Virgin Australia Airlines Pty Ltd v DeVania Blackburn [2022] FWCFB 232

[2022] FWCFB 232

Virgin Australia Airlines Pty Ltd v DeVania Blackburn [2022] FWCFB 232 | Case summary | Zoe

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[1] Virgin Australia Airlines T/A Virgin Australia (the Appellant) has lodged an appeal under s.604 of the Fair Work Act 2009 (the FW Act), for which permission to appeal is required, against a decision and order issued on 14 July 2022 by Commissioner Spencer (decision).[1] The decision concerned an application for an unfair dismissal remedy made by Ms DeVania Blackburn (the Respondent) in respect of her dismissal by the Appellant, which took effect on 21 July 2021. The Respondent was dismissed following an investigation into concerns as to the Respondent's compliance with the Appellant's standard operating procedures on 31 January 2021, when the Respondent was undertaking a supernumerary shift, preparatory to her return to work, following a period of absence.

[2] In the decision, the Commissioner found that there was a failure by the Respondent on that date to meet the basic requirements of her role, which constituted a valid reason for dismissal, there were other mitigating circumstances which rendered the dismissal unfair on the basis that it was harsh, unjust and unreasonable. The Commissioner made an order for reinstatement and continuity of service. The Commissioner did not order lost remuneration, based on a finding in relation to the contribution made by the Respondent to her dismissal.

[3] It was not in dispute that the Respondent had been the subject of two prior warnings in 2019 and 2020, albeit the Respondent disputed that she had engaged in at least some of the conduct subject of those warnings. A significant consideration in the Commissioner's finding of unfairness, was a conclusion that because the prior warnings were not referred to in the 'show cause' and termination notices given to the Respondent, the Appellant's reliance on those matters was 'improper'. The Commissioner also found that for the Appellant to rely on prior warnings at the hearing of the Respondent's unfair dismissal application, was procedurally unfair and that the warnings should not be considered in the determination of whether the Respondent's dismissal was unfair. Further findings made by the Commissioner in relation to relevant mitigating factors, were that: statements were inappropriately obtained by the Appellant from other crew members during the investigation; the Respondent had been absent from the workplace for a lengthy period; the impact of a medical condition suffered by the Respondent; and the length of her service.

[4] The decision was stayed on terms agreed by the parties.[2] Directions were set for the filing of submissions by both parties addressing permission to appeal, the merits of the appeal and any application for permission to be represented at the hearing by a lawyer or paid agent. The Appellant sought, and was granted, permission to be legally represented, on the basis that the Full Bench was satisfied that it would enable the matter to be dealt with more efficiently taking into account its complexity. The Appellant was represented by Mr M Felman KC with Mr P Zielinski of Counsel, instructed by McCullough Robertson Lawyers. The appeal was heard by Microsoft Teams video on 12 October 2022.

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[7] In her written responses the Respondent denied the allegations against her and referred to the duration of her career and her commitment to the Appellant. The Respondent stated that she was 'heartbroken' by the allegations and regarded them as defamatory, and that she had previously been recognised for her high performance. Further, the Respondent questioned the validity of the investigation and asserted that the allegations had been fabricated and that a group of people were seeking to degrade and humiliate her, possibly in retaliation for the Respondent raising issues such as failure by crew to properly clean toilets or because of her absence from the workplace.

[8] The Respondent was invited to attend a rescheduled meeting to respond verbally to the allegations and was informed that the meeting would be an outcome meeting and that she would be able to have a support person present. On 21 July 2021, the Respondent met with Ms Ali Rutherford, Crew Culture Manager. The Respondent advised that she had nothing further to add to her response. At the meeting, the Respondent was advised that her employment was terminated effective immediately. This was confirmed in writing by the Appellant on 11 August 2021 (Termination Letter). The Respondent was paid four weeks' pay in lieu of notice, although the Appellant maintained that it could have summarily dismissed the Respondent.

[9] The Commissioner set out evidence from witnesses for the Appellant about an investigation in 2019, which resulted in the Respondent being given a final warning, issued on 28 October 2019. The warning was in relation to a substantiated finding that the Respondent had misappropriated cash from a passenger. The Respondent had stated during the investigation of that matter that she had intended to take the cash and to pay for the passengers purchase with her own card but had forgotten to do so. There was also evidence of a further final warning being given to the Respondent in December 2019, in relation to failure to follow an attendance policy with respect to notification of an absence from work.

[10] The Commissioner then turned to consider the matters in s.387 of the Act. In relation to s.387(a) the Commissioner canvassed a range of matters in her consideration. After setting out the reasons for the termination of the Respondent's employment detailed in the termination letter, the Commissioner considered each of those reasons given by the Appellant for dismissing the Respondent. With respect to the allegation that the Respondent had failed to properly undertake duties required of a supernumerary, the Commissioner found that the Respondent's evidence in the hearing was 'overly complicated and provided evasive answers to the questions' and that the Respondent was 'cantankerous in providing evidence regarding compliance with the necessary obligations for the supernumerary role'.[3] The Commissioner also found that in giving her evidence the Respondent 'engaged in arguments over her interpretation of semantics in the understanding of particular terms and procedures, aimed at complicating clear obligations,'[4] that her response to a simple question was 'circumspect'[5] and that the Respondent showed a willingness to divert from her clear knowledge of a policy requirement in relation to notifying of her inability to sign on at the required time.[6] The Commissioner further noted inconsistencies in the Respondent's evidence about her failure to return to the jump seat on the flight and concluded that the Respondent had not adhered to the requirements of the procedures in relation to safety and crewing and that her refusal to do so was 'unnecessary and belligerent' and a unilateral decision on the part of the Respondent.[7] At [166] the Commissioner said in relation to the Respondent's evidence about her conduct on the Return to Work Training flight on 31 July 2021:

