Linnane Andruszko v Virgin Australia Airlines Pty Ltd T/A Virgin Australia

[2013] FWC 1075

[2013] FWC 1075

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Linnane Andruszko
v
Virgin Australia Airlines Pty Ltd T/A Virgin Australia
(U2012/12876)

COMMISSIONER GREGORY MELBOURNE, 3 MAY 2013

Application for unfair dismissal remedy.

Introduction

[1] This matter involves an application brought by Linnane Andruszko (the Applicant) under s.394 of the Fair Work Act 2009 (the Act) alleging unfair dismissal. (The Applicant indicated she is most often referred to by her middle name, Kristy). The Respondent is Virgin Australia Airlines Pty Ltd T/A Virgin Australia (the Respondent). The Applicant appeared on her own behalf. Ms K. Garner was given leave to appear on behalf of the Respondent.

The Submissions and Evidence

[2] The Applicant provided a witness statement and made submissions in support of her application. She did not call other witness evidence. She was first employed on 29 March 2010 and worked as a Cabin Crew employee. However, in a meeting on 15 August 2012 with her Supervisor, Ms Stephanie Snelling and Mr David D’Argenio, another Cabin Crew Supervisor, she was told her employment was to be terminated because of her failure to achieve satisfactory levels in three required examination assessments within a 12 month period. She was accordingly in breach of the Respondent’s operational standards, which the Civil Aviation Safety Authority (CASA) requires each airline operator to establish and adhere to.

[3] The Applicant also indicated she was particularly concerned about the nature of her relationship with Ms Snelling and believed she had been singled out and treated differently from other Cabin Crew employees. This situation stemmed, in particular, from an incident on 27 January 2012 when the Applicant was 25 minutes late for sign-on. She acknowledges she was late for duty on that day but was able to make contact with other crew members to inform them of the situation. Relevant safety and security checks were able to be made and she joined the crew without the aircraft being delayed.

[4] The Applicant said Ms Snelling contacted her on numerous occasions after this incident requesting more information about what had occurred. The Applicant was particularly upset by information subsequently contained in Crewing Reports indicating she had been a “no show” on that day. She believed her treatment was generally heavy-handed and not consistent with the way such matters were dealt with and resolved with other Cabin Crew employees.

[5] The Applicant said she then failed two Safety and Emergency Procedures (SEP) theory exams in March 2012. She was finally allowed to sit the exam again and passed on the third attempt. As a consequence of the two failures she was required to attend a meeting with Ms Snelling and Mr D’Argenio to review her performance. She indicated in those discussions she felt frustrated and bullied by the way she had been treated.

[6] On 29 June 2012 she injured her back at work in an incident during a flight involving severe turbulence and was off work for a period of three weeks. She received WorkCover payments during this time.

[7] The Applicant was also advised by Ms Snelling in June that she had been selected for Airbus A330 training. She was initially placed on a reserve list, but then selected to participate when other candidates were not available. The Applicant said being required to undergo further training on another aircraft put her under additional pressure and strain, however, she decided to participate in good faith. She then failed a theoretical exam that was a required part of the Airbus conversion training. She said a variety of factors contributed to this situation, including a loss of confidence in her ability to cope with theoretical assessments and the side effects of medication she was taking at the time. She was contacted again by Ms Snelling and asked to attend a further meeting where she was told a decision would be made the following day about whether she would be given an opportunity to sit the exam again. However, she was not given this opportunity despite having failed the exam by only one incorrect response. She said she felt she was being “bombarded” with training requirements, given she had been asked to undertake training in respect of three different types of aircraft within a relatively short space of time. She was again contacted by Ms Snelling two days later and asked, with only two hours notice, to attend a meeting later that day. After being offered the opportunity to explain why she had again failed another examination she was told it had been decided she was to be terminated.

[8] In cross-examination the Applicant acknowledged she was strong in regard to practical assessments but had an ongoing issue with theoretical examinations. However, she believed that the direction to “learn three aircraft” 1 had singled her out and was intended to set her up to fail2. This situation was exacerbated by her back injury and the fact she was on medication for depression. She also said she was a popular and well liked employee at work and could not understand the reasons for the difficulties she experienced in her relationship with her Supervisor, Ms Snelling.

[9] The Respondent’s submissions confirmed the Applicant was employed as a Cabin Crew member from 29 March 2010 until 17 August 2012. She was terminated because she failed to achieve and maintain a minimum level of proficiency and competency as a result of her failure to pass three proficiency exams within a 12 month period.

