Mr David Taleski v Virgin Australia International Airlines Pty Ltd T/A Virgin Australia
[2013] FWC 93
•11 JANUARY 2013
Note: An appeal pursuant to s.604 (C2013/2810) was lodged against this decision - refer to Full Bench decision dated 24 July 2013 [[2013] FWCFB 4191] for result of appeal.
[2013] FWC 93 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Taleski
v
Virgin Australia International Airlines Pty Ltd T/A Virgin Australia
(U2011/12885)
COMMISSIONER CRIBB | MELBOURNE, 11 JANUARY 2013 |
Application for unfair dismissal remedy.
[1] Mr David Taleski (the applicant) has made an application under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. It is alleged that his dismissal by Virgin Australia International Pty Ltd t/a Virgin Australia (the respondent or the company or Virgin Australia) was harsh, unjust or unreasonable.
[2] A conciliation conference was held on 14 November 2011 but the matter was not settled.
[3] The application was arbitrated on 8 and 9 March 2012 and 17 and 18 May 2012. Written closing submissions were received from the applicant on 29 June 2012 and submissions in reply on 5 September 2012. Written closing submissions were filed by the respondent on 9 August 2012.
[4] Mr Taleski gave evidence as did Ms C Bischoff, Mr D Henning and Ms L Bates,
[5] Mr Taleski was represented by Mr M Addison, solicitor, and the respondent by Ms S Moody of Counsel.
[6] I need to clearly indicate that, although the evidence and submissions have not been fully summarised in the decision, all of the material before me has been carefully considered and taken account of.
THE EVIDENCE
MR TALESKI
Email to Ms Bischoff dated 7 July 2010
[7] Mr Taleski confirmed that he first advised Ms Bischoff that he was growing his hair longer than collar length in his email of 7 July 2010. He agreed that the reason he gave was that he wished to observe a practice of his religion to grow one’s beard to mourn a death. 1
[8] During cross examination, Mr Taleski conceded that the religious practice was for men to grow their beards and hair but that he decided instead to grow his hair, which was not strictly in accordance with the requirements of his religion. He did not know why he had only referred to growing one’s beard (and not also hair) in his email. It was indicated that it was his interpretation of the religious practice to grow his hair instead of a beard and to grow it 10 years after the death instead of directly after. It was Mr Taleski’s evidence that the decision to grow his hair was a cultural and private decision rather than a requirement of his religion. 2
[9] Mr Taleski initially accepted that he was mistaken when he advised Virgin Australia that the reason he was growing his hair long was based on his religion. He explained that he had since come to realise that the decision to grow his hair was more a cultural reflection of his religion.
[10] Mr Taleski refuted the proposition that he was being deliberately misleading when he said that growing his hair long was a requirement of his religion. He stated that he had believed at the time that it was a requirement of his religion to grow his hair long 10 years after a death. 3
[11] It was confirmed by Mr Taleski that he had been informed by Ms Bischoff that he could, during the temporary mourning period, wear his hair longer provided it was styled neatly and appropriately. He agreed that Ms Daley had told him that, if he had to grow his hair for religious reasons, then the only option was to tie it back in a bun. Otherwise, he needed to comply with the regulations to have short hair. 4 Mr Taleski’s evidence was that there was more than just the religious aspect to growing his hair longer. Therefore, he did not accept that the exemption from the short hair requirement was temporary but stated that he would then have to divulge his medical condition. He indicated that Virgin Australia had no knowledge of any medical condition that he had. He did agree that, if there was no medical or religious reason, he would have had to comply with the short hair requirement.5
December 2010 discussions
[12] It was recalled that the first time the length of his hair was raised by Virgin Australia was in December 2010 at the end of a meeting between himself, Ms Bischoff and Mr Parsons. 6 He stated that Mr Parsons told him that he would have to cut his hair, not immediately, but sometime in the future. He said that putting a reasonable limit on the mourning period and the requirement to have long hair was not spoken about. 7 Mr Taleski recounted that, regarding having his hair long, he had told Mr Parsons and Ms Bischoff that he had a medical condition but was not comfortable disclosing it. He recalled saying that he would have to obtain medical certificates.8 Mr Taleski indicated that, at that point in time, he had an idea that he may have been suffering from BDD.9
Meeting with Ms Bischoff on 12 January 2011
[13] Mr Taleski accepted that, at this meeting, Ms Bischoff instructed him to cut his hair. He stated that he had mentioned medical grounds during this meeting. 10
Medical certificate dated 18 January 2011
[14] In terms of the medical certificate 11 dated 18 January 2011, Mr Taleski recounted that he had asked his Doctor for a medical certificate advising the company of what he was going through and when he would meet the grooming requirements.12
Email to Uniform Department
[15] It was confirmed by Mr Taleski that, prior to meeting with Ms Bischoff on 24 January 2011, he had emailed the Uniform Department seeking more information about the grooming regulations. He gave evidence about the reason for having done this. 13
Meeting with Ms Bischoff on 24 January 2011
[16] It was Mr Taleski’s evidence that, when he gave his medical certificate to Ms Bischoff on 24 January 2011, she had told him that the medical certificate did not contain enough information about his condition and why it prevented him from cutting his hair. 14 Mr Taleski agreed that the medical certificate of 18 January 2011 did not offer any medical reason as to why his hair needed to be long.15
[17] He confirmed that Ms Bischoff had asked him what the medical reason was and that he had refused to provide the real reason. 16 He recalled that his response was that he felt uncomfortable disclosing the full reasons at that stage. It was explained that, as his condition was a mental illness, he felt that he would lose his job.17 Mr Taleski stated that Ms Bischoff had not told him what additional information she required beyond telling him that there was not sufficient information about what was preventing him becoming compliant.18 He denied that Ms Bischoff had asked him to get a letter from his Doctor stating the actual nature of the medical condition that prevented his compliance; whether the medical reason was voluntary or involuntary; whether he was seeking treatment for the condition and how long that condition was going to last and/or when he could become compliant with the Look Book.19 Mr Taleski agreed that he knew he had to go back to his Doctor to get more information but he did not know what the additional information was.20 He said that, due to the nature of his illness, he did not feel comfortable discussing it with anyone, let alone Ms Bischoff, and he would have just left the meeting with whatever information he had.21
[18] It was recalled that Ms Bischoff had also raised the subject of his email to the Uniform Department and had told him that he was not to email the uniform Department but that he was required to raise the issue with her as his Direct Manager. Further, Ms Bischoff had told him about the Grievance Resolution Policy and confirmed that he was required to comply with it. 22
[19] Mr Taleski did not know whether or not he had emailed the Uniform Department again after the meeting with Ms Bischoff. He indicated that it was a possibility that there had been a follow-up conversation with Ms Bischoff regarding his compliance with the grievance resolution procedure. 23
[20] It was denied by Mr Taleski that, when he was not happy with a decision Ms Bischoff had made, he would contact Managers and General Managers without her knowledge to try and have her decision overturned. He also denied that he was told by Ms Bischoff that his conduct in doing this was incorrect and that he needed to comply with the Grievance Resolution Policy. Mr Taleski stated that he knew that, if he had a grievance, the way to resolve it was to comply with the Grievance Resolution Policy. 24
February / March 2011
[21] Mr Taleski agreed that during this period, there were some informal meetings/chitchats with Ms Bischoff about the length of his hair. He denied that Ms Bischoff had asked him when he was going to cut his hair or told him that he needed to tell her when he was going to become compliant with the policy. It was stated that he had possibly asked Ms Bischoff, amongst others, if he could get an exemption from the policy. He confirmed that Ms Bischoff had asked him to clarify the reasons why he could not cut his hair and had asked for more information including about his medical condition - what he was going through and how he would be able to have his hair. Mr Taleski denied that he knew that the only reason Ms Bischoff was meeting with him was to find out when he was going to become compliant. He said that they were the casual catch ups that one has whenever one is in the briefing room. 25
[22] It was recalled by Mr Taleski that, when Ms Bischoff asked him for further information about his medical condition and his religion, he became upset because he felt he was being told that he could not mourn and that he should not be grieving for so along. He said that his response was that he was not comfortable divulging that information but that he would speak to his Doctor further. 26
[23] Mr Taleski stated that he did not immediately go to his Doctor to get more information as he wanted to think about exactly what information he was going to divulge. He explained that it was not something that you could just blurt out and feel comfortable talking about so he probably would have put it off. He believed that he had also said that he would speak to Mr Parsons first about what information he wanted (before speaking to his Doctor) because he had talked to him and he knew that Ms Bischoff had told Mr Parsons to expect him. 27
Meeting with Mr Parsons - April 2011
[24] It was denied by Mr Taleski that he had no idea that he would run into Mr Parsons in LAX in April 2011. Mr Taleski’s evidence was that he had attended one of Mr Parsons’ seminars at LAX and arranged to meet him afterwards. 28 He confirmed that he sent an email to Ms Bischoff on 2 April 201129 indicating that Mr Parsons had requested to speak to his Doctor and that the Doctor could provide a report responding to the company’s questions. The questions could either be forwarded via him to the Doctor or the company could fax them to the Doctor.30 He stated that neither Mr Parsons nor Ms Bischoff gave him a list of questions for his Doctor.31
Subsequent discussion with Ms Bischoff
[25] Mr Taleski recalled that, following his discussion with Mr Parsons, Ms Bischoff had told him that he had to be the person to give Virgin Australia the further information. He therefore needed to be proactive and to go to his Doctor and ask him to provide something in writing which gave the company the further information it needed. He denied that Ms Bischoff told him that she required the Doctor to clearly state the diagnosis, whether the medical condition prevented him from being compliant with the policy, how long the condition would last and when he would be able to comply with the policy. It was accepted by Mr Taleski that Ms Bischoff told him that he had to get further information but he had no recollection about what that further information was. 32
Meeting with Ms Bischoff on 7 April 2011
[26] It was stated by Mr Taleski that he was advised by Ms Bischoff, on 7 April 2011, that he had been taken off flying duties (SOC) until he complied with the grooming regulations by cutting his hair or gave her more information as to why he could not comply. He recalled that he was told by Ms Bischoff that Mr Tanner had seen him at the airport and requested he be taken off the roster and made SOC because of his hair length. 33
[27] Mr Taleski said that he had then disclosed to Ms Bischoff that he had BDD but had not gone into it. He stated that it was not a change in the reason why he had to have long hair but was, rather, additional information. It was agreed that, at that point in time, it was not an official diagnosis but was something that he thought/knew he had. He indicated that he did not tell Ms Bischoff that this was a self-diagnosis. Mr Taleski said that he was not being untruthful as he had seen his Doctors a number of times for body image issues. He stated that there had not been a requirement for a diagnosis of BDD. 34
[28] It was confirmed by Mr Taleski that, during the meeting, he raised the issue of Employee X and indicated that he thought that he was being treated differently from this employee. He agreed that he had told Ms Bischoff that he wanted to take it further. 35
Medical certificate dated 8 April 2011
[29] Mr Taleski indicated that he had asked Dr Bosnich to provide a medical certificate but not to include a diagnosis as, at that stage, he (Mr Taleski) was not comfortable disclosing it. He indicated that he had not asked Dr Bosnich not to include detail about when the medical condition may resolve. It was stated that Dr Bosnich was treating him for the physical aspects of his mental condition and that the medical condition referred to in the certificate related to the hair transplant. 36
[30] It was recalled that, when he gave the medical certificate to Ms Bischoff, she had told him that it was insufficient as it did not contain the information that she had asked him to get from his Doctor including the nature of the medical condition. 37 He denied that Ms Bischoff told him that the medical certificate was also insufficient because it did not explain why the medical condition meant that he could not comply with the policy.38 With respect to why he had provided Ms Bischoff with a certificate from a hair transplant Doctor, Mr Taleski stated that it was to show that he was getting some kind of treatment.