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[12] The Commissioner also found that the Appellant's policies and procedures for timekeeping were clear and that as the Appellant operates in the time-sensitive aviation industry, so that timeliness obligations are mandatory. The Commissioner concluded that the Respondent, as an experienced cabin crew employee was aware of attendance and reporting requirements. In relation to the impact of the Respondent's medical condition, and her assertion that it impeded her ability to present for duty, the Commissioner considered that notwithstanding that the Appellant had an obligation to explore reasons for this issue with the Respondent, it was also the case that the Respondent was negligent in not having discussions about this matter with her direct supervisors or crewing contacts.[8] While noting the Respondent was embarrassed about her medical condition and its impacts, the Commissioner observed that '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.'[9]

[13] Other issues referred to by the Commissioner in her consideration of whether there was a valid reason for the Respondent's dismissal were:

The length of the Respondent's service and her reliance on knowledge gained during her service;

The Respondent's evidence that other employees had been critical of her in their responses to the Appellant about the allegations and their reasons for this were related to the Respondent's lengthy paid period away from the workplace and her supervisory role;

While the Appellant, on the reports of the crew, considered that the Respondent had placed more snacks into her bag than she could have consumed on the flight, there was an absence of evidence that the Respondent actually removed the product from the flight and the matter was not raised with the Respondent as she got off the flight;

By removing a quantity of snacks, even to eat, the Respondent left herself open to criticism as her role on the flight was not to observe, assist with service and refamiliarise herself, rather than consume snacks;

The allegations arose mainly from one flight over the course of one day;

There was no conclusive evidence that alternatives to terminating the Respondent's employment had been realistically considered;

The Appellant 'resiled without explanation' from pursuing allegations relating to deficient grooming on the part of the Respondent, despite them being substantiated, which raised questions as to whether other allegations could also have been abandoned in pursuit of a different course of conduct - for example a clear statement being made to the Respondent about the Appellant's standards of conduct or a discussion to allow the Respondent to resume duties on the understanding of the Appellant's attitude to future breaches of operating conduct and standards.

[14] In relation to whether there was a valid reason for dismissal, the Commissioner said in conclusion:

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[17] In relation to s.387(e), the Commissioner noted the Appellant's statement that the Respondent had not been previously warned on matters of lateness, the procedure for the consumption of Virgin food products on flights or the supernumerary procedure, but also observed that the Respondent was a supervisor who had declared her experience and knowledge of the policies and that the procedures were well within the Respondent's operating experience. The Commissioner also reiterated observations about the Respondent's medical condition and that this may have explained her situation on at least one of the days she was late for work but not her failure to call promptly to advise of this. The Commissioner also considered several issues in respect of s.387(h) of the Act set out in paragraphs [193] - [198] of her decision which can be summarised as:

The Respondent's ethics complaint against Ms Scott which resulted in the investigation being undertaken instead by Ms Anson;

The Respondent had extended periods away from her employment and considered that the Appellant raising compliance issues was a challenge to her significant experience;

The Respondent had at all times denied the breaches put to her, put contrary evidence forward and alleged that crew members were concerned about their own security of employment therefore their responses were tainted;

Whilst acknowledging there was no evidence that the Appellant would discipline crew for failing to provide information in the investigation, procedural fairness was compromised by broadly seeking an account of events from the relevant crew;

The Respondent was a long standing employee;

The breaches occurred over a short period of time and might have instead been dealt with by a clear warning;

Breaches in timeliness of attendance were the primary area of concern and the Respondent's contention that the Appellant had not made sufficient enquiries in respect of this conduct and whether it was a result of her medical condition;

The Appellant had not undertaken an appropriate level of enquiry when weighing up the Respondent's reasons for lateness; and

• The Respondent's concession that she had not raised the medical issues in her own defense when she had the opportunity to do so.[12]

[18] The Commissioner concluded that the dismissal was harsh, unjust and unreasonable. On this basis, the Commissioner made an Orde[r] reinstating the Respondent with continuity of service but without backpay, for the period between the dismissal taking effect and the date of reinstatement. In reaching her decision, the Commissioner adopted the approach of the Full Bench in Carter v Qantas Airways Limited[14] (Carter). Specifically, the Commissioner noted that in Carter, the Full Bench found:

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[32] The Notice of Appeal as initially filed, sets out five grounds with particulars relating to those grounds. In its submissions, the Appellant addressed additional grounds of appeal and foreshadowed that it would seek to amend its Notice of Appeal at the hearing by adding grounds 2A, 6(a) and 6(b). The Respondent did not object to the proposed amendments to the Notice of Appeal and we granted permission for the amendments. The Appellant also indicated at the hearing of the appeal that it did not press grounds 5(b) and (c). The grounds as set out in the amended Notice of Appeal and excluding those not pressed, are as follows:

The Commissioner erred in finding that the Commission could not, or should not, take any account of prior warnings issued to Ms Blackburn because they were not identified in the show cause letter (decision at [170], [185], [186] and [196]);

In finding the views of other employees as to Ms Blackburn's conduct were 'solicited' (decision at [152], [190] and [195]), the Commissioner erred on the grounds that:

the Commissioner made a significant error of fact because Virgin Australia did not ask for the employees' 'views' of Ms Blackburn's conduct in a general sense, but for their 'accounts of [Ms Blackburn's] conduct on their flights' after being notified of concerns about Ms Blackburn, which is an orthodox approach and is not procedurally unfair;

the Commissioner failed to provide adequate reasons for her finding (decision at [190] and [195]) that Virgin Australia's conduct in questioning other employees about the events of 31 January 2021 was procedurally unfair to Ms Blackburn;

the fact that such a finding would be made, or was under the contemplation of the Commissioner, was not put to Virgin Australia and it was therefore denied an opportunity to make submissions or point to contrary evidence, which resulted in a denial of procedural fairness; and

the fact that Virgin Australia sought the accounts of its employees about Ms Blackburn's conduct was not procedurally unfair.

