged in conduct that was in breach of the Virgin Australia Code of Conduct and the Virgin Australia Volume A4 Cabin Crew Policy and Procedures Manual section 4.2, specifically 4.2.2 Sign on responsibility and section 4.2.4 sign off responsibilities, namely the requirement to sign on and sign off for duties.

Virgin Australia has fully considered the matters you raised in your response to the Show Cause Letter, including, but not limited to:

(a) your response that the investigators chose to substantiate claims without asking you questions in relation to the allegation set out in (a) above. I note that you were issued with a Letter of Allegations dated 1 April 2021 and were provided with an opportunity to respond to the allegations prior to the investigation determining whether those allegations were substantiated or not. For the reasons outlined in the Show Cause Letter, the allegation was substantiated;

(b) Your medical circumstances and the impact on this in relation to your ability to sign in for duty. Whilst I appreciate that your medial circumstances may have impacted your ability to attend for work, there is still a requirement that you follow proper processes in relation to this, namely by advising your leader of when you are unable to attend, and within a reasonable timeframe, to ensure that we are able to make suitable arrangements to ensure we are able to crew flights;

(c) in relation to the allegations regarding grooming, I have not relied on the findings in relation to this in making my decision;

(d) the concerns you raised into why these allegations were raised and investigated. I am satisfied that a proper and fair process has been followed, including providing you with appropriate opportunity to respond to the allegations; and

(e) your length of your service with Virgin Australia.”

[151] The Respondent set out that the requirement to operate as a supernumerary crew person has particular obligations for a cabin crew member acting in that capacity. The Applicant is a long serving employee who, on her evidence, declared a depth of knowledge of the operating procedures, and espoused an awareness of her requirements in the supernumerary role. In addition, the Applicant had just completed training for this role. The training and performing in the supernumerary crew position served as part of the Applicant’s re-entry to her duties at the airline, after a lengthy period away from duties.

[152] The Applicant claimed that some of the evidence given against her by other employees in substantiating the allegations, was ‘petty.’ 4 She stated that whilst she was not acting as a supervisor on the day of 31 January 2021, she retained the authority of a supervisor and had worked with a number of the crew. She surmised that this may have led to employees providing evidence against her, when invited to give their views on her conduct, on that day. She stated there was some prejudice against her, as some employees had questioned the long period that she had been stood down and did not have to work, while still receiving payment. The Employer had requested the crew members on that flight provide their views regarding her conduct, thereby implicitly sanctioning a process of bringing forth information about the Applicant. Undertaking the process in this way was designed to gather supporting evidence. The Employer’s request also provided broader knowledge amongst the crew of alleged non-performance by the Applicant, and disapproval by their Employer of her work on the flight. This was procedurally unfair, particularly as the material was not directly put to her.

[153] The Respondent’s evidence (regarding the Applicant’s supernumerary duties on this day) was that in preparation for her re-entry to work, a ‘training pack’ was presented to the Applicant in a small group training session. The training for her return to work went through the procedures for a crewmember, in the supernumerary position.

[154] The Applicant, in response to the allegations, agreed she did not move to the jump seat as required, but that this was related to her feeling unwell. This gave rise to the Respondent’s further allegation that she failed to communicate this and that she was allegedly seen sleeping. The Applicant stated she closed her eyes momentarily, as she felt unwell without being specifically ‘incapacitated.’ She considered that as a result, she was not properly able to move to the jump seat and interpreted that to do so may have impeded the operation of the doors by other crewmembers, if required. She stated that she had no obligation to operate the doors as a supernumerary crewmember. The Applicant’s evidence (in response to her discharge of the supernumerary duties) was overly complicated and provided evasive answers to the questions. The Applicant raised a number of anomalies in terms of the training and her acquired knowledge of the supernumerary duties:

“To summarise in that paragraph, you say that you were not aware that you were required to perform in-flight services during supernumerary duties?  -That’s a definite no and I actually had a look through - - -

…

Sorry, just to clarify, do you mean, no, you weren’t aware or that you were?  -No, but I need to clarify because what it is is that there are changes that happen within our SOPs - - -