Medical certificate dated 12 April 2011
[31] On 12 April 2011, Mr Taleski recalled that he had visited Dr Presswell who had issued a medical certificate stating that he was receiving management for a body image disorder relating to the length of his hair. 39 It was Mr Taleski’s evidence that he had spoken to his Doctors for years about body image issues and another psychologist a few years back. He said that this was the first time he had requested that a Doctor put it down on paper. He indicated that he had not been diagnosed with BDD prior to 12 April 2011.40
[32] Mr Taleski denied that Ms Bischoff had told him that the medical certificate was inadequate because it did not tell her why his condition meant that he could not cut his hair or when the condition would resolve so that he could become compliant. He indicated that there may have been a conversation between himself and Ms Bischoff but could not recollect as to exactly what was said. He did not recall that Ms Bischoff told him that he needed to get more information. 41
[33] Mr Taleski confirmed that he had gone to the hairdresser and attempted different hairstyles trying to reach a compromise. He stated that he had advised the company of this. 42
Emails between Mr Taleski and Ms Bischoff - 18 April 2011
[34] It was confirmed by Mr Taleski that he emailed Ms Bischoff on 18 April 2011 regarding a hairstyle which meant that he could comply with the policy. It involved slicking his hair and tying it back. He agreed that, by that stage, he knew that the ponytail style was not acceptable to Virgin Australia. 43
[35] Mr Taleski confirmed that, in her response at 14:24 on 18 April 2011, Ms Bischoff had stated the purpose of the meeting with herself and Mr Parsons on Thursday 21 April 2011 included an assessment as to whether he could fully meet the male grooming regulations. 44 He agreed that Ms Bischoff had also set out that he would need to have medical documentation which stated what stopped him from meeting the grooming regulations and what plans he had in place to meet them.45
[36] It was acknowledged by Mr Taleski that he did not provide the requested medical information at the meeting with Ms Bischoff and Mr Parsons. 46 It was his evidence that the reason for this was that he had difficulty speaking about the situation rather than him feeling that it was an invasion of his privacy. He indicated that he believed that he had provided as much information as he could have at that time. Mr Taleski stated that, throughout 2011, he did not know that Ms Bischoff considered the information he had provided as insufficient.47
Medical certificate dated 19 April 2011
[37] It was agreed by Mr Taleski that he obtained a medical certificate from Dr Presswell on 19 April 2011 which indicated that he had received a mental health plan and had been referred to Mr McGartland, a psychologist, for counselling. 48 He stated that he gave the medical certificate to Ms Bischoff but did not provide a copy of the mental health plan to the company. It was Mr Taleski’s evidence that he could not recall a conversation with Ms Bates regarding the certificate.49 He believed that the certificate he gave Ms Bischoff satisfied everything that she had asked for given that she had not been specific with respect to the requirements.50
Email to Mr Tanner
[38] Mr Taleski confirmed that he had emailed Mr Tanner to complain about being made Subject to Operational Clearance (SOC). He indicated that he had not raised a grievance about this issue under the grievance resolution procedure. It was stated that he did not accept that he had breached the policy by emailing Mr Tanner directly because he was trying to speak to him about it before it got to the next stage. He said that he had been trained that there was an open relationship within the company and so he did not think that what he was doing was inappropriate. Further, Mr Tanner replied a number of times but did not tell him that it was inappropriate. Mr Taleski explained that he did not want to make it formal so he thought that he would chat to Mr Tanner and, if that was inappropriate, he was not told. 51 He recalled that he had told Mr Tanner that he had BDD and Mr Tanner had then emailed asking what his medical issue was. It was also said that, during the email traffic between Mr Tanner and himself, Mr Tanner had referred to ‘his stated medical condition’.52
Meeting in late April / early May 2011
[39] It was agreed by Mr Taleski that he requested a meeting to show Ms Bischoff a hairstyle that he thought was appropriate. He recalled that initially Ms Bischoff thought that he had cut his hair and said that it looked great. Mr Ross was said to have noticed that it was bobby pinned and tucked up. Mr Taleski said that his hair was a little cut and styled in such a way that it appeared shorter, following a trip to the hairdresser to try and get a compromise. 53 It was Mr Taleski’s evidence that, prior to July 2010, he had a short haircut which complied with the Look Book but that he had difficulty having haircuts. He agreed that for approximately 7 and a half years he had complied with his then employer’s policies by having short hair. It was stated that, at the 10 year anniversary of his mother’s death, he did feel something which affected him negatively. He thought that growing his hair would help him be more comfortable with the way he looked.54
[40] Mr Taleski confirmed that, at the end of the meeting, Ms Bischoff told him that it was not a suitable look and that he was going to remain on SOC. He recalled that there was a conversation about the hairstyle being insufficient which meant that they were looking at different hairstyles. He said that the company had the medical certificates from Dr Presswell and Mr McGartland and that they talked about different ways that he could have his hairstyle so that he could fly. 55
Medical certificate from Mr McGartland dated 29 April 2011
[41] With respect to the medical certificate from Mr McGartland, dated 29 April 2011, Mr Taleski confirmed that it indicated that a treatment plan would be developed. 56 He stated that he had given the certificate to Ms Bischoff and that she had asked about the frequency of his appointments with the psychologist. It was recalled that he had responded that there would be gaps between sessions as Mr McGartland was quite busy.57 He did not believe that Ms Bischoff had raised with him her concern that this certificate did not state that there was a specific medical condition which precluded him from cutting his hair. This was said to be because he had already told her earlier.58
[42] Mr Taleski denied that Ms Bischoff told him that the certificate still did not explain why the condition prevented him from getting his hair cut. It was his view that it could be implied from Mr McGartland’s certificate that he had a condition which prevented him from cutting his hair. 59 Mr Taleski indicated that his anxiety about having a haircut was not with respect to all kinds of haircuts, given that he had had a centimetre cut off for the meeting in late April/early May 2011.60 He did not believe that the company had asked any questions about the medical certificate.61
Meeting on 2 May 2011 with Ms Bischoff and Mr Parsons
[43] It was Mr Taleski’s evidence that, at this meeting, it was he who had suggested that he would wear a wig. He recalled that Mr Parsons had told him that, as long as it meets the grooming regulations, go for it. 62 Mr Taleski denied that Mr Parsons and Ms Bischoff had made it clear that it would only be a temporary measure while he was working towards achieving full compliance. He also denied suggesting that it could be a potential interim measure to get him back flying.63
[44] Mr Taleski confirmed that he had complained about being made SOC as he believed it was unfair. He raised the issue of Employee X and said that he was only promoted into a non uniform role after he (Mr Taleski) had made the company aware of the situation, whilst discriminating against him (Mr Taleski). The discrimination was said to have arisen when the company failed to realise that other people had medical issues and they gave an exemption to Employee X on medical grounds but not to him (Mr Taleski). 64
[45] It was agreed by Mr Taleski that there was some discussion at this meeting about him performing alternative roles whilst he was SOC. It was discussed that Ms Bischoff would look for alternative roles which did not require him to wear a uniform and therefore be subject to the Look Book. It was recounted that Ms Bischoff had arranged for him to work in the Melbourne sales office, in the city. There was email traffic between himself and Ms Bischoff regarding this role with Mr Taleski asking for more information about where the sales office was, parking etc. 65 He explained that, as a result of being made SOC, he needed to manage his funds and so needed to know the cost of parking etc. He stated that it was not true that he was not receptive to redeployment or that he had refused to work in the sales office.66
[46] Mr Taleski confirmed that, on leaving the meeting, he understood that he could also be proactive in exploring alternate roles. He denied that he had not been proactive and explained that he was looking to be an auditor. Further, he got in touch with another LCC who said that she would be able to give him some office work in the Melbourne office. He recalled that he did not do that work because he was trying to get different hairstyles and going up and back to Sydney to show the different hairstyles. By the time this had ended, it was time for the HREOC conciliation. 67
Meeting with Mr Daley - early May 2011
[47] Mr Taleski recounted that he had emailed Mr Daley requesting a meeting. He said that he told Mr Daley that he had a psychological issue that had to do with getting his haircut and that he had spoken to Ms Bischoff about different hairstyles. It was recalled that Mr Daley had told him that his current hairstyle was not acceptable and that he would have to cut it. 68 Mr Taleski was said to have responded that he had again brought up wearing the wig. Mr Daley’s response was that if it matches the Look Book then he could wear it. He disagreed with the proposition that Mr Daley had told him that he was either required to cut his hair and so become compliant or to give the company more information about his medical condition.69
[48] It was stated that he had also spoken to Mr Daley about Employee X (whom he named) and the male employees who were wearing makeup (whom he did not name) and that he raised the Keeping Our Workplace Fair policy (KOWF). Mr Daley’s response was said to be that, if he had any further grievances about that, he should see Ms Bischoff and Ms Bates. 70
KOWF Complaint - 11 May 2011
[49] Mr Taleski confirmed that he had made a complaint under the KOWF policy that he was being treated differently compared with a couple of other crew members who were not meeting the grooming regulations but were still allowed to fly whilst he had been taken off the roster. 71
[50] It was Mr Taleski’s evidence that his complaint was incorrect where it stated that he had been citing medical grounds as the basis for wearing his hair long since July 2010. Rather, it was from 24 January 2011. Further, he believed that Ms Bischoff and Mr Parsons considered that he had fully complied with their directions regarding the provision of further medical information. 72
[51] With respect to the specifics of his written complaint, Mr Taleski agreed that it contained an accusation that Mr Tanner had used his position to influence his (Mr Taleski’s) situation. He confirmed that he had referred to a number of employees who were not compliant including gentlemen who wore makeup on board, Employee X and a person who changed into more comfortable loafers on board. 73 Further, he agreed that he had repeated the advice given by Mr Parsons that every employee is treated the same but that individual circumstances are considered.74