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[34] The Appellant's submissions can be summarised as follows. Ground 1 concerns the Commissioner's finding that the Commission could not, or should not, take any account of prior warnings issued to the Respondent because they were not identified in the Show Cause and termination notices (decision at [11], [170], [185] and [186]). The Appellant submitted that the Commissioner's reasoning in this regard is contrary to the decision of a Full Bench of the Commission in Steve Newton v Toll Transport Pty Ltd[30] which set out principles summarised as follows:

the Commission must assess whether, on all the available evidence, there was a valid reason for dismissal;

that calls for an objective analysis, which is not confined to the evidence that the employer expressly relied upon to effect the dismissal;

if the Commission believes that a valid reason exists that was not advanced by the employer, then it must act judicially and accord the parties procedural fairness before acting on that reason;

this applies equally in respect of prior misconduct that might have formed a valid reason for dismissal, but which was earlier 'condoned' by the employer (including by being the subject of an outcome short of dismissal); and

an employer's condonation of prior misconduct might be relevant to assessing whether a valid reason exists, but it is not determinative.

[35] The Appellant contended that the Respondent was clearly on notice that prior warnings were relied on during the hearing evidenced by the fact that her Form F2 Application sought to deal pre-emptively with those warnings by discounting their relevance. The Respondent was also put on notice when the Appellant filed its initial outline of submissions in the hearing before the Commissioner, that the Appellant sought to rely on the prior warnings to justify the dismissal. The Respondent was cross-examined about the warnings and Ms Rutherford gave evidence for the Appellant at the hearing before the Commissioner, that she relied on the prior warnings as part of her decision to terminate the Respondent's employment. The Commissioner also provided the Respondent with an opportunity to respond in general terms, to anything that had been put to her.

[36] The Appellant submitted that having regard to these matters, the Commissioner's approach in effectively setting aside the Respondent's prior conduct history, was inconsistent with Newton and premised on a mistaken conclusion that that the Respondent was not on notice about this issue. The Appellant also submitted that the way in which the Commissioner dealt with this issue, by not putting the Appellant on notice during the hearing of the intention to treat the warnings in this way, deprived the Appellant of the ability to submit that the Respondent's continued challenge of the prior warnings was in a context where she was able to, but did not, contest those warnings at the relevant time. In this regard, the Appellant referred to provisions in the Virgin Short Haul Cabin Crew Agreement 2015, which were not in evidence before the Commissioner, but would have been referred to, had the Appellant been on notice as to the Commissioner's concern. Further, the Appellant submitted that by putting aside entirely the Respondent's prior conduct history, the Commissioner failed to have regard to an important fact that was plainly relevant to weighing the criteria in s.387 of the Act.

[37] In relation to grounds 2 and 2A, the Appellant submitted that the Commissioner implicitly found that it had requested that crew members provide their views regarding the Respondent's conduct on 31 January 2022 which amounted to sanctioning a process designed to gather supporting evidence and which provided knowledge among the crew about alleged non-performance on the part of the Respondent. The Commissioner also found that the Appellant's conduct in this regard was procedurally unfair. According to the Respondent's submissions, the Commissioner's errors in respect of these matters were:

Misunderstanding how the events of 31 January 2021 came to the Appellant's attention by assuming that information had been solicited when the evidence showed that the Respondent's colleagues had raised the issues with the Cabin Crew Leader on that shift, who passed the matters on stating that she had asked the crew to submit safety reports and send through their accounts of the Respondent's conduct on the flight that day. The Appellant's conduct had been unremarkable and orthodox.

The procedural error identifying how witness evidence was sought was clearly a significant factor that contributed to her finding that the dismissal was unfair and given its centrality it was important for the Commissioner to set out her reasons for drawing that conclusion, which the Commissioner failed to do.

The Appellant had no notice that the Commissioner was considering making this finding, it was not part of the Respondent's case that the witness accounts had been unfairly procured and it remains unclear how the Appellant's collection of materials necessarily resulted in procedural unfairness. The Appellant was deprived of its opportunity to put submissions responsive to the Commissioner's concern.

The duration of the Appellant's investigation process was not material delayed nor did it lead to unfairness in the process of termination and no suggestion in this regard was made by the Respondent.

The Commissioner erred by having regard to the fact that the events occurred over a narrow period when the occurred in the period from 31 January to 9 March 2021 and while the January incident occurred after the Respondent's absence from work this could not be said of the incidents on 28 February and 9 March 2021.

[38] Grounds 3 and 4 concern the Commissioner's finding that reinstatement was an appropriate remedy. The Respondent submitted that The Commissioner made significantly adverse findings as to Ms Blackburn's appreciation of and capacity to follow Virgin Australia's standard procedures.42 They were particularly important having regard to the critical safety role that Ms Blackburn played as a member of Virgin Australia cabin crew (and given her leadership role). The forcefulness of those findings cannot sensibly be reconciled with the subsequent finding that reinstatement was an appropriate remedy. The Commissioner failed to properly take these matters into account (or at all) (Ground 3(a)). According to the Respondent, this discretionary error was compounded by a failure on the part of the Commissioner to disclose her path of reasoning as to how those adverse findings did not preclude reinstatement. The Respondent also pointed to broader considerations relating to the Respondent's behaviour during the investigation and the hearing, including making broad-based and speculative attacks on the credibility of witnesses, and in the hearing, alleging professional misconduct and bias on the part of the Appellant's managers and that they had contrived her dismissal for some unspecified collateral reason.

[39] It was submitted that, as was the case in Lee v Superior Wood[31] the Respondent did not merely present her case in a robust way; her behaviour crossed a line that caused Virgin Australia to submit that the prospect of her return to work was "untenable". That was a substantial consideration that the Commissioner failed to have any regard to (Ground 3(b)). Further, the Commissioner failed to provide adequate reasons disclosing how she considered this issue in the exercise of her discretion (Ground 4). It was also submitted that the Commissioner's approach to prior misconduct caused an error in respect of her discretion to order reinstatement, because whether or not an applicant has a good employment record is a factor relevant to whether reinstatement is an appropriate remedy.