THE COMMISSIONER: Just a minute. What Ms Woolf has asked you is, first of all, were you aware that you had to perform duties whilst you’re supernumerary?  -What I’m aware of is what I’m familiar with. We never had to and I was also - I always did, that was my problem. Then I did get asked by a trainer, that’s why I made such a big deal about it - well, not a big deal, but, yes, she was the one that instilled in me that we’re not to do SOPs and also that will include service. … - - -

So going onto that flight as a supernumerary you’re saying your understanding is that you didn’t have to fulfil any duties as a supernumerary crew person?  -No, not at all. So the duties that we were to perform was one of observation and familiarisation, so it’s just a safety issue. If you haven’t been on board the aircraft for a certain amount of time, so they prefer that you get in there and get familiar with your environment again.

…

MS WOOLF: Just to redirect, my question is about in-flight services during the supernumerary duties?  -Okay.

Was it your belief at the time that you were not to provide in-flight services?  -Yes, it was. It was never mentioned in the SOPs before, so when I did have a look through and noticed that change, I just wonder if that was a new change. I don’t know when it was updated.

Yes. So during this hearing one of Virgin’s witnesses will give evidence that when performing supernumerary duties a team member can be allocated appropriate service duties in flight. Do you agree with that evidence?  -That’s the sentence that is new within that procedure that, yes, I’m talking about at the moment; that I’m not familiar with. Also when I did hear from Rowena, who is the trainer that spoke to me previously, that was her understanding, too, so - - -” 5

[155] These responses were not clearly made in response to the Show Cause Letter. There should have been no difficulty in the Applicant performing these duties.

[156] The Applicant was shown some of the return to work training materials and stated that she did not recollect some of it. The Applicant was taken to the supernumerary duties. She alleged they had been amended. However, the required procedures raised were logical, straightforward, and consistent with her experience:

“Have you got that?  -Okay, yes, the jump seat is there and then I did see the one sentence earlier about service. There it is:

The crew member will be allocated appropriate service duties in flight.

That’s something I don’t recognise personally over my period of time working at Virgin, but I do agree with you it’s definitely there.”

…

?  -That’s hard because that’s a broad term to perform duties, so is that SOPs, is that service, is it - you know what I mean? To be specific we cannot do SOPs, I know that as a definite. We cannot do SEPs either.

Yes?  -And like I just mentioned not long ago, I wasn’t aware of that one sentence. I don’t know if I missed it for 14 years, which I doubt, and it does look foreign - - -” 6

[157] As set out, it was alleged by the Employer that the Applicant had not complied with the procedure to return to the jump seat for take off and landing, or complied with the procedure to communicate she was feeling unwell.

[158] The Applicant distinguished her conduct from the requirement to comply with the communication process that she was unwell and the seating procedure, on the basis of an interpretation that she was not ‘incapacitated.’ Further, she stated in the time available on the flight, she had communicated that she was feeling unwell. She responded to the Respondent’s questions as follows:

“Yes, and then I will take you then down to the next page on 363, which says, ‘Cabin crew incapacitation’?  -Okay.”

…

THE COMMISSIONER: Are you saying that doesn’t relate to you?  -Well, I wasn’t incapacitated. So, I wasn’t unable to – I wasn’t, like, passed out or able to get up or walk or anything. It wasn’t to that extreme.

MS WOOLF: I put it to you that if you’re feeling sick to the point that you might feel faint, which was I believe your evidence before?  -Yes.

That that is the time to advise other cabin crew or your on board leader rather than when you’re passed out?  -Exactly, and that’s what I did do, and plus I didn’t pass out, so that’s great news for me. But yes, so Connie was the first person and Megan would have been the next.

Okay. So - - -?  -And it must have been passed on, the information, because otherwise Megan wouldn’t have been prompted to come and ask if I’m okay.

Are you saying that you told Connie and then nothing was immediately done, so this procedure was not followed, is that right?  -Okay, so I told Connie at a time-restrained situation. So then we landed. Now, what happens when you come down from the aircraft too, because the pressure is releasing your body actually feels better as you get closer to the ground. It’s just, I don’t know, maybe physics or something, whatever it is, and so you actually always do feel a lot better when you’re closer to the ground. It’s when you’re higher up in the air, there’s less oxygen and the air’s thin, so that also affects everyone, even – yes. So, if you’re already feeling a little bit weak in certain areas, it can amplify, yes, once your altitude’s been included.