[52] In terms of disclosing to Virgin Australia more information about his medical condition, it was Mr Taleski’s evidence that he had disclosed what he thought was necessary. If he did not think it was necessary for Virgin Australia to know something, he did not either obtain the information or disclose it. This information was what his actual condition was. 75 He stated that he had not disclosed how or why his condition meant that he could not cut his hair because he was not going to go into it with his employer. It was his view that it was his Doctors who had disclosed the nature of his medical condition. He disagreed that none of the medical certificates he had provided explained as to why his medical condition prevented him cutting his hair.76
[53] Photographs of two male crew members wearing makeup and Employee X were identified. 77 When questioned about the photographs during cross-examination, Mr Taleski indicated that he was not present when the photographs were taken and was unable to say who took the photographs.78 He said that, in the photograph with the two gentlemen, the gentlemen on the right wore makeup as he had flown with him a number of times. It was his view that the photograph definitely showed that the gentlemen was wearing makeup (foundation covering his pimples).79 In terms of the photograph of the Asian gentleman, Mr Taleski said that there was a high probability that it was taken during a flight.80 With respect to the photograph of Employee X, he stated that he had no knowledge of the arrangements in place between the company and this employee.81
[54] Mr Taleski indicated that he had raised the issue of these employees with his employer. He had not specified their names until right at the end despite being asked on several occasions to do so. This was because he did not believe that it was his job to do that and he did not want to get other people into trouble. 82
[55] The appropriateness of Mr Daley investigating his complaint was raised by Mr Taleski as he did not feel that Mr Daley would be fair or balanced. This was because he had already expressed his view to Mr Taleski at the meeting in early May 2011. 83
[56] It was stated by Mr Taleski that he was dissatisfied with the outcome of Mr Daley’s investigation. This was because Mr Daley was directly involved with his enquiry. It was recalled that Mr Daley outlined some findings when he met with him which were to cut his hair and to refer the matter to Human Resources (HR). 84
Meeting on 2 June 2011
[57] With respect to the meeting held on 2 June 2011, with Ms Bischoff and Mr Henning, he agreed that they had indicated that the purpose of the meeting was to provide an outcome about the issue regarding his non-compliance which the grooming regulations. 85 It was explained by Mr Taleski that, during this meeting, his discrimination complaint was discussed and he recalled saying that he was being discriminated against as a male (not allowed to wear a ponytail) because, if he was a female (who was allowed to wear a ponytail), he would not have been in this situation. He recalled that Mr Henning and Ms Bischoff had conceded that, if he was a woman, then he would not be in that situation but had said that, as he was not a woman, he was required to comply with the male grooming regulations.86
[58] Mr Taleski said that he had told Mr Henning that there were gentlemen in the business world with longer hair which were business style appropriate haircuts. Mr Henning was said to have referred him back to the Look Book and he had pointed out the business appropriate style haircuts in the book and said that this is what we mean by “business appropriate style haircuts”. 87 He recounted that he had mentioned Mr Henning’s comments to Mr Daley who had said that he would have that changed.88
[59] It was confirmed by Mr Taleski that he had presented at the meeting with his hair in a ponytail with dark bobby pins at the side and that Mr Henning told him that he did not comply with the regulations and was unacceptable. Mr Taleski recalled his response to be that he considered he had a business style haircut and that he had googled men’s hairstyles. Ms Bischoff and Mr Henning were said to have responded that he had to have a short haircut that looked like the pictures in the Look Book. 89
[60] Mr Taleski had disagreed that he had to have a haircut as per the Look Book and stated that he would not get his hair cut. He accepted that they had then told him that he had been given a great deal of support and time to become compliant. It was confirmed that Ms Bischoff had said that permission to wear his hair in a ponytail or a bun was for a temporary period whilst mourning as a requirement of his religion. Further, he was said to have changed his reasons for growing his hair and that much later he had said that it was for a medical condition. Mr Taleski had replied that he felt more spiritual when his hair was longer. He agreed that he had referred to Employee X and that Mr Henning had said that Virgin Australia considered every person’s circumstances individually and made decisions on a case-by-case basis. 90
[61] With respect to wearing a wig, Mr Taleski recalled indicating that he was not keen on the idea because it could cause hair loss or dry scalp. He agreed that he said that he had concerns that the crew would know that he was wearing a wig and that people would talk about him online. 91 He confirmed that he asked Virgin Australia if they would pay for a wig and that the response was no. It was agreed that he was then asked if his position would change and he had indicated no.92
[62] Following a break, it was recalled that Mr Henning had told him that the decision had been made to terminate his employment with 4 weeks’ notice. 93 Mr Taleski denied that Mr Henning had told him that the notice of termination would be rescinded if he complied with the Look Book.94 Further, Mr Taleski denied that he was advised that they would assist him in finding redeployment options in a non-uniform role during the four-week notice period.95
Email to Mr Borghetti dated 2 June 2011
[63] Mr Taleski recalled that he was so distressed about what had happened that he decided to email Mr Borghetti, the Chief Executive Officer (CEO) of Virgin Australia. 96
[64] Mr Tanner had replied on behalf of Mr Borghetti and Mr Taleski agreed that Mr Tanner’s letter had, in effect, rescinded the termination of his employment. 97 It was accepted that the letter told him that it was an inherent requirement of his role, as a cabin crew member, to meet the grooming requirements. Further, Mr Taleski agreed that the letter said that that requirement was not going to change but that the company wanted to understand if he could become compliant and if so, when. A timeframe needed to be set for that understanding to occur. It was accepted by Mr Taleski that he knew from the letter that, while his dismissal was being rescinded, it was so that certain matters could be resolved within an appropriate time. He agreed that what Mr Tanner was saying was that the company needed to know if he could comply with the grooming requirements and that, if he could but he needed time, the company would work with him. Further, it was acknowledged that the letter said that, if he could not comply, he was going to have to be moved to an alternate role. Mr Taleski also agreed that the letter said that if the process was not followed right, then dismissal could well be revisited.98
[65] Mr Taleski agreed that Mr Tanner’s letter again invited him to name the employees that he believed were being treated differently to him. It was indicated that he did not name those employees, at that stage. 99 It was acknowledged by Mr Taleski that Mr Tanner was saying that, if he provided the names, the company would investigate because they wanted to be consistent.100
[66] It was confirmed by Mr Taleski that he had always advised the company that he was suffering from a medical condition. The condition was Body Dysmorphia Disorder (BDD) and it was Mr Taleski’s understanding that Mr Tanner was aware of his condition through previous communications with him. 101
Meeting on 8 June 2011
[67] Mr Taleski confirmed that, following the decision to rescind his dismissal, there was a meeting between himself, Mr Henning and initially Ms Daley and that Ms Daley was replaced by Ms Bates. He agreed that one of three issues discussed was whether he would be able to comply with all of the grooming requirements. It was indicated that Ms Bischoff had probably asked him whether there was a timeframe for his compliance. He stated that he was unable to answer that question and had said that he thought it was harsh. This was because it takes time to get these sorts of issues looked into and sorted out with his psychologist. 102
[68] It was acknowledged that he did not explain that but had asked as to whether Employee X was still flying as he believed it to be inconsistent that that gentleman could fly whilst he could not. Mr Taleski confirmed that Miss Bischoff had told him that that issue was confidential and she could not discuss it. He had then said that he could not see why he could not wear his hair in a ponytail. Ms Bischoff had responded that that matter was being dealt with as part of his KOWF complaint and that he could seek a review of the decision. Mr Taleski had replied to the effect that he felt that his freedom to express his religious beliefs was being repressed. 103
[69] With respect to him wearing a wig, it was agreed by Mr Taleski that he had said that this was one possible means of compliance that he could look at. However, he was not keen on wearing a wig because he was concerned that it would be obvious that he was wearing one, particularly to passengers, and did not know how much further stress this would cause him. Also, he was worried about its effect on his hair transplant and his scalp. It was confirmed that Ms Bischoff had suggested that he could consult the dermatologist which he had agreed to. However, this had not occurred within the next two weeks as he had difficulty arranging an appointment. 104
[70] Mr Taleski agreed that Mr Henning had stated that the company were not the ones who were suggesting he wear a wig, that he (Mr Taleski) was and that it was a matter for him as to whether or not he wore one. Mr Henning was recalled to have also said that he would check into the company’s occupational health and safety policies to make sure that there was not an issue from that perspective. He confirmed that, subject to occupational health and safety clearance and the okay from he and his dermatologist, he could wear a wig (at his choice) as an interim measure whilst he and the company continued to explore compliance. 105 It was agreed that he then said that he was concerned that the company was pressing him to wear a wig and that, in doing so, the company was taking away his right to his religious beliefs. Ms Bischoff had then indicated that it was his choice to wear a wig and that the company would never repress his right to express his religious beliefs. Mr Taleski agreed that he had asked whether he could wear a hair net and that Ms Bischoff had said that he could not.106 At the end of the meeting, it was recalled by Mr Taleski that he had asked for an investigation into whether he could get an exemption. Ms Bates had responded that he had already raised this issue in his KOWF complaint and that she would send him the information about how to seek a review.107
Email to Ms Bischoff dated 8 June 2011
[71] Mr Taleski agreed that, in this email, he confirmed that he was seeing a Doctor the next day to obtain a referral to the dermatologist. He indicated that he got the referral but did not see a dermatologist. 108
Email to Mr Borghetti dated 24 June 2011