[40] In Ground 5(a) the Appellant asserted that the Commissioner made a significant error of fact by holding that that there was "no conclusive evidence that ...alternatives to termination had been realistically considered"[32] The ultimate decision maker, Ms Rutherford, gave evidence that, prior to dismissal, she sought advice from her manager and a human resources specialist as to whether an alternative course to termination was appropriate. Ms Rutherford also gave evidence that she rejected alternatives because of the seriousness of the Respondent's conduct and her prior disciplinary history. Ms Rutherford's evidence in this respect was not challenged in cross-examination.

[41] In relation to Ground 6 which concerns whether the dismissal was unfair, the Appellant submits that in listing the factors that the Commissioner regarded as contributing to the unfairness of the termination of Ms Blackburn, the Commissioner included the fact that Ms Blackburn was the subject of a disciplinary procedure that 'she considered' was invalid.[33] Whether Ms Blackburn herself considered the disciplinary procedure as 'invalid' was an irrelevant consideration in assessing whether the termination was harsh, unjust or unreasonable. The requirement for the Commission to form its own view about the procedural fairness accorded to an employee is a substantially different consideration to an employee's own personal view of the validity of the disciplinary procedure. There was no evidence before the Commission, nor was it ever put, that the Appellant did not comply with its own disciplinary processes - such as to create invalidity in that process. The Commissioner erred in taking this into account (Ground 6(a)).

[42] It was also submitted that the Commissioner erred by concluding that part of the unfairness to the Appellant was that matters the subject of the disciplinary procedure were dealt with on an aggregate basis.[34] It is unclear how dealing with the Appellant's issues on an aggregate basis was unfair and the Commissioner did not expand on this in her reasons. Further, there was no suggestion during the course of the investigation by the Appellant that dealing with the issues in the aggregate caused the Respondent any prejudice or imposed a level of unfairness on her. It was also the case that no such point was pressed at hearing by the Respondent and the Commissioner did not raise with the Appellant the possibility that this factor would be weighed against it in determining that the termination was harsh, unjust or unreasonable. The Commissioner erred by taking this into account (Ground 6(b)).

[43] The Appellant submits that permission to appeal should be granted based on a clear disharmony between Newton and the way in which the Commissioner dealt with the Respondent's prior conduct history. The Commissioner's findings on reinstatement are also counterintuitive and manifest an injustice. It is in the public interest for those matters to be corrected on appeal. In addition, the decision raises questions of general importance as to whether it is appropriate to reinstate a worker against whom the Commission has made serious and numerous adverse findings as to their safety compliance. The Appellant also submits that the Full Bench ought to determine for itself that the Respondent's dismissal was not harsh, unjust or unreasonable, or if necessary, that reinstatement is not appropriate in the circumstances.

[44] In oral submissions at the hearing, the Appellant traversed the Commissioner's findings in relation to the s.387 considerations and said in relation to the criteria in s.387(a) that the Commissioner found that allegations 2, 3 and 4 had been substantiated. The Commissioner was not satisfied that the Respondent removed food products (allegation 1) and allegation 5 in relation to grooming standards was not pressed by the Respondent. The Commissioner found on that basis that there was a valid reason for dismissal. The Commissioner also concluded that s.387(b) had been satisfied and that the Respondent was notified of the reasons for her dismissal in the Show Cause Letter and then in the termination letter. While there was a reference to prior warnings in the Commissioner's consideration of s.387(b), this was an error.

[45] In relation to s.387(c) the Commissioner found that the Appellant gave the Respondent an opportunity to respond to allegations prior to termination of her employment. In relation to s.387(d), the Commissioner found that the Respondent was allowed to have a support person present. While the dismissal was based on conduct rather than performance, the Commissioner found that the procedures about which her employment was ultimately terminated were well within her operating experience, notwithstanding that she had not previously been warned about supernumerary duties and signing off and on and not notifying of lateness. While the Commissioner's conclusions in relation to ss.387(f) and (g) noted that the Appellant is a large employer with a dedicated human resource function, the Commissioner also made observations in relation to the impact of COVID-19 on the Appellant, when that was not a matter relied on at the hearing. The consideration at [190] - [191] in relation to these grounds also raises a number of issues relevant to the appeal including findings by the Commissioner that there was a delay in addressing the allegations with the Respondent, the views of the crew on the flight on 31 January 2021 were 'solicited', there was a denial of procedural fairness to the Respondent in relation to how the views of other crew members were obtained and the investigation took some time, which impacted the Respondent adversely.

[46] In relation to s.387(h) it was submitted that the Commissioner's consideration was attended by error as a result of earlier findings. The Appellant also submitted that in drawing her conclusion that the dismissal was unfair, the Commissioner did not weigh up the s.387 factors against each other but made general comments and made criticisms of the Appellant and the Respondent before stating - without identification - that all facts and circumstances had been taken into account in concluding that the dismissal was harsh, unjust and unreasonable.

[47] Specifically in relation to Ground 1, the Appellant traversed the evidence that was before the Commission in relation to the prior warnings. Evidence about the warnings and the conduct to which they related, were dealt with in the witness statement of Ms Scott. The warnings were said to be important for two reasons. Firstly, they were considered by the decision-maker Ms Rutherford, as to whether there were reasonable alternatives to dismissal. One of the considerations was that the Respondent had been warned before, with a final warning which lapsed and was then reinstated. Secondly, the prior warnings were relevant to whether the Respondent should have been reinstated. The first of those warnings was for an incident that occurred on 15 and 16 June 2019, when the Respondent was found to have misappropriated cash which she had accepted from a guest to purchase items during a flight, in circumstances where the Appellant did not accept cash, and had then failed to put the transaction through on her own card. The second warning was for non-compliance with the Appellant's attendance policy, in circumstances where there was evidence from Ms Scott that the Respondent had been counselled about the need to comply with that policy on some ten occasions in the previous eight years.