Is it your evidence, Ms Blackburn, that you were not incapacitated, so there was no need to follow this procedure, which previously you didn’t admit existed - - -?  -The cabin crew incapacitation. I told you ages ago I wasn’t incapacitated, so yes, I was not incapacitated, so I – yes.

But you were unwell enough that you feared that you might be an obstruction to an exit?  -Definitely, yes.

Is that right?  -Yes, that’s correct, but I was - - -

But that wasn’t incapacitation in your view?  -No, it’s not, and I have never been trained(?) - - -

Okay?  -What’s your idea of incapacitation? So, I can tell you mine, and then we can see if there’s any differences, but – yes, there’s time restraints. I’m not responsible for an SOP, so I was not affecting the flight whatsoever.

I’m just going to put it to you, Ms Blackburn, that in fact you didn’t adequately report to anyone that you were unwell, and that if you had reported, then this procedure would have been followed - - -?  -No, it wouldn’t have been.

Do you disagree with that?  -Yes, I disagree with you completely. As cabin supervisor there would have been no need for me to go up to someone who’s saying to me they don’t feel well and me take on an incapacitation procedure. It’s not required whatsoever.

You’re saying that this procedure here on page 363 is not required?  -No, that’s not what I’m saying, but – yes, so what I’m saying is, if you’re feeling unwell, I have a lot of crew that I’ve had underneath me many a times, and I have done a lot of flights - there are many times when those crew have come up to me letting me know they’re okay but they’re just not feeling well. So what we do as a crew member, we keep an eye on our team member. We self-assess ourselves, because we know our bodies better than anyone else; we know the limits that we possibly can and cannot do, and we rely on our intuition as well, and common sense. So that is where I am coming from.”

And you’re saying that that was something you would do as a matter of common sense because you didn’t think that this procedure existed, is that right?  -No, because you’ve just twisted that whole thing around. I am telling you that procedure is there, so it exists. I am telling you the meaning of ‘incapacitation’ is actually if you’re not able to function yourself, so if you’re passed out you cannot move your arms, you cannot say that you’re flopsy. That’s incapacitation. Was that happening at that point in time? No, it wasn’t. Was that procedure therefore needed to be in place? No, it wasn’t. So that’s what I’m telling you; nothing more, nothing less.” 7

[159] The Applicant was cantankerous in providing her evidence regarding compliance with the necessary on-board obligations for the supernumerary 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.

[160] Further, in relation to the allegations of procedures not being followed, as was alleged in the supernumerary position, the Applicant’s responses were as follows:

“A crew member woke Ms Blackburn to return to the 2LA jump seat for landing and that she did not occupy the 2LA jump seat for landing.

THE COMMISSIONER: All right, so that’s landing and - so have you read those allegations, Ms Blackburn?  -Yes, I have read that one and I did deny that completely.

Well, there are a number of allegations there?  -Yes.

So it says you were asleep - you’re coming to those, Ms Woolf?

…

Then if I take you to page 170, which is part of that document, there is a section at the top which says, ‘My response to each allegation is listed’, and then you say:

As mentioned above, I did go and sit in the last row of the aircraft after observing all of the SOPs of boarding and service preparation.

So do you admit that you did sit in the last row of the aircraft on the flight from Brisbane to Cairns?  -I admit that I did a common practice that cabin crew do, yes.” 8

[161] The Applicant was clearly aware of the requirements to sit in the jump seat.