[10] The Respondent’s evidence indicated the Civil Aviation Safety Authority requires airline operators to have an approved Operations Manual in place. The Virgin Australia Manual includes a requirement for Cabin Crew to be rostered for two checks in each calendar year to test and assess proficiency. It states the minimum pass mark for theoretical exams is 80%. In circumstances where a theoretical examination or practical assessment is failed twice within a 12 month period it requires a performance review to be held to discuss that situation.

[11] The Respondent’s submissions provided the following chronology of events:

• 23 March 2012 – the Applicant sat a theoretical exam dealing with training in safety and emergency procedures. She failed the exam with a result of 75% and was provided with the opportunity to sit again.



• 29 March 2012 – the Applicant again failed the exam with a 78% result and was advised by her supervisor, Leader Cabin Crew Stephanie Snelling, that an employment review would take place.



• 10 April 2012 – the review meeting took place and it was subsequently decided the Applicant would be offered another opportunity to again sit the exam. She was reminded of her obligations to meet the required levels of competency and, if she did not, termination might result. She was also provided with extra coaching by the Training Department to assist in preparing for the additional examination.



• 18 April 2012 – the Applicant passed the exam.



• 25 June 2012 – the Applicant was selected for Airbus conversion training. She was asked whether she had any concerns about participating but indicated she did not. The training was scheduled for 8 August 2012 with an assessment examination on 13 August.



• 13 August 2012 – the Applicant failed the theory exam with a result of 78% and was advised by letter the following day that, as she had failed three exams in a 12 month period, there would be a further employment review. In a letter given to her she was encouraged to bring a support person to the review meeting which took place the following day.



• 15 August 2012 – the Applicant was provided with an opportunity at the meeting to explain why she had again failed an examination and whether she should continue to be employed. She did not take up the offer to bring a support person with her. Her responses failed to convince the Respondent that her employment should be continued. She was subsequently terminated on 17 August 2012, with four weeks pay in lieu of notice, together with her accrued entitlements. The reason for her termination was subsequently set out in a letter given to her dated 17 August.

[12] The Respondent submits it had a valid reason for dismissal. The Applicant had failed to achieve the minimum required level of proficiency and competency as a result of three proficiency exam failures. These requirements were set out in her contract of employment and the relevant EBA and the Applicant had not been able to meet the standard required. The Respondent rejected any suggestion other factors had influenced its decision. It also submits it followed the appropriate processes in carrying out the termination.

[13] The Respondent also dealt with issues raised in the Applicant’s submissions. It, firstly, denied the Applicant’s selection for Airbus A330 training had any “ulterior motive”. The Applicant was provided with an opportunity to indicate whether she had any concerns about participating in that training, but did not, and appeared keen to be involved. It also states at no time did the Applicant raise concerns about participating due to her back injury or any other medical condition.

[14] It also denies any “heavy-handed process” in regard to the “no show” notification issue, although it acknowledges this was a source of misunderstanding between the Applicant and Ms Snelling. However, it emphasises that the Applicant was not subject to any disciplinary action as a result. Her explanation for why she was late was accepted and the incident did not play any part in the decision, seven months later, to terminate her employment.

[15] Ms Stephanie Snelling has been employed by Virgin Australia Airlines since June 2003. Since 2007 she has been in the position of Leader Cabin Crew and supervises approximately 100 cabin crew in that role. It was her understanding that 1,515 cabin crew sat recurring theory and practical exams between January 2012 and October 2012, with only 8% failing on the first attempt. No data was kept for crew failing a second time as it was an uncommon occurrence.

[16] She met with the Applicant after she failed the two exams on 23 March and 28 March and explained, as a result, she would need to undergo an employment review. That meeting took place on 10 April 2012. The Applicant was told that the meeting was intended to provide an opportunity for her to explain why she should continue to be employed. She was also told it was possible her employment could be terminated. Ms Snelling said the Applicant did not provide any further explanation as to why she had failed the exams, other than what had been set out in a previous email. It indicated she had recently been unhappy at work, in particular, because of the recent exchanges about her:

“...once off lateness of duty.” 3

[17] She also said her:

“...mental state has obviously spilled over into my poor performance during recent exams.” 4

[18] Her mother’s brother had also passed away recently and she felt emotionally drained by all that was going on.