[48] The Appellant accepted that it did not rely on the prior warnings to establish that it had a valid reason for dismissing the Respondent, and that the warnings were not referred to in the Show Cause letter. However, the Appellant contended that the Commissioner was wrong to disregard the warning in the proceedings 'holus - bolus' and to find that this resulted in procedural unfairness to the Respondent. The error was compounded by the Commissioner's finding at [186] of the decision that it was improper for the Appellant to rely on the warning, when it was not mentioned in the show cause process and that the Appellant had not put the Respondent on notice that it intended to rely on the warning at the hearing. The Appellant also referred to the Commissioner's comment at [186] that neither party led direct evidence on the prior warnings and contended that this finding was not correct and that the warnings were the subject of extensive evidence and submissions in the proceedings at first instance. The subject of the prior warnings was also referred to in oral submissions to appeal Ground 5(a) which asserts error on the part of the Commissioner in finding that the Appellant had not considered alternatives to dismissal when Ms Rutherford had given uncontested evidence to the contrary including that she had regard to the warnings the Respondent had previously been given, and the second chance the Respondent was given despite a finding of dishonesty on her part.

[49] In relation to Grounds 2 and 2A, it was contended that it was perfectly sensible and appropriate for Ms Rooney, who was the crew leader on the flight on 31 January 2021, and had concerns about the Respondent's conduct, to ask other crew members to send an email recounting what they saw. While the emails sent by crew members may not have been provided to the Respondent, their substance was. It was also contended that the process adopted by the Appellant in gathering information could not be procedurally unfair and was in fact very fair to the Respondent. Further, while the Respondent had complained in her submissions and evidence about inconsistencies in the accounts of events relied on by the Appellant to establish her misconduct on that date, the Respondent had not complained of the fact that the views of those crew members were sought. If the Appellant had gone straight to a show cause process without asking other crew members on the same flight what happened, the Appellant would be rightly criticised. In those circumstances, the Appellant needed to be put on notice that this was a problem so that it could be addressed.

[50] It was also said to be a public interest point, that the decision could be relied upon as a basis for asserting that seeking the views of people who witness an event, is problematic. Findings of the Commissioner that the events occurred over a very narrow period were also said to be erroneous given that there was a six-week span between the flight on 31 January and the conduct on 9 March 2021. Further, any delay in the investigation of the allegations was contributed to by the Respondent. Finally, it was submitted that the fact that the matters were dealt with on an aggregate basis was not the subject of a complaint by the Respondent and the basis of any unfairness because of this was not explained by the Commissioner. Arguably, it would have been unfair to the Respondent if the matters were disaggregated.

[51] With respect to the appeal grounds relating to reinstatement of the Respondent, it was contended that the adverse findings about the Respondent were not just in relation to her attitude at the hearing but also her attitude to her employment and to what she had done. In this regard, it was submitted that the Respondent simply did not understand what she had done and the implications of her conduct, evidenced by the Respondent's submissions that the prior warnings resulted from investigations that were closed with no outcome as allegations were unable to be substantiated. The Appellant submitted that this was the opposite of what actually happened. Reference was also made to the Commissioner's conclusion that the case was analogous with Carter v Qantas Airways Limited. The Appellant contended that there were in fact significant differences between the cases including that there was a culture of non-compliance similar to that engaged in by the employee in that case, the employee had been refused a support person, there was no evidence that alternatives to dismissal were considered, the employee in that case had never received any counselling or warnings and had received a nomination for an award for excellent service a year prior to his dismissal.

[52] The Appellant also submitted that the Full Bench had all the necessary material before it to determine the matter for itself if the appeal succeeded, partially or in full. It was also pointed out that the finding of valid reason had been made by the Commissioner at first instance, and it was not quibbled with by the Respondent. There was also material in relation to what the Respondent had earned since the dismissal which would only be relevant if the Appeal did not succeed. If this was the case and the Full Bench found that the dismissal was unfair but did not order reinstatement, the Appellant would be happy if this material was admitted and would not require to cross-examine the Respondent in relation to it. Further, it was submitted that if the appeal grounds were upheld, almost all the reasons why the dismissal was found to be unfair would fall away, and all that would be left would be the s.387 considerations that were met and with which the Respondent had not taken issue. Finally, the Appellant noted that it would be less costly and more efficient for the Full Bench to determine the matter for itself rather than sending it back for a further hearing.

[53] As noted below, the Full Bench permitted the Respondent to file additional written submissions in response to the Appellant's oral submissions at the hearing of the appeal. The Appellant was also provided leave to file written submissions in reply. In reply submissions, the Appellant said that four staff members provided reports as to the Respondent's conduct on 31 January 2021. While the Respondent was critical of the fact that, of those staff members, only Ms Pixley gave evidence during the hearing, the Commissioner was entitled to have regard to the three other employees' accounts and to give them appropriate weight (as is the Full Bench). Quite apart from s.591 of the Act, the accounts were contained in business records and would have been admissible pursuant to the formal rules of evidence in any event. Notwithstanding the Commissioner's procedural fairness criticism that the employee accounts were 'solicited' (which is the subject of Ground 2), the accounts provided by the three other employees were part of the factual matrix which the Commissioner relied upon to find that there was a valid reason for the Respondent's dismissal and there has not been any challenge by the Respondent to that finding.

[54] The Appellant observed that it remains unclear whether the Respondent formally challenges the Commissioner's decision to decline an order to restore lost pay. No cross-appeal was filed by her and no application for an extension of time has been sought. The Respondent pointed to paragraph [208] of the Commissioner's decision, where the findings as to the extent to which the Respondent's conduct contributed to her dismissal was summarised as follows:

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[56] The Respondent submitted that the prior warnings were from an investigation in 2019 and 2020. Each of the investigations was closed with no outcome, as the allegations were not able to be substantiated. According, to the Respondent, the Commissioner could not understand the purpose of the final warning, given that the investigation was closed with no outcome, the Respondent remained in her role and the allegations were not substantiated. The Respondent disputed that the Commissioner ignored the prior warnings or had no regard to them. Instead, the Commission determined that he prior warnings simply did not have any relevance given that the investigations were closed with no outcome.