[162] The Applicant (in failing to return to the jump seat and to appropriately communicate that she was unwell) justified her conduct by referencing her experience and different interpretations of processes, such as the ‘incapacitation’ procedure. She denied she was incapacitated and therefore the incapacitation procedure did not apply to her. However, she stated that she reported to Connie that she was unwell. She stated that given she was feeling unwell, she did not consider she should sit in the jump seat and possibly ‘impede egress’ to the doors, particularly given that as a supernumerary she had no obligation to operate the doors:

“And you’re saying that that was something you would do as a matter of common sense because you didn’t think that this procedure existed, is that right?  -No, because you’ve just twisted that whole thing around. I am telling you that procedure is there, so it exists. I am telling you the meaning of ‘incapacitation’ is actually if you’re not able to function yourself, so if you’re passed out you cannot move your arms, you cannot say that you’re flopsy. That’s incapacitation. Was that happening at that point in time? No, it wasn’t. Was that procedure therefore needed to be in place? No, it wasn’t. So that’s what I’m telling you; nothing more, nothing less.” 9

[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. There was debate on the interpretation of the procedures at the Hearing, however compliance with the safety and crewing requirements presented as uncomplicated procedures.

[164] The Applicant, in not taking the jump seat for the plane’s take-off and landing and instead sitting at the back of the plane, considered she was justified in not meeting procedure. Her evidence conveniently ignored her crew obligations on the procedures, when she stated that she had no operational duties with the plane doors, and therefore she unilaterally decided to stay in the passenger seat, at the rear of the plane, not meeting procedure:

“Yes?  -And 2LA is, and the reason why is because these two people are responsible for doors, which are important for people to get out if there’s an emergency. We do take that seriously. If I was to sit at 2LA I am now in the middle of them. Now, I’m not – I’m feeling uncertain, light-headed and everything else that I mentioned. I’m not sure what’s about to happen within the next 10/15 minutes. I made the executive decision to remain out of that area in order to not impede the egress.

But you didn’t tell Megan Francis that at the time?  -I told Connie – no, because timing wasn’t available. So by the time the call-back happened, it’s only about 10 minutes or so before we’re actually on the ground, so Connie - as a team, if the crew member is operating the way they should be - it’s about communication - and so I communicated to her and in hope with the phone call. If not, then I went and spoke to the crew at the back firstly, because that was the first time I decided I really wasn’t well and I did make that decision, and I let them know, and then – it was just a quick turnaround, so before we knew it we were actually boarding again.” 10

[165] The following training extracts were put to the Applicant for responses:

“When performing supernumerary sectors, team members must firstly occupy a non-operational jump seat and also will be allocated appropriate service duties.

…

THE COMMISSIONER: The one sentence that says you can be asked - - -?  -To do service, yes. That was something that was always advised to us in our many years of being there - all crew, not just myself - that we’re not supposed to, but as a nicety and as what a flight attendant, cabin crew, does, we always want to offer to help, so it was just a natural thing for us to put our hands up and, yes, depending on who was on board we did get told to hold back. So that’s where that’s unusual, but it’s good that it’s put in there.

[166] Contrary to the Applicant’s evidence, the instruction in the training was clear that supernumerary crew are to occupy a non-operational jump seat and, plainly, they will be allocated appropriate service duties. The Applicant did not consult on or communicate her differing position.

[167] Again, in replying to a simple question on the operating procedure, the Applicant responded in a circumspect manner:

Yes, my apologies?  -So F5 operating crew on board sit in 2RA, that bit I don’t remember ever seeing before so that’s where I don’t feel like I have seen these slides or else we may not have just discussed them. It might have been just a verbal conversation and that’s probably why, because it was a small group that went through and - - -

…

For clarity, once on board the aircraft the OBL advised you that you were required to sit in the 2LA jump seat for take-off and landing.

?  -That’s completely incorrect. That did not happen at all.” 11

[168] The Respondent’s evidence was that the clear instruction was provided to her.

[169] In assessing whether there was a valid reason for dismissal, the Applicant’s evidence was that it was prejudicial to ask other employees’ their views about her conduct on that flight, in terms of her compliance with supernumerary procedures (and the allegations of removal of Virgin food product). The Applicant had stated that employees may have been motivated to provide false reports:

“In your response. Wouldn’t you agree that those reasons seem like very minor reasons to make accusations of theft against you and to maintain those accusations throughout the investigation process that you have - - -?  -I’m unsure if those people actually realised the extent to what certain statements could occur - the consequences, because there’s a lot of pettiness that is actually brought up, so I’m glad you brought that up. There is a lot of pettiness brought up within the allegations from the respondent and that’s what I’m dealing with, so - - -