[72] It was confirmed by Mr Taleski that he had emailed Mr Borghetti, the CEO, because he was dissatisfied with the outcome of the investigation. He explained that the reason that he put in the email that he had been advised that he would need to forward it to Mr Borghetti for further investigation was because that was what Ms Bates had implied. It was recalled that Ms Bates had said in the meeting that he (Mr Taleski) would have to contact Mr Borghetti. He denied that Ms Bates had said that the review would be conducted by Mr Borghetti and that she would provide the information to him for review. He agreed that, in Ms Bates’ email, dated 17 June 2011, she had stated that she was compiling a file on the matter which would be forwarded to Mr Borghetti for him to conduct a review of the decisions that had been made under the KOWF process and that he was to send her anything that he wanted included in the file. It was Mr Taleski’s evidence that he was taking the initiative because he knew that the information would end up with Mr Borghetti whether via Ms Bates or via himself. If it was taking longer than he had expected, then he would do it himself and go to Mr Borghetti directly, on the basis of his previous experience. 109
[73] Mr Taleski recounted that he had received an email in response from Mr Borghetti which rejected his review application. It was said that Mr Borghetti’s position was along the same lines as Mr Daley’s findings in that he supported management’s decisions that required him (Mr Taleski) to comply with the grooming regulations in order to fly. 110 Mr Borghetti had also invited him to provide the names of those employees who were flying and whom he believed to be non-compliant. It was stated that he did not think it was his place to provide the names of those employees he believed were non-compliant but were flying.111 It was stated that Mr Borghetti had not told him that it was inappropriate for him to have emailed him. Mr Taleski also said that he had not been told that he had gone outside the typical processes to complain about matters to Mr Borghetti.112
[74] During cross examination, Mr Taleski confirmed that he was familiar with the Grievance Resolution Policy and that he understood what it said in relation to the steps and the people to whom the complaints were meant to be progressed. 113
Meeting on 6 July 2011
[75] The purpose of this meeting with Mr Henning and Ms Bates, which was requested by Mr Taleski, was said to be so that Mr Taleski could show them a new hairstyle which he was hoping would be compliant. Mr Taleski agreed that he had told Mr Henning that he had had his hair cut. He recalled that there was discussion about when he could comply with the grooming regulations and if so, what was the timeframe. It was indicated that he was not in a position to provide a timeframe. 114
[76] It was recalled that Mr Henning had said that, at first glance, he had thought that Mr Taleski’s haircut was compliant. He had also said that he appreciated that Mr Taleski had had a haircut. It was agreed that Mr Henning had told him that it was still not quite the right length but that it just needed a little bit of tidying up to be compliant. Mr Henning had then asked if he would be prepared to do that and he had responded yes. 115
[77] Ms Bates was recalled to have then inspected his hair and had found that he had pinned it up and that it had a wet look because he had put product in to keep the pins in place. Mr Taleski stated that he had had his hair trimmed by about a centimetre and that, if it was not pinned back, it would have hung past his collar. It was recounted that Mr Henning, with some shock, then said that Mr Taleski was still non-compliant and that his hair needed to be cut - a short business style haircut, beard shaved and sideburns the correct length. 116
[78] Mr Taleski agreed that he had responded by saying that Mr Henning was clutching at straws. Mr Henning had replied that Mr Taleski needed to have his hair cut. Ms Bates had asked as to what help he could be provided with to become compliant and Mr Henning had said that they wanted to work with him and were not clutching at straws. Mr Taleski confirmed that he had agreed that he would go to the hairdressers the next day and get it cut and that he would meet with Mr Henning in two days time to show him his haircut. It was also recalled by Mr Taleski that he had complained that he felt he was being targeted and that other people were not complying but were still flying. 117
[79] It was recalled that, towards the end of the meeting, there was some discussion about the religious reasons for his non-compliance. Mr Taleski recounted that they had asked if it was a tenet of his faith which they all concluded that it was not. He indicated that Mr Henning had explained that he understood him wanting to have his hair long to mourn the death of his mother but that, as his mother had died 10 years ago, when was the mourning period going to be up so that he could be compliant? Mr Taleski recalled his response to be - until he got over it/it takes as long as it takes. He stated that he felt pressured because they wanted an answer. When questioned by Mr Henning as to whether this was an actual requirement of his religion or his interpretation of it, Mr Taleski said that he had responded that it was his interpretation because he felt the need to do it. 118
[80] Mr Taleski confirmed that there was also a discussion about wearing a wig and that he had indicated that he had tried on some wigs but that he thought that they were going to be uncomfortable. It was recalled that Ms Bates had stated that it was a matter for him to either pursue or not to pursue. He had also told Mr Henning and Ms Bates that he was still waiting on an appointment with the dermatologist. 119
Meeting on 8 July 2011
[81] Mr Taleski was unsure about the exact date of the meeting with Mr Henning and Ms Daley with Ms Bates attending later. He confirmed that it was the follow-up meeting but said that he did not recall precisely what had been discussed. Mr Taleski confirmed that he had styled his hair deliberately to give the appearance of short hair and that it was mentioned during the meeting that his hairstyle had a wet look. 120 He agreed that Mr Henning told him that, as he had pinned his hair back to look like it was short, it was a non-compliant hairstyle. It was acknowledged that, prior to this meeting, on two occasions, he had presented with his hair pinned back and had been told that it was non-compliant. Mr Taleski’s response was said to be that, this was the only thing he could do and that he was intending to grow it longer.121 He had also said that he had been told by Ms Bischoff and Ms Daley, in 2010, that he could wear his hair tied back in a bun or a ponytail. Mr Henning had responded by saying that that had been for religious reasons to mourn his mother and that he had been told in December 2010 that he had been given sufficient time to mourn and was required to cut his hair.122
[82] Mr Henning was also said to have asked him when he could comply with the grooming requirements. Mr Taleski recalled that he had refused to give Mr Henning an answer. There was again a discussion about his religious ground with Mr Taleski saying that he was choosing to do this because that was his interpretation of showing respect for the 10th anniversary of his mother’s death. He agreed that he had also told Mr Henning that religion was not the only basis on which he wanted to grow his hair long but that there was also his BDD. Mr Henning had then asked Mr Taleski to explain the link between BDD and not cutting his hair and also what treatment he was having and what the prognosis was. Mr Taleski’s response was that he was uncomfortable talking about it with Mr Henning and that he had not sought treatment at that stage and did not intend to because he did not feel comfortable talking to a psychologist. This was because he knew what made him feel comfortable and that was wearing his hair long. 123 Mr Taleski had then suggested that he could wear his hair tucked under in a loop. Mr Henning’s response was that that would not be compliant either and that he needed a short business style haircut.124
[83] It was stated that, when Ms Daley had a look at his hairstyle, she asked if she could touch it. Mr Taleski confirmed that he became quite upset at her question and that she had refrained from further inspecting it. 125
[84] Mr Taleski recalled that Mr Henning had asked if he could take a photo of his hairstyle because he wanted to show it to other people. It was stated that he had said no and that Mr Henning had respected his wishes. Mr Taleski recalled that he told Mr Henning about BDD and the avoidance of photos. 126 He gave evidence that his BDD extended to him actively avoiding having his photo taken in certain situations because, if he looks at the photo, he will feel anxious or focus on what the flaw was. He stated that it was even worse if the photo was shown to someone else and he had not seen it beforehand because he would then want to see if the photo was okay which may make him appear vain. It was explained that, if Mr Henning had taken the photo and wanted to show it to him, that would have caused him distress but he would have wanted to see it to make sure that he thought it was okay. He indicated that the distress would mean that it would be on his mind all day and that he would go home and still be thinking about it.127
[85] With respect to some of the photographs that had been tendered, Mr Taleski confirmed that, in the large group photo and the close-up, it showed him happy and smiling and relaxed and not in the slightest distressed at having his photo taken. He denied that his refusal to have his photo taken by Mr Henning because it was related to his BDD was pure make-believe. 128
[86] He said that he had repeated his belief that he was not being treated fairly and that he had again pointed out that there were other employees who were not meeting the grooming requirements yet were still allowed to fly. It was stated that he did not recall that a specific date was set for being compliant at that stage. 129
[87] Mr Taleski denied saying that he should not be made to become compliant. 130
Correspondence /medical certificates dated 14 July 2011 and 20 July 2011
[88] It was confirmed by Mr Taleski that he had received a letter from Mr Henning, dated 14 July 2011, following up on the meeting of 8 July 2011. He recalled that he had taken offence at the letter but agreed that the things that were mentioned in the letter were those that had been discussed at the 8 July 2011 meeting. He indicated that he understood that Mr Henning’s issue was that he (Mr Taleski) had not provided any medical evidence which linked his BDD with his need to have his hair long. 131 He agreed that the letter asked him to provide further information by 25 July 2011 and that, failing this, he was required to demonstrate compliance with the grooming regulations by 1 August 2011. It was understood that, failing to do either could lead to the termination of his employment.132 Mr Taleski confirmed that he was aware of the company’s unfair procedure.133
Medical certificate from Dr Presswell dated 19 July 2011
[89] Mr Taleski stated that he provided a medical certificate on 19 July 2011 which stated that he was receiving management regarding a body image disorder. 134 He agreed that the certificate did not provide all of the information that Mr Henning had requested because he did not think that he had asked the Doctor to go into a long winded explanation of the link between his BDD and his not being able to cut his hair. It was stated that he did not know exactly what Mr Henning was requesting. Mr Taleski confirmed that Mr Henning wanted to know the timeframe for his compliance. He indicated that he asked the psychologist for this information but not Dr Presswell. This was because Dr Presswell would not have known what he was working on with Mr McGartland and so she could not have answered truthfully.135
Letter from Dr Bosnich dated 20 July 2011