[57] The Respondent contended that the Commission erred in failing to highlight that the third set of allegations were not substantiated by witness statements but were determined as being proven by Ms Anson. The Respondent submitted that the lack of evidence to support the third set of allegations was made apparent by the fact that during cross-examination, Ms Anson was unable to provide information about the source of the allegations. Further, Ms Anson accepted that none of the witnesses had stated that the Respondent removed food items from the plane on 31 January 2021, indicating that the allegation was fabricated and falsely substantiated.

[58] The Respondent also submitted that the witnesses who stated their views were unable to be tested in cross examination. The only key witness who was cross examined was not a strong, honest witness and created a new story and had selective memory loss, on certain details but was able to provide detailed information on other events that occurred on the same day as those she claimed not to remember.

[59] The Respondent contended that the Appellant's disciplinary policy was not followed correctly. In this regard, the Appellant refused to advise the Respondent of any details to ensure fairness in her response, and documents requested to be provided to the Respondent by the Appellant were not provided. According to the Respondent, the investigation was neither honest nor transparent and allegations against her were substantiated without witness statements being provided by those who made the allegations. The Respondent said that the disciplinary procedure dealt with fabricated allegations against her. The Respondent also said that because the Appellant dealt with the allegations on an aggregated basis, previous investigations which were closed without an outcome, were included in the allegations which led to the Respondent being dismissed. On the basis that the prior allegations were not substantiated, the Respondent contended that the most recent allegations should also not have been substantiated. The Respondent further submitted that during hearing the Commissioner requested that certain documents be produced by the Appellant including records of conversation with CCOS and Crewing, that Ms Anson agreed to provide. These were not provided by the Appellant and this was not mentioned in the Commissioner's decision.

[60] The Respondent maintained that she did not breach procedures and on closer inspection, it became clear that there were no procedures in place for certain situations. For example, there is no procedure should a crew member fall ill while the crew member is rostered on a flight as a supernumerary. The Respondent also maintained that decisions she made on that day, were not a breach of procedure but made with the priority of safety and safety only. In this regard, the Respondent said that to remove herself from being seated in a position where she might impede the egress of Crew performing duties was the best and safest decision to make. The procedure for Supernumerary Crew does not mention anything regarding what should and should not have been done if one was to fall ill while undertaking this role.

[61] The Respondent questioned what requirements there are for a supernumerary crew member on flights longer than 1.5 hours once all standard operating procedures have been observed. The Respondent said that she is a supervisor and while rostered as a supernumerary crew member on the flight on 31 January 2021, chose to 'study her iPad apps which included all Supervisor tools and also an entertainment app'. The Respondent also said that she looked at removing unnecessary data storage such as photos, from her iPad. This was not considered by the Appellant, and it was assumed that all the Respondent did on that flight was to watch a movie and sleep.

[62] The Respondent maintained that crew are to contact crewing if running late and it is normal practice for crewing to advise crew member their decision in relation to what actions are to be taken. Examples of instructions that may be given to crew by crewing is for the crew member to keep crewing up to date, make their way to the aircraft and that crewing will sign on the crew member as they are aware of where the crew member is. The Respondent said that this practice has been in place for the entire time she has worked for the Appellant yet both the Respondent's witnesses said under cross-examination, that they are unaware of what procedure is in place if a crew member is late, as for more than 10 years they both have never been in the position of being late to work at all.

[63] The Respondent took issue with the Commissioner's conclusion that she contributed to her dismissal and to deny the remedy of compensation. The Respondent contended that the Appellant engaged in professional misconduct and unlawful behaviour and due to these matters, she believes that she is entitled to the remedy of compensation, which we assume is in addition to reinstatement. In relation to public interest, the Appellant said that it is important that professional misconduct and unlawful behaviour within workplace investigations be mentioned and highlighted as no one should be able to use such ill practices against an employee. For the public to be aware of these matters would enable them to be prepared and able to handle those wrongs by employers appropriately and to also know that if they have or are experiencing such behaviour by others in the workplace, then they are not alone. The Respondent concluded her submissions with the following statement:

[94]

[64] To assist the Respondent to present her case, she was permitted to provide further written submissions in response to the Appellant's oral submissions at the hearing of the appeal. In her further written submissions, the Respondent asserted that, 'as per the Queensland Industrial Relations Commission' an appeal can only be made on the grounds of error of law or excess or want of jurisdiction. As the Commissioner was acting within power when she made the decision, it is necessary for the Appellant to establish that there was an error of law so that the conclusion reached by the Commissioner was not correct. The Appellant also canvassed principles said to be applicable to the present appeal, which can be summarised as follows. If the conclusion was reasonably open on the facts, then the Full Bench is not permitted to intervene, and it is not enough that the Full Bench would have come to a different conclusion to that of the original decision maker. The Respondent also submitted that the public interest is not satisfied simply by the identification of error or a preference for a different result. An unsuccessful party should not be permitted to re-argue its case, in the absence of error. Errors of fact must be material to the outcome of the case and not all errors of fact warrant correction on appeal.

[65] The Commissioner had latitude about the decision under appeal and it is a decision that tolerates a range of outcomes, on which reasonable minds may differ. Such a decision can only be challenged by showing error in the decision-making process. The Full Bench can intervene on the grounds that the decision under appeal was unreasonable or plainly unjust or contrary to the overwhelming weight of evidence. Appealable error is not demonstrated simply because a decision maker failed to give a particular matter sufficient weight or proper regard, unless the failure was, in substance, a failure by the decision maker to exercise discretion properly.