…

I put it to you that there was really no reason for the other crew members, including Ms Pixley, to make false reports about you and that in fact they were telling the truth?  -I have no idea what goes on in people’s minds. I can only tell you what goes on in mine. Look, things change. I was away from work for quite a few months, so I haven’t had that opportunity to create such a connection as you do when you’re working in that environment, so, yes, I’m unsure why people would do something - - -” 12

[170] Similarly, in assessing the valid reason, reliance on the prior warning, in terms of the reasons put to her, was improper given that these matters were not notified to her as part of the reason in the Show Cause Letter. The Applicant clearly harboured some resentment to matters that occurred before these allegations, including reference to the prior warning of alleged theft (which she denied) and the associated lengthy period of the investigation and the overall time away from duties. The prior warning of alleged theft was also not raised with the Applicant as part of the show cause procedure and was unrelated to the reasons for the termination. The Respondent had not clearly set out that they intended to agitate any reliance on past matters in the reasons for the dismissal. These matters do not relate to the current non-compliance with the operating procedures on the flight. The conduct required of the Applicant by the Respondent in the circumstances was straightforward. However, the cross-examination of the Applicant revealed her separate reasoning was often based on her consideration of past experience, and alleged changes in the training material, to evade the particular responsibilities of her role on board in that position.

[171] It has been taken into account, with regard to considering whether there was a valid reason, that the Respondent’s policies and procedures for timeliness, and sign on and sign off, were clear. Whilst the Applicant critiqued the Respondent’s presentation of carpark records, demonstrating her lateness, they had clearly not been amended in the reproduction or re-formatting of the Applicant’s relevant arrival entries, as the Applicant alleged. The Applicant’s carpark entry times were later than the times she was required to have reported for duty. The relevant phone contact had also not been made by her to inform her supervisors that she would be unable to attend for work, or to attend on time. The Respondent operates in the time-sensitive aviation industry. Complying with the necessary timeliness obligations is mandatory to enable the Respondent to operate on-time flights, and to avoid delays and penalties. An experienced cabin crew employee, as the Applicant was, is aware of these attendance and reporting requirements.

[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. The Applicant considered that the company doctor also did not follow up on the medical information she had volunteered to her. The circumstances of the medical condition have currently provided mitigating circumstances, but could not be relied upon in the future. The Applicant was significantly experienced in the cabin crew role and the requirement for timely reporting, and compliance with the sign-on sign-off procedures was well known to her. She was also aware of the chain of communication.

[173] In terms of the Applicant’s failure to sign-on at the appropriate time, it was put to the Applicant in cross-examination as follows:

“Let’s move on to the incident on 28 February this year?  -Yes.

You were rostered to start work at 7 am, is that right?  -Yes, that’s correct.

…

Ms Anson will give evidence that on the morning of 28 February you left her a voice message stating that you’d been in the car park since 7 am, your starting time, and if you’d like to see Ms Anson’s evidence there, it’s on page 149?  -This is a transcript of that voicemail, is it, or is it just from her response?

…

MS WOOLF: Thank you, Commissioner. I was saying, Ms Blackburn, that it will be Ms Anson’s evidence that she received this voicemail from you on 28 February?  -Yes.

…

Do you recall leaving that message?  -She was the first person I called.

Okay. So - - -?  -Actually, sorry, CCOS were the first person. They advised me that Jade was the LCC on duty for the day. So that’s when I called her mobile, but yes, I was unable to get in contact with her to talk. 13

[174] The evidence of the Applicant in this regard indicates a willingness to divert from her clear knowledge of the policy requirement:

“MS WOOLF: Thank you. You say – just to take you back, on page 70 of your reply submissions, you say, ‘I never spoke or corresponded with Jade Anson at all on this date’?  -That’s correct, because I never spoke to her one-on-one whatsoever.

Or corresponded with her?  -Well, correspondence to me was - would be that. So she didn’t speak back or communicate back, so I wouldn’t say there was a correspondence.