[90] Mr Taleski recounted that he also provided the company with a letter from Dr Bosnich dated 20 July 2011 which indicated that he was suffering from BDD which required him to wear his hair longer than would be generally accepted. He did not recall being asked any questions by the company regarding the medical certificate or the letter. 136
Emails between Ms Jones and Mr Taleski - 22-25 July 2011
[91] It was confirmed by Mr Taleski that Ms Jones, in her email dated 22 July 2011, had told him that there was increasing urgency for the company to either set a timeframe for his compliance or know whether he could become compliant within a timeframe. He agreed that he had responded that he could not comply in relation to a timeframe. Mr Taleski recalled that he had requested an extension which was not granted by the company. He then advised Ms Jones, on 25 July 2011, that he had a temporary measure to make the grooming standards. 137
[92] With respect to the issue of alternative roles, it was Mr Taleski’s view that Ms Jones had incorrectly stated that he had refused the offer of the sales position on the basis of travel. 138
Email from Ms Jones dated 28 July 2011/ meeting with Mr Henning on 29 July 2011
[93] Mr Taleski agreed that the email was a follow-up of a discussion between himself and Ms Jones on 27 July 2011. He confirmed that they had talked about eight weeks to be compliant or find out what was going on in another four weeks. Further, he agreed that he had told Ms Jones that he had bought a wig and that he wanted to show the wig to Mr Henning. He agreed that he was aware of the procedure that was to be followed and the timeframes that had been identified. 139
[94] The meeting with Mr Henning, to show him that wig, took place on 29 July 2011 with Ms Bates present by telephone. Mr Taleski agreed that he wanted to be back at flying within that eight-week period. He recalled that that discussion with Mr Henning was about his wearing a wig as a temporary rationale for that eight-week period but believed that it was only at the beginning that it was only as a temporary measure. 140
[95] The outcome of the meeting was confirmed as Mr Henning being happy with the way that the wig looked and that Mr Taleski would go back on the flight roster during that next eight week period. Mr Taleski agreed that Mr Henning had told him that the wig was an acceptable temporary measure to get him back flying. It was recalled that he said to Mr Henning that he was embarrassed/felt ridiculous wearing the wig and that he had gone against all advice in wearing it. Ms Bates had stated that he was not being forced to wear it. Mr Taleski recounted that he had said that he would wear the wig as it was only temporary but that he still felt that he was being discriminated against on religious and medical grounds. 141
[96] A follow-up letter was sent by Mr Henning, dated 29 July 2011, which Mr Taleski agreed was an accurate reflection of the meeting. He stated that he had put forward the option of wearing a wig despite the Doctor recommending something else which the company did not accept. It was confirmed that, in this letter, Mr Henning was giving him a choice which was that, if for any reason he did not want to feel that he could wear the wig, he would be given suitable alternative duties of the next eight weeks. Mr Taleski had declined to confirm in writing that he was happy to wear the wig saying that they would discuss this at the conciliation of his HREOC complaint. 142
Australian Human Rights Commission (AHRC) Complaint and conciliation conference on 3 August 2011
[97] The complaint made by Mr Taleski to AHRC was confirmed to cover the same matters as were being dealt with in this application. 143
[98] Mr Taleski stated that he had signed a document at the conciliation conference which, it was decided, would override everything else and was the new agreed timeframe of everything that would be done from that day onwards. 144 An agreed outcome of the conciliation conference on 3 August 2011 was said to be that he was willing to wear a wig to comply with the grooming requirements so that he could go back flying.145 It was stated that there was agreement for him to wear a wig as a temporary measure whilst he was sorting out his compliance issues.146 However, he did not recall agreeing as to how long this temporary measure (wearing a wig) would last. Mr Taleski disagreed that the next deadline that was set was 1 September 2011.147 It was recounted that he then returned to flying duties wearing the wig as a temporary measure.148
[99] Initially, Mr Taleski could not recall as to where the date of the end of September 2011 came from with respect to his becoming compliant by then or whether it was an agreed date. 149 He could remember that there was agreement at the conciliation conference that there would be a review and believed that he had agreed that he would be compliant by September 2011 at the conciliation conference.150 It was indicated that there was not a set timeframe as it was until he went and saw the psychologist and got more information. Mr Taleski stated that the signed document did not demonstrate his willingness to wear the wig as a temporary measure whilst compliance with the grooming regulations was sorted out. He disagreed that wearing the wig was a temporary measure whilst he became compliant with the grooming regulations by cutting his hair or by demonstrating when he could be compliant with the provision of suitable medical evidence.151 However, he agreed that he was allowed to return flying on condition that he wore the wig.152
[100] During cross examination, Mr Taleski agreed that he was told by Virgin Australia on a number of occasions that he was required to be compliant by a particular date and also that he had been given a number of time frames by which to be compliant. 153 Further, the applicant agreed that he was given time frames within which he was required to provide Virgin Australia with certain documentation.154
[101] Mr Taleski confirmed that he had withdrawn the religious discrimination allegation of his HREOC complaint at the conciliation conference. 155
9 August 2011
[102] Mr Taleski returned to work on 9 August 2011 and wore the wig during flight times. Following a discussion with Ms Bischoff, it was agreed that during his rest times and on his own time, he took the wig off. 156
Discussion with Mr Henning on 26 August 2011
[103] A discussion took place between Mr Henning and Mr Taleski on 26 August 2011 about how he was going with his treatment. Mr Taleski recalled that there was a discussion about whether he was continuing to see his psychologist and getting treatment for BDD. He had responded that he was continuing to receive treatment. It was confirmed that, during this conversation, he had complained to Mr Henning that he felt self-conscious wearing the wig but that he was telling the crew about it and that overall they had been supportive. 157
[104] Mr Taleski confirmed that the email Mr Henning sent to Ms Bates contained an accurate record of the conversation that they had had. 158
Medical certificate dated 1 September 2011
[105] It was agreed that, on 1 September 2011, Mr Taleski provided his employer with a medical certificate from Mr McGartland that stated that he described the symptoms of Body Dysmorphia Disorder. 159 It was Mr Taleski’s view that this certificate said that his BDD condition required him to have his hair long or tied back. He believed that the certificate provided Mr Henning with exactly what he had been requesting including timeframes (a considerable period of time). Mr Taleski agreed that it did not provide an end date because it was not a broken arm that could be fixed in eight weeks.160 Further, it was stated that, to his knowledge, Mr Henning did not contact his Doctor nor did he (Mr Taleski) withdraw the offer for that to happen.161
[106] Mr Taleski confirmed that he provided the company with this certificate and that it was quite a while after, possibly because he was flying. 162 He indicated that Ms Bischoff had said that, at that stage, they would not accept his hair being tied back and that she would get back to him. He did not believe that there was any further discussion about an agreed date for compliance when he handed in the medical certificate.163
[107] There were said to have been follow-up meetings with Mr Henning during September 2011 regarding his progress. Mr Taleski recalled that Mr Henning and Ms Bischoff had told him that there was no timeframe but that the company just wanted to make sure that he was looking after himself. 164
Meeting on 4 October 2011
[108] Mr Taleski confirmed that, prior to the meeting on 4 October 2011, he received an email and letter from Mr Henning dated 30 September 2011. 165 He agreed that the letter and email stated that 4 October 2011 was the date by which he was to comply with either the grooming regulations or the provision of further medical information. It was accepted that the information specified in Mr Henning’s letter was information that he had been directed to provide at the meeting of 29 July 2011 and at the conciliation conference on 3 August 2011. He disagreed that timelines had been set as a result of the conciliation conference.166
[109] It was Mr Taleski’s evidence that, as at the date of the meeting, he had already provided a diagnosis of his condition as BDD as set out in the letter from Dr Presswell of April 2011. He did not accept that Virgin Australia wanted a diagnosis from his psychologist which confirmed a diagnosis of BDD. He stated that it was his understanding that the company wanted reconfirmation of what they had already been told by Dr Presswell. 167
[110] There was a meeting between Mr Taleski, Mr Henning, Ms Bischoff and Mr Hart (Flight Attendants Association of Australia (FAAA)) on 4 October 2011. It was denied by Mr Taleski that this meeting marked the end of the eight week period. 168 He believed that this meeting had been superseded by the outcome from the HREOC conciliation because there was no timeframe set as part of the conference. Mr Taleski stated that the meeting was to discuss his unsuccessful application and also his compliance issues. However, it was not about the eight week timeframe which had been set prior to the conciliation conference as there had been no timeframe set as part of the conciliation conference.169
[111] It was confirmed by Mr Taleski that he was told by Mr Henning and Ms Bischoff during a lunch meeting that it was an outcome of the conciliation conference that all timeframes were in essence out of the window and that there was no timeframe. 170
[112] Mr Taleski agreed that he told Mr Henning that his next appointment with his psychologist was on 13 October 2011 and that Mr Henning had asked him to obtain a copy of his treatment plan and a diagnosis of his current situation from his psychologist. He did not think that Mr Henning had asked that the psychologist indicate that there was a link between his BDD and being unable to cut his hair. 171 Mr Taleski confirmed that the reason Mr Henning gave for requiring a copy of his treatment plan was to see if the company was able to make any reasonable adjustments to assist him in becoming compliant on a permanent basis.172 He agreed that he had asked if he could wear his hair in a pony tail whilst he was receiving ongoing treatment from his psychologist and that the company’s response was no.173
[113] It was initially denied by Mr Taleski that he had said during the meeting that he would never cut his hair. During cross examination, Mr Taleski indicated that he had said that he had decided that he did not or would not ever become compliant with policy and that he was never going to cut his hair. 174 He agreed that he had said that he would continue to wear the wig.175 Mr Taleski conceded that Mr Henning was possibly not happy with that.176
Complaint regarding recruitment process