[66] The Respondent submitted that the Appellant had not demonstrated such errors on any of the grounds of appeal. In relation to the allegations that led to her dismissal, the Respondent maintained that the allegation that she misappropriated food items was falsely substantiated by the Appellant, involved 'professional misconduct' and the Commissioner found that this did not occur. This was also said by the Respondent to amount to a 'sacrilegious definition of procedural unfairness'. The Respondent also maintained that as there is no procedure dealing with circumstances where a supernumerary crew member falls ill during a flight, there could not have been a breach on her part. Further, the Respondent maintained that the decision to remove herself in order to not impede the egress of crew was made on safety grounds and she was not asleep or watching a movie during the flight but instead remained in her seat and communicated to the best of her ability, with the crew. According to the Respondent:

[96]

[67] With respect to other allegations about alleged breaches of the sign in and sign off procedures the Respondent said that she had mentioned numerous times and throughout the investigation and hearing, that she was advised by crewing that they would sign her on for duty and that she should make her way to the aircraft. According to the Respondent, the Commissioner requested documents be provided by the Appellant which Ms Anson said she was able to do, and to date, no documents have been provided. The Respondent said that she signed on 31 January by Company approved iPad as all other crew had gathered and left the aircraft together before the Respondent. The incident on 28 February was said by the Respondent to be an anomaly as she had signed off mid duty and that is considered to complete sign on provided the appropriate procedures are followed within 24 hours, which the Respondent maintains that she did. This communication was also to be provided by Ms Anson and was not provided.

[68] In relation to the allegation 5 about her failure to adhere to grooming standards, the Respondent said that the fact this allegation was withdrawn at a later stage, without reason, raised questions about the authenticity of the other allegations. The Appellant also said that allegations 2, 3 and 4 were the subject of procedural errors made by the Appellant and were not based or substantiated on facts or evidence. According to the Respondent, this suggests the dismissal was unjust, unreasonable and harsh. The Respondent accepted that she had an opportunity to respond to the allegations but maintained that her response was not taken into consideration or measured against the statements of others and was instead ignored and only the statements of other persons were considered in the decision-making process. The Respondent also said that she had a grievance with the Commissioner's decision because she was not awarded a financial remedy in the form of lost income between the date of her dismissal and reinstatement. The Respondent disputed that she had contributed to her dismissal. The Respondent also took issue with the Commissioner's perception that she felt superior and believed that she knew more about the Appellant's procedures than the LCCs. The Respondent denied that she had ever stated she felt superior and said that if anything, she was 'frustrated at the chosen absent mindedness of the LCCs when asked about the procedures.' In conclusion, the Respondent said:

[99]

[71] Ground 1 alleges that the Commissioner erred by finding that the Commission could not, or should not, take any account of prior warnings issued to the Respondent because they were not identified in the Show Cause letter. In its submissions, the Appellant formulated this ground more generally, as the Commissioner failing to have regard to the warnings issued to the Respondent. The paragraphs of the Commissioner's decision referred to in the appeal ground indicate that the Commissioner made two findings in relation to the prior warnings, related to procedural fairness.

[72] Firstly, the Commissioner concluded that because the prior warnings were not referred to in the Show Cause Letter setting out the allegations against the Respondent and the letter advising the Respondent of the termination of her employment, it was 'improper' for the Appellant to rely on the prior warnings as reasons for dismissal (at [185], [186] and [196]). Secondly, at [186] the Commissioner concluded that for the Appellant to rely on the prior warnings at the hearing of the Respondent's unfair dismissal application, was procedurally unfair, because the Respondent was not notified of this. Accordingly, the Commissioner determined that she would have no regard to the prior warnings in her consideration of the matters in s.387 of the Act including as to whether there was a valid reason for the Respondent's dismissal. We also note that in addition to deciding to exclude evidence about the prior warnings, the Commissioner relied on the conclusions about procedural fairness, which led her to exclude evidence of the prior warnings, as a basis for finding that the Respondent's dismissal was unfair.

[73] In our view, in deciding to exclude evidence of the prior warnings, the Commissioner acted upon a wrong principle. We are also of the view that the conclusions upon which the Commissioner based her decision to exclude evidence of the prior warnings, and which were relied on as grounds for finding that the Respondent's dismissal was unfair, involved significant errors of fact and were extraneous and irrelevant to the required exercise of weighing the matters set out in ss.387(a) - (h). These errors are inter-related.

[74] In relation to the error of principle, the way the Commissioner dealt with the prior warnings is inconsistent with the Full Bench decision in Newton v Toll Transport Pty Ltd. In that case, the Full Bench distilled principles relating to the extent to which prior misconduct may be relevant in assessing whether a dismissal is unfair and the way that consideration of prior misconduct may arise during the course of a hearing into an unfair dismissal application. The Appellant in that case contended that:

[107]

[78] Three points may be made about the implications of the Commissioner excluding the prior warnings from her consideration. Firstly, the warnings were part of the factual matrix that existed at the time the Appellant decided to dismiss the Respondent. The Appellant was entitled to rely on the prior warnings at the hearing before the Commissioner to support its contention that there was a valid reason to dismiss the Respondent. The Appellant was also entitled to rely on the warnings as a matter relevant to the overall exercise of weighing the matters in s.387, which the Commissioner was required to undertake. This was so, regardless of whether the Appellant referred to the prior warnings in the Show Cause letter or the termination letter or otherwise relied on them as reasons for dismissal of the Respondent at the relevant time.

[79] The Commissioner's decision to exclude consideration of the prior warnings from her assessment of the s.387 matters, resulted in an important aspect of the factual matrix, being disregarded. That approach was inconsistent with established authority, set out in Newton v Toll Transport Pty Ltd and earlier cases, notably the High Court decision in Byrne v Australian Airlines Ltd. We agree with the Appellant's submission that by putting aside the Appellant's prior conduct history, the Commissioner failed to have regard to an important fact, that was plainly relevant to weighing the criteria in s.387 of the Act. This was both a failure to take a material consideration into account and an error of principle.