Well then, I put it to you that that statement is actually a little misleading, because you did in fact correspond with Ms Anson; you left her a voicemail on that day?  -But that’s a one-sided conversation really, so that’s not a correspondence. I don’t know if she heard it. I don’t know if she answered her voicemails. I don’t know. I cannot confirm that she actually got that message at that time. So yes, for my best knowledge, no, I did not physically speak to her or hear her voice talk back to me or anything in regards to communication.

It’s true that you didn’t arrive at the Brisbane Airport car park until 7.30 am that day?  -No, I don’t agree with that whatsoever. Have you got car park records?

…

241. You can see that under the entries for 28 February, your time of entry on 28 February is showing as 7.30 am?  -Okay. So Jade told me it was 7.20-something, but – would there be reasons why her timing would be different to what’s mentioned here?

Well we can go to what Ms Anson said to you?  -This is all with me, so okay.

What I want to take you to though is that this record says 7.30 am?  -Okay.” 14

[175] The Applicant stated that she was sitting at the carpark at 7.00 am, but the carpark records show an entry time of 7.30 am. It was put to the Applicant that the carpark entry stated her entrance at 7.30 am, and that her voice message stated, in contrast, that she was in her car at the airport at 7.00 am, which was when she should have been signed on.

[176] Whilst the Applicant’s representations regarding her incapacity to sign-on at the required time are lengthy, she primarily relies on matters related to her medical condition on the morning of 28 February 2021. However, on the Applicant’s evidence, regarding any of the entry times she cites, she would not have been able to comply with her required sign on obligations.

[177] The Applicant at the Hearing provided detail about the medical condition she was experiencing. She was clearly embarrassed providing evidence of this. The Applicant’s medical condition is noted and has been afforded the applicable privacy. The Applicant stated she became aware of the condition halfway on her journey that morning from the Gold Coast. At that point it was available to the Applicant, as an experienced cabin crew member, to make a plan to break her journey and communicate with ‘crewing’, rather than leave the situation, as she did, to a time that went past her sign on time. 15 It is acknowledged that she was agitated at the time. However, she had a length of operating service, and she knew the necessity for punctuality and early communication of non-attendance. The Respondent’s operations required compliance with this procedure, and the others as detailed.

[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.

[179] The Applicant had been proud of, and made repeated references to, her length of service and that she had operated as a supervisor. It was evident that the Applicant significantly relied on her knowledge gained during this length of service. The Applicant surmised that other employees had been critical of her in their responses to her employer regarding the allegations, and that their reasons for this were related to her lengthy paid period away from the workplace, and that she had previously operated in a position as a supervisor. In combination with the procedural criticism, the Applicant also raised that in substantiating the allegations, the Employer had not put questions to her regarding the conduct for her response in the investigation.

[180] The evidence relating to the allegation that the Applicant took Company food products from the plane, presents that the Applicant placed a number of the snacks into her crew bag. Whilst the Employer, on the reports of crew, considered the number of packets alleged to have been put in her bag was more than the Applicant could have consumed on the flight, there is an absence of evidence that the Applicant removed the product from the flight, which is the actual alleged breach of policy. Consuming the snacks on board the flight was acceptable. The matter was not raised with the Applicant as she got off the flight. However, in removing a quantity of the snacks, even to eat, left the Applicant open to criticism. Her role was not to consume snacks on the plane but to observe the flight, assist with service, and refamiliarise herself.

[181] The allegations arose from mainly one flight over the course of one day, in a re-entry exercise. The aim of the exercise was to allow the Applicant to re-enter the workforce to discharge her duties, after a lengthy period away.

[182] There was no conclusive evidence that in these circumstances alternatives to termination had been realistically considered.

[183] The Employer resiled, without explanation, from pursuing the allegations related to deficient grooming, despite them being substantiated. This raises questions as to whether the other allegations could have also reasonably have been abandoned in pursuit of a separate course of conduct. For example, it was open that a clear statement be made to the Applicant of the Employer’s required standards of conduct, or a discussion between the parties to allow for the resumption of duties with a clear understanding of the Employer’s attitude to future breaches of operating conduct and standards, in the context of this matter.