[19] Ms Snelling said she decided the Applicant should be terminated at that point but, after further discussions with her Manager and representatives from the “People Team” and the Training Department, it was decided she would be provided with an opportunity to sit the exam again. Ms Snelling also arranged for the Applicant to attend an extra training session with the Cabin Crew Training Manager on the day prior to the examination in order to review the material to be assessed and consolidate her knowledge. The Applicant subsequently sat the exam on 18 April and passed with the minimum acceptable 80% result.

[20] In June Ms Snelling recommended the Applicant for Airbus A330 training. She said she did so because of positive feedback received from other employees who enjoyed working on the new aircraft. She thought it might also be a good opportunity for the Applicant to experience a new and different working environment. She contacted her to see if she would agree to participate and said the Applicant responded positively to this opportunity. However, on 13 August the Applicant failed the conversion theory exam with a mark of 78% in a multiple-choice based examination covering safety and emergency procedures. Ms Snelling again contacted her Manager and a representative from the “People Team” to discuss the situation and a further meeting was arranged with the Applicant. The Applicant indicated in those discussions she found theoretical examinations difficult and had not done much study in preparation because she was tired and had been working hard during the training. She also indicated after the formal part of the meeting had concluded she was experiencing migraine headaches, which possibly related to her earlier back injury.

[21] After reviewing the discussions in the meeting on 15 August Ms Snelling formed the view the Applicant’s employment should be terminated. She did not believe the Applicant had put in place the necessary steps to respond to her inability to deal with the theoretical exams. She also believed the Applicant had been given every opportunity to indicate if she felt unable to participate in or complete the training, but had not done so. She also told the Applicant and later confirmed in writing that she was entitled to have a support person present at their meetings.

[22] Ms Snelling said at that final meeting on 15 August the Applicant indicated she believed she had been set up to fail and it was unfair that she was being asked to be trained on three different aircraft. Ms Snelling told the Applicant these matters should have been raised at an earlier time if they were of concern to her. The Applicant responded with words to the effect “that this is a joke” 5 and she, “would be taking the matter further.”6

[23] Ms Snelling also said she told the Applicant the “no show” issue had been a misunderstanding. She was comfortable with the explanation provided for her lateness on that day and the issue had no impact on her decision, seven months later, to recommend her termination.

[24] Mr Matthew Lane has been employed by Virgin Australia for approximately 22 months and is the Manager, Cabin Crew for the Melbourne and Perth airports. In that role he manages a team of 10 Supervisors, who are in turn responsible for approximately 1000 Cabin Crew. Ms Snelling is one of those Supervisors.

[25] He indicated a CASA approved operator’s Manual sets out the required standards for Cabin Crew at the airline. It is known as the Virgin Australia Operations Manual Cabin Crew Procedures Volume A4 (the Manual). During their initial training each Cabin Crew member is provided with a copy and when updates are released they are notified and required to update their copy. Cabin Crew are also subject to regular Manual compliance checks. They must maintain a level of proficiency in the performance of their duties which includes safety-related responsibilities. Proficiency must be capable of being demonstrated before crew members are able to perform operational duties. The Manual also prescribes that the minimum pass mark for theoretical examinations is 80%. If a crew member fails two theoretical exams or practical components within a 12 month period an employment review will be undertaken, which may result in termination of employment. This is dealt with in the Manual in clause 1.4.4, “Management of Failures”.

[26] He indicated he first became aware of the issues concerning the Applicant after being contacted by Ms Snelling following the second exam failure. He agreed at the time an employment review was the appropriate response, particularly because of the “no show” issue and the recent death of a family member and their likely impact. Given all the circumstances he subsequently recommended the Applicant be provided with a third opportunity to again sit the examination, which she subsequently passed.

[27] However, her third exam failure in August following the Airbus A330 training was the first time he had experienced an employee failing an exam on more than two occasions. The situation was again discussed with the “People Team” and the Training Department. He agreed with Ms Snelling’s recommendation that termination was the appropriate response, as it appeared the Applicant’s approach to her role, and the requirement to maintain appropriate proficiencies, was unlikely to change. The Applicant had failed three examinations within a period of six months and this meant she was again not meeting the standard of proficiency required of Cabin Crew.