[114] Mr Taleski confirmed that he had sent a letter of complaint 177 to Mr Beveridge on 4 October 2011 regarding the recruitment process, an email178 to Mr Daley on 6 October 2011 requesting further investigation of his KOWF complaint, an email179 to Mr Borghetti, on 11 October 2011, complaining about the recruitment selection process and an email180 to Mr McCallum reiterating his KOWF complaint. It was stated that Mr Henning did not give him a direction to stop sending emails to senior managers and to follow the appropriate processes for complaints.181 It was Mr Taleski’s view that he was a whistleblower and that he had decided to “blow the whistle” on what he had observed within the company. He did not accept that his emails were not in accordance with the KOWF policy. This was because he had received several invitations from the managers requesting more information about the grooming issue. Further, if he had been acting inappropriately, these managers would have advised him in writing. In addition, Mr Taleski stated that there was a direct communication culture within the company which encourage communication between employees and managers. He said that he therefore took it upon himself to contact these managers.182
[115] He agreed that Mr Borghetti had told him that the matter of his complaint was at an end and that he was now to comply with the directions of his managers. However, it was stated by Mr Taleski that he did not believe that the matters in his KOWF complaint had been resolved to his satisfaction. He did not accept the result of this complaint because it was an unfair result. 183
Email exchange between Mr Henning and Mr Taleski on 10 and 11 October 2011
[116] Mr Taleski confirmed that the email from Mr Henning dated 10 October 2011, was a follow-up email from the meeting on 4 October 2011. 184
[117] The email from Mr Taleski to Mr Henning on 11 October 2011 was said to have been written because he felt that the Doctors had recommended one thing but Virgin had decided something else. The company not going with the Doctor’s recommendation was affecting him negatively. 185 Mr Taleski explained that what he was saying in his email was that he would do practically anything to be able to get back in the air but that this was affecting him but he was willing to do it and keep going. His email had also said that his psychologist and GP had given a recommendation to the company but the company had not made any adjustment following recommendation.186
Mr McGartland’s medical certificate dated 13 October 2011
[118] Mr Taleski confirmed that he saw the psychologist (Mr McGartland) on 13 October 2011 who felt that he would make better progress with a specialist in BDD (Professor Castle). Mr McGartland had provided a medical certificate to this effect. 187 Mr Taleski said that he had been unable to obtain a treatment plan from Mr McGartland. He agreed that the medical certificate did not provide a diagnosis of his condition.188
[119] Mr Taleski had not given a medical certificate to his employer because he did not get the chance. 189
Meeting on 20 October 2011
[120] It was agreed by Mr Taleski that he was asked by Mr Henning to come to a meeting to review the current situation and to talk further about it. 190 He denied that, by this time, he understood or should have understood that he had failed to comply with Mr Henning's direction to provide him with information from his psychologist by 14 October 2011.191
[121] Mr Taleski attended the meeting with a representative from the FAAA. 192 He confirmed that he was put on notice, at that meeting, of some very serious allegations that the company wished to make against him and he indicated that he was given an opportunity to respond. He agreed that he understood from Mr Henning that if he did not provide them with information to their satisfaction, within a certain timeframe, one of the outcomes would be the termination of his employment. It was recalled that the timeframe for his response was initially 24 hours but that he had requested more time - until 24 October 2011. Mr Taleski recounted that his extension of time request was granted but not at that meeting and that the company was unwilling to grant him more time than that.193
[122] With assistance from the FAAA, Mr Taleski had emailed his response on 24 October 2011. 194 Mr Taleski agreed that he had then received a letter from Mr Henning dated 24 October 2011, advising that, after taking his letter into consideration, the decision had been made to terminate his employment on that date.195
[123] It was Mr Taleski’s view that he had provided the information that the company had requested and was not refusing to co-operate or provide the information sought. 196 Further, Mr Taleski said that wearing the wig met the grooming requirements and that he had not been told not to contact people the way he did.197
Professor Castle and Dr Vosnij
[124] It was confirmed by Mr Taleski that he saw Professor Castle for the first time on 21 November 2011 and that he obtained a letter from him on 22 November 2011. Further, he had obtained a letter from Dr Vosnij, his hair transplant Doctor, dated 18 January 2012. Mr Taleski denied that Dr Vosnij’s letter said that he could not wear a wig for longer than four months. He stated that he could wear a wig cautiously for up to 4 months and then after that, there was no issue about wearing a wig. 198
[125] Mr Taleski explained that he was seeking reinstatement and that he was proposing to comply with the grooming requirements by wearing a wig at all times whilst flying. He believed that wearing a wig was complying with the grooming requirements as it was no different from a gentleman who was bald wearing a toupee or a wig. 199 He said that he could show compliance but that, currently, he could not show compliance with the pictures in the Look Book. Mr Taleski stated that the Look Book does not require a short business haircut and that the pictures were not an exhaustive list of business style appropriate haircuts.200 He agreed that Mr McGartland's medical certificate, dated on September 2011, was the only medical evidence before the Tribunal about his ability to safely and appropriately where a wig.201
[126] It was explained by Mr Taleski that he would be able to wear a wig whilst flying because Professor Castle and another Doctor had prescribed two different medications which had helped to cope with his BDD and anxiety. 202
The Look Book
[127] Mr Taleski confirmed that he had read the Look Book and confirmed that it was the result of Virgin wishing to change direction to a more tailored business look for flight staff. He accepted that the Look Book set out the grooming policy. 203 He stated that he had thought that, as a compromise, he could style his hair in the manner permitted for female employees (similar to a ponytail). It was accepted by Mr Taleski that the Look Book prescribed a business appropriate style haircut only for men. However, he did not accept that it was not permitted for a man to have a ponytail. He said that he understood that “business appropriate style of haircut” was no longer than collar length. It was explained that he had approached Ms Bischoff when his hair was getting to the collar length stage and he was looking at different options to make it above the collar.204
[128] Mr Taleski believed that, if it is a business appropriate style haircut, one could have a small ponytail but if it was longer than the collar then that would be an issue. He clarified that it was not a ponytail per se because one could have a bun kind of style which is a male version rather than having ribbons and things. He held the view that one could have a business appropriate style haircut which was longer than what was shown in the Look Book (a bun or ponytail). Mr Taleski said that the photos of approved hairstyles for men in the Look Book was not an exhaustive list of possible business appropriate hairstyles. 205 He accepted that he was told by Virgin Australia that they considered a “business appropriate hairstyle” for a man to be a short haircut. However, he did not know that it was the position of Virgin that all of its male flight staff were to have a look which resembled one of the photographs in the Look Book.206
[129] Mr Taleski recalled that the company put to him that they required information about a treatment plan in July or August 2011 (after his first dismissal). 207
MS BISCHOFF
Mr Taleski’s email of 7 July 2010
[130] It was indicated by Ms Bischoff said she was away on leave in July 2010 when Mr Taleski emailed, on 7 July 2010, to say that he was going to grow his hair longer. She explained that Mr Taleski had told Ms Daley that he was looking at a way in his religion to mourn the passing of his mother. He had said that most men would grow a moustache but he had opted to show his respect or mourning by growing his hair. It was recounted that Ms Daley spoke with Mr Henning about the situation. Ms Bischoff recounted that there were two options for Mr Taleski at the time. He could either tie his hair back in a bun if he had to grow it or he needed to be compliant with the grooming regulations. She indicated that Mr Taleski’s hair was not long enough at that stage to put it in a bun at the nape of his neck. 208 It was stated that, at that time (July 2010), the decision was made by Ms Daley and Mr Parsons that a bun would be compliant. Ms Bischoff said that the exception was to allow Mr Taleski to wear a bun (had his hair got long enough) and that it had been made whilst he was on leave by Ms Daley, the uniform hanger manager and Mr Parsons.209
[131] Between 7 July 2010 and December 2010, it was confirmed by Ms Bischoff that Mr Taleski continued to grow his hair and that she continued to supervise it. She indicated that, during this period, Mr Taleski had his hair in a way that looked like it was compliant but was still long but not in a bun. It was stated that it was not compliant with the grooming regulations but that Mr Taleski believed that his hair looked neat. Ms Bischoff said that whenever she saw Mr Taleski, his hair was neat and presentable. 210 It was indicated that she had a conversation with Mr Taleski in the old leader cabin crew office and told him that his hair was getting way too long and that he needed to either put it into a bun or comply with the male grooming regulations. She recalled that he said that it was not long enough yet to put it into a bun. She could not recall the exact date of this conversation.211
[132] Ms Bischoff recalled receiving regular feedback that Mr Taleski’s hair was not compliant, including on training days and from a flight manager. 212 She explained that the Look Book contains the uniform guidelines and that, if an employee was not in uniform, there was no reason to be compliant with the Look Book.213
Meeting on 9 December 2010
[133] It was recalled by Ms Bischoff that a meeting between herself, Mr Parsons and Mr Taleski took place on 9 December 2010 regarding Mr Taleski’s cabin leader application. At the conclusion of the meeting, the issue of Mr Taleski’s hair was raised and Mr Parsons told him that his hair was not acceptable at that point in time and that he had to cut his hair. 214 What had changed between July 2010 and December 2010 was said to have been the introduction of the Look Book and with it, a little stricter and more professional approach. Ms Bischoff clarified this statement by saying that, even though the Look Book did not come out until February 2011, during period of July 2010 – December 2010, they had started speaking to cabin crew about the changes that would be coming.215
[134] The decision, made in July 2010, that a bun was acceptable was said to have been made in consultation with Mr Parsons and the uniform hanger manager. Ms Bischoff stated that in December 2010, Mr Parsons’ position had changed as a result of the changes in the business (the game change program and the Look Book). 216