[184] Having regard to all the matters referred to in relation to the required discharge of the company procedures, there was a valid reason for the dismissal related to the Applicant’s conduct. However, this then must be weighed against the other relevant mitigating factors in the context of the matter.

s.387(b) whether the person was notified of that reason

[185] The Applicant was notified of the reasons under consideration in the Show Cause Letter. The Applicant replied to this letter. The Termination Letter then set out those reasons relied on for the dismissal. Notification of those reasons prior to termination was given to the Applicant. However, no reference was made to the past warning in the show cause reasons, and it did not form part of the written basis for the dismissal. Accordingly, this prior warning has not been taken into account in the current proceeding, given the Applicant was not put on notice that she was required to respond to this or that it formed part of the reasons for termination. The parties disagreed on the basis for that prior warning. To rely on it at the Hearing was procedurally unfair.

s.387(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[186] The Applicant was given the opportunity to respond to the allegations prior to the decision to terminate her employment. Further to the above, the Respondent referred at the Hearing to a prior warning that the Applicant was subject to. This warning as set out above, however, was not reflected in the Show Cause Letter or subsequent Termination Letter and the Applicant had, at all times, refuted that the alleged behaviour, the subject of the warning, breached the code of conduct. It was improper to make any reliance on this warning, in circumstances where it was not clearly referred to in the matters set out in the show cause process or the Termination Letter. That is, the Respondent did not clearly notify the employee that the warning was being relied on in this proceeding, and did not give her the opportunity to respond to such. It was procedurally unfair to rely on the prior warning where not referred to in the document. Neither party led direct evidence on this warning, and it was not a matter properly under consideration in relation to the dismissal. The Applicant was given an opportunity to respond to only those matters in the Show Cause Letter, prior to the termination decision being made.

s.387(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[187] The Applicant stated that in the preliminary meeting of 9 March 2021, she was not afforded the opportunity to have a support person present. The Applicant agreed that, at all other times, she was given (but refused) the opportunity to have a support person present. The Respondent reasonably allowed the Applicant to have a support person present for all of the discussions relating to the dismissal.

s.387(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

[188] The Respondent stated that the Applicant had not been previously warned on matters of lateness, the procedure for consumption of Virgin food product on flight, or the supernumerary procedure. However, the Applicant was a supervisor who had herself declared her experience and knowledge of the policies.

[189] The Applicant had been counselled about the allegation in relation to her presentation. The Respondent, without explanation, exercised the discretion to resile from pressing the allegation relating to grooming as a reason for dismissal. The matters that were the subject of the disciplinary process were known requirements for compliance. The Applicant did raise some changes in the training material and competing policy and procedure interpretations. Some of these changes formed part of the re-entry training. However, these did not change the understanding of required procedures. The Applicant had not been warned about matters related to the issues arising from the supernumerary duties, which arose from her re-entry duties and formed the majority of the allegations. The procedures were well within her operating experience. The Applicant had routinely undertaken the full service and operating responsibilities in her years of services. The supernumerary duties were significantly reduced obligations compared to the regularly required discharge of duties. The Applicant also raised her medical condition in relation to her breaches of sign-on, sign-off conduct. The Applicant stated that a view had ben prematurely formed of her conduct, and that there was no initiative taken by the Employer to check on her or understand her emergent situation causing her to be late. The circumstances of the symptoms being experienced by the Applicant, on at least one of the days, explained her situation but not her failure to call promptly.

s.387(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and s.387(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[190] The Respondent is a significantly large employer with dedicated human resources and industrial relations expertise. Whilst the Respondent has argued that the Applicant was afforded procedural fairness in this matter, some issues were not raised with the Applicant with any temporal proximity to the incidents in question. There were delays in addressing the allegations with her and in effecting the termination. Further, in relation to the incidents where there were allegations regarding the Applicant’s conduct on the on 31 January 2021 flight, the crew were notified and their views of the Applicant’s conduct on the flight were solicited. This was not procedurally fair to the Applicant. It is also clear that the investigation took some time and impacted on the Applicant. These matters, and others, affected the procedural fairness: the length of the investigation, and that the events occurred over a narrow period on what was to be the Applicant’s re-entry after a long absence of the workplace.