[28] He also indicated that the incidence of Cabin Crew employees holding only a single aircraft endorsement now represented a minority within the overall Cabin Crew team he was responsible for. In the last few months the number of triple endorsed crew has grown to over 300 and was scheduled to continue to grow. He indicated, in conclusion, the decision to terminate the Applicant was made in consultation with her Supervisor and the airline’s “People Team,” who gave appropriate guidance and support. He was comfortable with the process that had been followed and the final decision taken.

Considerations

[29] Section 385 of the Act states a person has been unfairly dismissed if the Fair Work Commission 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.” 7

[30] In the present matter the Applicant submits her dismissal was harsh, unjust or unreasonable. In considering whether a dismissal was harsh, unjust or unreasonable the Act requires that the Commission must take into account the factors set out in s.387. It provides as follows:

“(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.” 8

[31] The obligations imposed by s.387 are clear and well understood. They were simply stated by a Full Bench of the Tribunal in the matter of L. Sayer v Melsteel Pty Ltd 9 in the following terms:

“Where the Applicant does present a case, in the ordinary course each of the criteria in s. 387 which capable of being relevant on the facts emerging at the hearing must be taken into account.” 10

[32] Section 381(2) also provides the manner of deciding a matter is intended to ensure “a fair go all around.” 11

[33] I now turn to consider the circumstances in the present matter in the light of the considerations contained in section 387 (a) to (h) that I must have regard to.

(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);

[34] There do not appear to have been any significant issues to do with the Applicant’s actual work performance on a day-to-day basis. The one occasion when she was late for a rostered shift was dealt with in detail. The Applicant was clearly concerned about how this matter was subsequently dealt with by her Supervisor and it clearly became a source of friction in their relationship from that point. However, the evidence of Ms Snelling is that she was satisfied with the explanation given about why the Applicant was late on that day and the incident played no part in her subsequent decision to recommend her termination, seven months later. Ms Snelling also acknowledged a mistake was made when the incident was described as a “no show”.

[35] However, the Respondent submits it had a valid reason for termination. The Applicant failed three assessments or examinations within a period of six months, without being able to provide a reasonable explanation as to why this occurred. It referred to clause 2.7, Performance Management in the Enterprise Bargaining Agreement (EBA) which covered the Applicant’s employment and outlines what can happen when performance does not meet required standards. It also pointed to her contract of employment and, in particular, the paragraphs under the heading “Your duties and responsibilities,” which state:

“You will be required to perform the duties and meet the standards of performance and conduct of a Cabin Crew member that are contained in any documentation relevant to your role, including any position description, and/or communicated to you from time to time during your employment. A demonstrated failure to perform such duties or meet these standards may lead to the termination of your employment.” 12

[36] It also made reference to the wording contained under the heading “Policies, Procedures etc” in the following terms:

“You must comply with all Virgin Blue policies, procedures and manuals (including operations manuals) that apply to you which exist, are introduced during your employment, or amended from time to time.” 13

[37] The document also contains the following wording under the heading “CASA Regulations”:

“Virgin Blue is subject to Civil Aviation Safety Authority (CASA) Regulations. You will be advised during your induction whether any CASA Regulations apply to your employment. Those employees who are subject to CASA Regulations are required to conduct themselves in strict compliance with the regulations. Any failure on an employee’s part to comply with the regulations shall result in disciplinary action, which may include termination of employment.” 14

[38] Finally, under the heading, “Reviewing Performance” the contract states:

“Your performance will be continually assessed and you will be required to participate in performance assessments as and when required.

Your ongoing employment is subject to you performing your duties and otherwise complying with your employment obligations to a level satisfactory to Virgin Blue.

If your performance is not to an acceptable standard we will review your employment as a member of our Cabin Crew. Where we have concerns with your performance or conduct and we believe it is appropriate we may take disciplinary action against you up to and including the termination of your employment with Virgin Blue.” 15

[39] Mr Lane’s evidence also detailed the requirements contained in the CASA required Virgin Australia Operations Manual which deals, in particular, in Clause 1.4 “Training Assessment” with the ongoing requirements of both theoretical examinations and practical assessments, and what occurs when an employee fails to meet the required standards.