[135] Ms Bischoff confirmed that Mr Taleski had said at this meeting that he was being treated differently to other employees who were not complying with what became the Look Book. She recalled that Mr Taleski made her aware of an employee with a goatee who was flying. She said that each individual cabin crew member’s situation was discussed individually and confidentially and addressed on an individual basis. 217 It was recounted that Mr Taleski explained that he had issues with regard to cutting his hair and that she had asked if it was okay for her to disclose the reason why he did not want to cut his hair. Ms Bischoff did not recall Mr Parsons saying that he did not care what the reasons were, that they were irrelevant and that he was to get his hair cut.218
Medical certificate dated 18 January 2011
[136] It was Ms Bischoff's evidence that the first medical certificate given to her by Mr Taleski was the one dated 18 January 2011 from Dr Spencer who suggested that he try and keep his hair longer. She recalled that she had a conversation with him and had asked for a diagnosis and also a timeframe. It was explained that, if Virgin Australia was looking at making reasonable adjustments or exemptions to the grooming regulations, she needed a timeframe within which he could comply with those regulations. During cross examination, Ms Bischoff indicated that she was not aware of any reasonable adjustments that had been made within the business. 219
[137] Ms Bischoff stated that the business required more information about why Mr Taleski should have his hair longer. This was said to be because, if the business was going to make modifications to the grooming regulations, she wanted to have more information about why business should make that decision. It was also indicated that she would have spoken to Mr Parsons about the medical certificate but could not recall the exact date or the details of conversation. 220
[138] It was recalled by Ms Bischoff that she told Mr Taleski that she would require more information as the medical certificate was insufficient. She stated that she would have asked him to provide further documentation or evidence regarding his condition and a treatment plan - more information about why he could not cut his hair. 221
Uniform Department - 24 January 2011
[139] It was confirmed by Ms Bischoff that Mr Taleski had emailed the Uniform Department around 24 January 2011 to clarify the actual requirements of the Look Book. She agreed that again, on 12 February 2011, Mr Taleski sought clarification. It was said that she had not taken exception to this but that, as it was part of her role as his direct manager, any concerns regarding grooming needed to be discussed with her. The alternative way the escalation process which meant that, if Mr Taleski was uncomfortable with her decision, he had the opportunity to speak to her manager. She felt that Mr Taleski was going over her head or to other departments to get another answer. 222
Email from Mr Taleski to Ms Bischoff and Mr Parsons dated 2 April 2011
[140] Ms Bischoff agreed that, through this email, Mr Taleski had authorised her to speak to the Doctor. 223 She recalled that, prior to being able to formulate a plan regarding questions for Mr Taleski’s Doctor, Mr Taleski had been made SOC. This was the result of Mr Taleski being seen by the general manager in the terminal with hair that was not meeting regulations and he then made the decision to make him SOC. It was agreed that Mr Taleski was made SOC at the complete discretion of Virgin Australia and that he had no say in the decision. It was recalled that Mr Taleski was made SOC because the business was not satisfied with the information he was providing.224
[141] It was indicated by Ms Bischoff that she did not know why there was a bit of a gap between receipt of permission to provide questions to Mr Taleski’s Doctor and doing so. She recalled that she would have had a discussion with Mr Parsons. Before they could implement the discussion with him around the authorisation to speak to his Doctor, Mr Taleski was made SOC on 7 April 2011. Ms Bischoff stated that there was no secret agenda with respect to Mr Taleski apart from the fact that there was not enough medical information. 225
[142] Ms Bischoff explained that she had contacted Mr Taleski to tell him what had happened and to make him SOC. It was stated that, in order to go back online, he was to comply with the grooming regulations or seek more information including a diagnosis. 226 She disagreed that the company was telling Mr Taleski, that if he wanted to fly, he had to cut his hair. Ms Bischoff said that the company was telling him that he had to comply with the grooming regulations and that she did not see that they amounted to the same thing. For her, it was about compliance. When asked to put herself in her crew member’s shoes, she indicated that compliance would have meant for him cutting his hair and meeting the grooming regulations in relation to having hair no longer than 2 cm.227
Medical certificate dated 8 April 2011
[143] The second certificate was from Mr Bosnich and Ms Bischoff stated that it did not provide a diagnosis nor did it actually state what the medical condition was. She indicated that she would have asked for more information- a diagnosis and a timeframe. 228
Medical certificate dated 12 April 2011
[144] With respect to the certificate from Dr Presswell, Ms Bischoff stated that it did not provide the information she needed. She said that the certificate did not contain a diagnosis or stated that Mr Taleski had a body image disorder. Rather it said that he was receiving management regarding a body image disorder. She agreed that it said that Mr Taleski was suffering from unresolved grief issues and that he would be referred to a psychologist. Ms Bischoff had again asked for a diagnosis and a timeframe but had also started to talk about what treatment plans could be put in place to make sure he was compliant. It was her view that this certificate did not contain a diagnosis. 229
[145] It was denied by Ms Bischoff that she was nitpicking and indicated that she had had a discussion with Mr Parsons at the time. 230
[146] Further, the medical certificate was said to have asked the business to allow Mr Taleski to wear his hair longer which was not a reasonable request as there was not enough information to support such a request. 231
[147] Ms Bischoff indicated that, even though this certificate stated that Mr Taleski was receiving treatment regarding a body image disorder relating to the length of his hair, she did not consider it to be diagnosis as it simply said that he was receiving treatment. 232
[407] On the other hand, Virgin Australia submitted that Mr Taleski was given an opportunity to respond orally to the allegations at the meeting on 20 October 2011 and in writing on 24 October 2011. With respect to the applicant’s contention that the outcome was pre-determined, it was argued that the purpose of the internal meeting on 18 October 2011 was simply to discuss all possible outcomes including dismissal, This did not mean that the outcome of the meeting on 24 October 2011 was, therefore, pre-determined.
[408] Mr Henning, in his evidence, was quite clear that the decision to terminate Mr Taleski’s employment was made during the meeting on 18 October 2011. 564 On Mr Henning’s behalf, Ms Allan put forward his recommendation to dismiss Mr Taleski to the meeting of Senior Managers on 18 October 2011.565 It was Mr Henning’s evidence that “we got to a point where we didn’t really have many options to consider. I was proposing termination at that meeting (18 October 2011).”566 The evidence shows that the recommendation was accepted and a script was duly developed on 19 October 2011 for Mr Henning to read to Mr Taleski at the meeting on 24 October 2011.567 The script stated that the company had come to the conclusion to terminate Mr Taleski’s employment.568
[409] It is noted that Ms Bates’ evidence about this meeting differs from that of Mr Henning. Ms Bates recalled that the purpose of the meeting was to discuss what options were available to move forward. She confirmed that Ms Allan put forward Mr Henning’s recommendation but described his recommendation as being that termination was the proposed/likely outcome. Other options were said to have been spoken of as part of the discussion. 569
[410] On balance, I prefer Mr Henning’s account of the nature of his recommendation and the decision that was made at the meeting. Mr Henning’s written recommendation to the meeting and the written script prepared for the meeting on 20 October 2011 support Mr Henning’s recollection of the decision made at the meeting on 18 October 2011.
[411] As the decision to terminate Mr Taleski’s employment was made prior to putting the allegations to him and therefore before he had an opportunity to respond, I am not satisfied that Mr Taleski was given a genuine opportunity to respond to the reasons for his dismissal.
Support person – s.387(d)
[412] The evidence indicates that Mr Hart (FAAA) attended the meeting on 20 October 2011 representing Mr Taleski when the allegations were put to him. It was also Mr Taleski’s evidence that the FAAA assisted in drafting his show cause response. 570
Previous warnings regarding the unsatisfactory performance – s.387(e)
[413] As the reasons for Mr Taleski’s dismissal related to his conduct, this factor is not relevant.
Impact of the size of the business/absence of dedicated human resources – s.387(f) and s.387(g)
[414] No submissions were made by the parties about the impact of the size of the business or on the absence of dedicated human resources.
[415] The respondent is not a small business and has a dedicated Human Resources area, members of which were involved in the issues regarding Mr Taleski and the grooming requirements.
Any other matters – s.387(h)
[416] On behalf of the applicant, it was submitted that there were a number of other matters which were relevant to the Tribunal’s considerations. They were:
- the inconsistent application of the grooming requirements towards Mr Taleski as compared with other employees eg. Employee X.
- the discriminating application of the Look Book which differentiated between male and female employees in terms of their hair length.
- the insistence that a business style haircut cannot include a ponytail or bun for a male.
- the insistence that the grooming regulations could only be complied with by Mr Taleski if he cut his hair when it should have been clear that cutting his hair would cause him severe distress.
- the disregard for Mr Taleski’s wellbeing as evidenced by the refusal of the company to contact his Doctor despite the clear invitation to do so.
- The agreement reached at the HREOC conference did not include a timeline and this was one of the bases for the dismissal.
- Mr Taleski had maintained that he could be compliant with the Look Book and wear longer hair than would normally be the case.
- Mr Taleski had suggested and worn a wig which was substantially, not simply technically, compliant. If the employer thought that the wig did not look good and looked cheap, it was incumbent upon the employer to point this out to Mr Taleski. 571
[417] No submissions were made by Virgin Australia in this regard.
[418] I have considered the matters submitted by the applicant to be relevant and I consider as relevant the following:
- the inconsistent application of the grooming requirements towards Mr Taleski as compared with other employees eg. Employee X. This is on the basis that the medical certificate that the company relied on, dated 26 September 2008, to allow Employee X to fly, even though he was non compliant, did not specify the nature of his medical condition. 572 It did not meet the medical information requirements that were set for Mr Taleski but was deemed sufficient as Employee X was given an exemption from compliance with the grooming requirements. It also appears that both Mr Taleski and Employee X were suffering from the same medical condition. It may be that Mr Henning sought to treat Mr Taleski and Employee X consistently. However, it cannot be said that the company did.