[191] It is acknowledged that the Covid-19 pandemic played a part in the delay in investigating and addressing issues with the Applicant. The impact of the pandemic on the aviation industry operations has been significant. The effect of the lengthy investigation and the termination procedure on the Applicant has been taken into account. In her words, she had been devastated.

[192] Whilst the Respondent had dedicated human resources specialists, the resources were also significantly occupied with the staffing matters related to the standdown and the uplift in the aviation industry and associated matters, such as the border reopening, in managing the impact of the pandemic on operations.

s.387(h) any other matters that the FWC considers relevant

[193] The Applicant had made an ethics complaint against Ms Scott around the time the allegations had been made against her. As a result of this, Ms Scott still had a peripheral involvement, but took steps to have Ms Anson undertake the investigation.

[194] However, the Applicant had experienced long periods away from her employment, and it was evident that in raising these compliance matters, she immediately considered that her significant experience was challenged.

[195] The Applicant at all times denied the breaches as set out, provided contrary evidence, and indicated that the crew members would have had concerns regarding their own employment in refusing to provide responses to Ms Scott (about the Applicant). Whilst there is no evidence that the Respondent would have disciplined any crew for refusing to provide responses, it compromised the procedural fairness for the Applicant on the basis of broadly seeking additional evidence from the crew.

[196] The Applicant was a long-standing employee who was not acting in the position of a supervisor. Apart from the prior warning (which was not relied upon), the alleged breaches and events occurred in a confined period, in short proximity to each other, and in the circumstances might have been dealt with by a significantly clear warning, where the result for a repeat of the conduct should have been established.

[197] The primary conduct of concern related to breaches in timeliness of attendance. The Applicant set out that the Respondent had not made sufficient enquiries to establish the reasons for this conduct. The Respondent introduced Dr Souter to this process when putting the show cause allegations to the Applicant. They wanted to confirm that the Applicant had the appropriate capacity to drive back to the Gold Coast following the meeting. The Applicant stated she spent some 45 minutes with Dr Souter. In this time, she stated she conveyed her medical information to the doctor, which she said provided the basis for the incidents when she was not timely in presenting to sign on. The Applicant stated that the Respondent did not respond to this material. The Applicant considered that the information about her medical condition was not taken into account in her explanation for her lateness or inability to meet the particular sign in or sign out requirements. The required level of enquiry was not undertaken by the Respondent when considering the Applicant’s reasons for lateness.

[198] The Applicant, in her evidence, conceded that she had not been as forthcoming about her medical condition to the Respondent, and to those in decision-making positions, as she had been to Dr Souter. However, this was primarily as Dr Souter, being a company representative, had asked about her medical condition in a private setting. She only provided more detailed evidence on her medical issue during the Hearing. However, she stated that when she provided the reasons for her lateness, she had not received either a response from Dr Souter prior to this, or the expected duty of care checks or relevant enquiry from the Respondent. This matter was considered as a further mitigating circumstance to the dismissal.

CONCLUSION

[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.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<PR743793>

 1   Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200 at [18]-[19]; Walsh v Ambulance Victoria [2013] FWCFB 2013 at [26]-[28]

 2   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 3   Edwards v Guidice [1999] FCA 1836 [7]

 4   Paragraph [57] of the 7 December 2021 transcript.

 5   Paragraphs [75]–[82] transcript.

 6   Paragraphs [115]–[124] transcript.

 7   Paragraphs [445]–[464] transcript.

 8   Paragraphs [215]–[227] transcript.

 9   Paragraph [464] of the 7 December 2021 transcript.

 10   Paragraphs [364]–[366] of the 7 December 2021 transcript.

 11   Paragraphs [111]–[189] of the 7 December 2021 transcript.

 12   Paragraphs [56]–[71] of the 7 December 2021 transcript.

 13   Paragraphs [465]–[502] of the 7 December 2021 transcript.

 14   Paragraphs [508]–[515] of the 7 December 2021 transcript.

 15   Paragraphs [555]–[561] of the 7 December 2021 transcript.

 16   [2012] FWAFB 5776.

 17   Ibid. See also Carter v Qantas Airways Limited [2011] FWA 8025.