[40] In all the circumstances I am satisfied the employer had a valid reason for the Applicant’s termination. She failed two theoretical examinations, but, after due consideration, was allowed a third attempt at which she was successful. Her Supervisor subsequently recommended her for training on another aircraft. Given this required more training and further theoretical and practical exams and assessment, an issue can be raised about why the Applicant was selected to participate. However, Ms Snelling indicated in her evidence that other employees had welcomed the opportunity to be trained and involved with the new Airbus A330 aircraft and she believed the Applicant would have a similar reaction. In addition, the Applicant did not object to participating in this additional training. However, she again failed another theoretical exam assessment as part of that training, making three failures within a six month period.

[41] The Applicant was subsequently offered the opportunity to provide an explanation as to why this had occurred, but apart from a passing reference to migraine headaches and the stresses involved in the training, did not make reference to anything further. She also believed she had been singled out and set up to fail by her Supervisor, Ms Snelling. However, the evidence indicated Ms Snelling had made arrangements after the Applicant’s second exam failure for her to have an extra training session with the Cabin Crew Training Manager before her third attempt in order to review the material that was to be assessed and to consolidate her knowledge. A variety of people were also consulted at various stages of the process before any final decision was taken. These included the Applicant’s Supervisor, her Supervisor’s Manager, and representatives from the so-called “People Team” and the Training Department. The opportunity to sit the examination for the third time was also an unusual concession. The evidence of Mr Bates indicated it was, in fact, the first occasion he was aware of that this had occurred.

[42] The Applicant was also given the opportunity to elect not to take part in the Airbus training when this opportunity was offered, but raised no objection to being involved. Ms Snelling’s evidence was she reacted positively to this opportunity. In all the circumstances I am not satisfied the evidence points to a concerted campaign to target the Applicant or single her out for special treatment. The Respondent is entitled to require theoretical examinations and practical assessments to be carried out and completed on a regular basis. The Civil Aviation Safety Authority requires each airline operator to establish and maintain such standards. The Applicant’s contract of employment and the Policies and Procedures Manual provided to her also detail and make known these requirements. Those theoretical examinations dealt, in particular, with required safety and emergency procedures. In all the circumstances I am satisfied the Applicant’s failure to pass these examinations on three occasions within a six month period constituted a valid reason for her termination.

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

[43] The Applicant was notified of the reasons for the decision to terminate her employment at the meeting on 15 August 2012. These were confirmed in writing in the letter dated 17 August 2012 provided to her.

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

[44] The Applicant was given an invitation and opportunity to respond to her failure to pass the relevant examinations in the discussions on 15 August 2012. She had also been provided with similar opportunities in previous meetings following the two earlier examination failures.

(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;

[45] The Applicant was invited on numerous occasions at various meetings to have a support person present with her. This included the final meeting on 15 August 2012 when the decision was made to terminate her services. The evidence indicates she chose not to take up this opportunity.

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

[46] The Applicant had been warned on previous occasions about the consequences of failing the theoretical examinations that were required to be completed as part of the mandated proficiency standards. These warnings had also made reference to the possibility her employment could be terminated.

(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;

[47] This is not a relevant consideration in the present matter and not relied upon by either party. The Respondent is a large organisation with detailed policies in place regarding work performance and conduct issues.

(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;

[48] Again, this is not a relevant consideration in this matter and was not relied upon by either party. The Respondent has a specialist “People Team” in place with responsibility for Human Resource matters.

(h) any other matters that FWC considers relevant.

[49] I am not aware of any other matters that need to be taken into account in determining this matter.

[50] After considering all of the submissions and evidence in this matter, and after having regard to each of the considerations I am required by the Act to take account of, I am not satisfied the Applicant’s termination in all the circumstances was harsh, unjust or unreasonable. The application is accordingly dismissed.

COMMISSIONER

Appearances:

The Applicant appeared on her own behalf.

Ms K. Garner appeared on behalf of the Respondent.

Hearing details:

2013.

Melbourne:

18 January.

Final written submissions:

The Respondent submitted final written submissions at the hearing on 18 January 2013.

 1   Transcript PN897.

 2   Ibid.

 3   Exhibit G4; Attachment SS5.

 4   Ibid.

 5   Exhibit G4 at para 94.

 6   Ibid.

 7   Fair Work Act 2009 (Cth) at s.385.

 8   Ibid at s.387.

 9   [2011] FWAFB 7498.

 10   Ibid at para 20.

 11   Fair Work Act 2009 (Cth) at s.381(2).

 12   Exhibit G6; Attachment MDL 2 at page 2.

 13   Ibid at page 3.

 14   Ibid at page 4.

 15   Ibid at page 3.

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