[80] Secondly, the basis upon which the Commissioner decided to exclude the prior warnings involved an error of fact. Contrary to the Commissioner's finding, direct evidence in relation to the prior warnings was led in the hearing at first instance. We accept the Appellant's submission that the Respondent knew that the prior warnings were relevant to the decision to dismiss her and that she was on notice that the prior warnings would be relied on at the hearing. The Respondent pre-emptively referred to the warnings and the events that preceded them in her Form F2 Application for an unfair dismissal remedy and her witness statement in support of her application. The Appellant referred to the prior warnings in its Form F3 Response to the application. Details of the warnings, the events that preceded them and the investigations undertaken by the Appellant, were also set out in the witness statements filed by the Appellant in the proceedings at first instance. The decision maker gave evidence that she relied on the warnings in the process of deciding to dismiss the Respondent. That evidence was not contested. Further, the Respondent was cross-examined about the prior warnings and provided her views in relation to them.

[81] Given the impact on the Commissioner's decision of excluding consideration of the prior warnings, this was a significant error of fact which was directly relevant to the outcome at first instance. The Commissioner was bound to have regard to that evidence in considering whether there were facts that existed at the time of the dismissal, which justified the dismissal. This would have been the case even if the prior warnings were not expressly advanced as a reason for the dismissal by the Appellant at the first instance hearing.

[82] Thirdly, as noted by the Full Bench in Newton v Toll Transport Pty Ltd, before deciding on the relevance of the prior warnings to the question of whether there was a valid reason for the Respondent's dismissal, the Commissioner was required to accord the parties procedural fairness. There is no indication in the transcript of proceedings that the Appellant had been put on notice that the Commissioner would take the approach of excluding evidence about the about the prior warnings, which was advanced by the Appellant at the first instance hearing, either in relation to the validity of the reason for dismissal or the other matters in s.387 of the FW Act.

[83] In the present case, the prior warnings were relevant to the question of whether there was a valid reason for dismissal because they evidenced previous conduct on the part of the Respondent involving breaches of the Appellant's policies and procedures. The evidence does not support the Respondent's assertions that the prior warnings were invalid or that the conduct which was the subject of the prior warnings was not substantiated. To the contrary, the prior warnings were issued to the Respondent on the basis that the conduct was substantiated and, other than that the Respondent disputed the warnings in her submissions at the hearing before the Commissioner, there is no basis to find otherwise. By considering for the purposes of s.387(b) that the Respondent had not referred to the prior warnings in the show cause letter, and excluding the prior warnings on this ground, the Commissioner erred by failing to have regard to a relevant matter. The Commissioner's view about the prior warnings also affected her consideration of the matter in s.387(c).

[84] We conclude that the exclusion by the Commissioner of the prior warnings from her consideration of the matters in s.387 resulted in a failure to properly balance those matters. Finally, we note that although it was not advanced as an appeal ground, we are also of the view that paragraph [186] of the decision makes clear that the Commissioner considered that the Respondent was not aware that the warnings would be relied on in "this proceeding" was procedurally unfair. For the sake of completeness we note that the matters in ss.387 (a) - (h) are directed at facts and circumstances as they existed at the time of a dismissal, with the possible exception that s.387(h) allows a broader range of considerations. However, the question of fairness in a hearing in relation to an unfair dismissal application can have no relevance to the considerations in those sections. By taking into account procedural fairness related to the conduct of the hearing into the Respondent's unfair dismissal the Commissioner was guided by an irrelevant matter, resulting in failure to take into account a material consideration - the prior warnings.

[85] For the reasons set out above, the Commissioner was bound to consider the prior warnings based on the evidence before her. If the Commissioner was of the view that the manner in which the prior warnings arose during the proceedings could result in procedural unfairness to either party, adjustments to the hearing schedule and process could, and should have been made to address this. For these reasons, appeal Ground 1 is upheld.

[121]

[96] It is next necessary for us to determine whether the Respondent's dismissal was harsh, unjust or unreasonable having regard to the matters specified in s.387 of the FW Act. In relation to s.387(a), we find that there was a valid reason for the Respondent's dismissal related to her character or conduct. We note that the reasons for the termination were set out in the termination letter[51] and that these reasons now exclude Allegation 5 as the Appellant withdraw this allegation during the course of these proceedings. Considering the factual matrix as a whole, we are satisfied that the allegations against the Respondent are sustained. We are satisfied the Respondent placed snacks in her bag and more likely than not removed them from the aircraft and subsequently misled the Respondent as to her response. Further, we are satisfied that the Respondent failed to follow the Appellant's policies and code of conduct in regard to her performance in the supernumerary role and in regard to her obligations for timely attendance at work. Therefore, we find the Appellant had a valid reason to dismiss the Respondent from her employment.

[97] In relation to ss.387(b), (c), (d), (f) and (g), we agree with and adopt the conclusions reached by the Commissioner in relation to these matters.

[98] In relation to s.387(e), whether the Respondent was warned about unsatisfactory performance before the dismissal, we draw a different conclusion to the Commissioner on this matter. Considering the evidence before the Commission in relation to numerous previous warnings on matters of lateness over a number of years,[52] the role of a supernumerary on flights including the procedures required to be followed[53] and the procedure for consuming food products on the flight,[54] we are satisfied that the Respondent was fully aware of her obligations and that the decision-maker took into account that the Respondent had been warned about conduct of this type on previous occasions.[55]

[99] In relation to s.387(h), we note the following other relevant matters:

The Appellant had an obligation to investigate the allegations that had been raised about the Respondent and we find it did so in a proper, open manner. The Appellant sought observations and did not lead witnesses to a particular path. A failure to properly investigate those allegations would have amounted to a lack of procedural fairness.

• In respect of the Respondent's conduct as a supernumerary, we find that she was aware of her role and chose not to comply with the correct procedures. Further, during the initial hearing, she obfuscated, was vague and evasive in answering the relevant questions on this point.[56]

At a glance

Court

Decision date

Before

Source

Judgment (160 paragraphs)

Virgin Australia Airlines Pty Ltd v DeVania Blackburn [2022] FWCFB 232 (12 December 2022)

Parties

Legislation Cited (1)

Cases Cited (9)