- the insistence that the grooming regulations could only be complied with by Mr Taleski if he cut his hair when it should have been clear that cutting his hair would cause him severe distress. I have previously found that the medical certificates provided by Mr Taleski stated his medical condition and that it was linked to the length of his hair. There were recommendations also from Mr Taleski’s treating practitioners that he be allowed to keep his hair long whilst undergoing treatment.
Conclusion
[419] In all of the circumstances of this matter, and having taken account of each of the factors in s.387 of the Act, I determine that Mr Taleski’s dismissal was harsh, unjust or unreasonable. There was no valid reason for his dismissal and the outcome had been determined prior to the allegations being formally put to him. Further, the company had treated Mr Taleski differently to another employee who suffered from the same condition and who was non-compliant with the Look Book but who had been allowed to fly. The company also kept on insisting that Mr Taleski needed to cut his hair in order to be compliant when, on the medical information, it was apparent that this would have caused him distress. On the other hand, Mr Taleski did not follow the proper dispute resolution processes nor accept decisions made by the company about his issues. He also did not make it easy for the company to establish, legitimately, the mature of his medical condition and its link to wanting to keep his hair long and his prognosis and treatment plan.
[420] It therefore follows that, pursuant to s.385 of the Act, Mr Taleski has been unfairly dismissed.
REMEDY
[421] Section 390 of the Act sets out when Fair Work Australia may order a person’s reinstatement or payment of compensation for unfair dismissal. It is as follows:
“390 When FWA may order remedy for unfair dismissal
(1) Subject to subsection (3), FWA may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) FWA is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) FWA may make the order only if the person has made an application under section 394.
(3) FWA must not order the payment of compensation to the person unless:
(a) FWA is satisfied that reinstatement of the person is inappropriate; and
(b) FWA considers an order for payment of compensation is appropriate in all the circumstances of the case.”
[422] With respect to the requirements of s.390, I am satisfied that Mr Taleski was protected from unfair dismissal at the time of his dismissal (s.390(1)(a)) and that he has been unfairly dismissed (s.390(1)(b)). Further, Mr Taleski has made an application under s.394 of the Act (s.390(2)).
[423] Mr Taleski is seeking reinstatement to his former position and it was submitted that it was the appropriate remedy in this case. The Tribunal was reminded that all of the respondent’s witnesses gave evidence that Mr Taleski was a good and diligent employee. It was argued that, given the size of the respondent, reinstatement to Mr Taleski’s former position would not impose an unreasonable burden on Virgin Australia. It was contended that there was no evidence before the Tribunal about the impracticality of reinstatement. The Tribunal could be satisfied, on the evidence of Professor Castle, that Mr Taleski will be able to perform his job on the medication prescribed. An Order for remuneration lost between the time of dismissal and reinstatement and continuity of service was also sought.
[424] For its part, Virgin Australia submitted that, if the Tribunal found that Mr Taleski’s dismissal was harsh, unjust or unreasonable, then the Tribunal should receive further submissions from the parties regarding remedy. As the respondent then proceeded to make submissions on the subject of remedy, it would seem to render the request for further submissions redundant.
[425] Virgin Australia argued that reinstatement was not practicable as Mr Taleski cannot comply with the Look Book and has no intention of doing so. Further, Mr Taleski’s evidence, in answer to a question, was highlighted regarding him “think(ing)” that the two medications have helped him to cope with wearing a wig. In addition, it was submitted that no new medical evidence had been provided that would satisfy the Tribunal that Mr Taleski was now able, both physically and mentally, to return to work flying wearing a wig as a permanent solution.
[426] I have considered the submissions of the parties regarding remedy. Section 390(3) of the Act states that payment of compensation must not be ordered unless the Tribunal is satisfied that reinstatement is inappropriate. Reinstatement is therefore the primary remedy when the Tribunal is considering a remedy. Taking all of the circumstances of this case into account, I find that I am not satisfied that reinstatement of Mr Taleski is inappropriate. It was clear from the evidence that Mr Taleski is passionate about flying and is extremely keen to return to doing that. There was no evidence before me of previous or other disciplinary issues and it was the respondent’s witnesses’ evidence that there were no concerns regarding his work performance. Virgin Australia is not a small employer and has a large number of cabin crew employees. There was no evidence before me that the employment relationship had broken down and was irretrievable. Further, when considering the criteria set out in s.387 of the Act, the Tribunal was not satisfied that there was a valid reason for Mr Taleski’s dismissal. For all of these reasons, I am satisfied that reinstatement of Mr Taleski is appropriate.
[427] Section 391 of the Act sets out the requirements regarding an order for reinstatement in the following terms:
“391 Remedy—reinstatement etc.
Reinstatement
(1) An order for a person’s reinstatement must be an order that the person’s employer at the time of the dismissal reinstate the person by:
(a) reappointing the person to the position in which the person was employed immediately before the dismissal; or
(b) appointing the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.
(1A) If:
(a) the position in which the person was employed immediately before the dismissal is no longer a position with the person’s employer at the time of the dismissal; and
(b) that position, or an equivalent position, is a position with an associated entity of the employer;
the order under subsection (1) may be an order to the associated entity to:
(c) appoint the person to the position in which the person was employed immediately before the dismissal; or
(d) appoint the person to another position on terms and conditions no less favourable than those on which the person was employed immediately before the dismissal.”
[428] Having considered all of the material before me and all of the circumstances of this case, I have decided to issue an order 573 reappointing Mr Taleski to the position in which he was employed immediately before the dismissal, namely, cabin crew. The reasons for this are the same as those set out in paragraphs 425 to 426 above.
[429] Section 391(2) of the Act provides that the Tribunal may make an order to maintain continuity of a person’s employment and/or the period of the person’s continuous service with the employer. Having considered all of the material before me, I consider it appropriate to issue an order 574 maintaining Mr Taleski’s continuity of employment and the period of his continuous service with Virgin Australia.
[430] Section 391(3) of the Act allows the Tribunal to make an order for payment lost or likely to have been lost because of the dismissal. The criteria for determining the amount are set out in section 391(4) of the Act.
[431] Virgin Australia has requested that, in the event that the Tribunal determined that Mr Taleski should be paid lost remuneration between the time of his dismissal and reinstatement, the parties be ordered to confer over the amount. The Tribunal is prepared to allow the parties an opportunity to confer in this regard. A three week period, from the date of this decision, will be allowed for these discussions.
[432] In the event that the parties are unable to reach agreement, the parties are to provide the Tribunal with brief written submissions as to what each considered that amount should be. The Tribunal will then determine the appropriate amount of lost remuneration.
COMMISSIONER
Appearances:
M Addison, Solicitor for the Applicant
Ms S Moody, of Counsel for the Respondent
Hearing details:
2012.
Melbourne:
March 8, 9;
May 17, 18.
Final written submissions:
For the Applicant. 29 June 2012.
For the Respondent. 9 August 2012.
For the Applicant. 5 September 2012.
1 Transcript PN 154, 704 - 706, 727 and 1198, Exhibit A2 at paragraph 6 and Exhibit R7 at Attachment CEB-1
2 Transcript PN 708 - 723
3 Ibid PN 728 - 735
4 Ibid PN 737 - 738
5 Ibid PN 739 - 747
6 Ibid PN 158 and 748 - 754
7 Ibid PN 756 - 758
8 Ibid PN 162 759 - 760 and 772 - 773 and Exhibit A2 at paragraph 7
9 Ibid PN 163
10 Ibid PN 761 - 765
11 Exhibit R7 at Attachment CEB-3
12 Transcript PN 164 - 166
13 Ibid PN 181 - 190 and 800
14 Ibid PN 145, 168 - 169, 780 and 785 - 786
15 Ibid PN 774
16 Ibid PN 774 - 777
17 Ibid PN 146 - 147, 778 and 794
18 Ibid PN 171 - 172
19 Ibid PN 781 - 784
20 Ibid PN 786 - 790, 797 and 867
21 Ibid PN 794 - 795
22 Ibid PN 801 - 804
23 Ibid PN 805 - 810
24 Ibid PN 811 - 819
25 Ibid PN 820 - 839, 862, 864, 867 and 2215 - 2217
26 Ibid PN 840 - 843
27 Ibid PN 851 - 859, 865, 903 - 907 and 1548
28 Ibid PN 870 and 2280 - 2284
29 Exhibit R7 at Attachment CEB-4
30 Transcript PN 205 - 208, 869 and 2251 - 2255
31 Ibid PN 209, 2258 - 2269 and 2276
32 Ibid PN 872 - 883
33 Ibid PN 195 - 196, 555 - 561, 908 - 914 and 971, Exhibit A2 at paragraph 10 and Exhibit R7 at paragraph 26
34 Ibid PN 915 - 929, 1014 and 2289 - 2291
35 Ibid PN 968 - 970
36 Ibid PN 982 - 996 and Exhibit R7 at Attachment CEB-5
37 Ibid PN 997 - 1001
38 Ibid PN 1005 - 1007
39 Ibid PN 211 - 217 and 1008 - 1013 and Exhibit R10 at Attachment LMB-01
40 Ibid PN 1015 - 1022
41 Ibid PN 1025 - 1030
42 Ibid PN 224 - 226 and Exhibit A2 at paragraph 12
43 Ibid PN 1471 - 1481 and Exhibit R2
44 Ibid PN 1482 - 1483 and ibid
45 Ibid PN 1483 and 1551 - 1553
46 Ibid PN 1483 - 1490
47 Ibid PN 1554 - 1558
48 Ibid PN 1033 - 1034 and Exhibit R10 at Attachment LMB-01
49 Ibid PN 1034 - 1037
50 Ibid PN 1040
51 Ibid PN 1042 - 1049
52 Ibid PN 2395 - 2401
53 Ibid PN 1050 - 1061
54 Ibid PN 1065 - 1083
55 Ibid PN 1086 - 1094
56 Ibid PN 197 - 203 and 236 - 240, Exhibit A2 at paragraph 13 and Exhibit R10 at attachment LMB-02
57 Ibid PN 241 - 242 and 1109
58 Ibid PN 1562
59 Ibid PN 1110 and 1561
60 Ibid PN 1111 - 1113
61 Ibid PN 251 - 261
62 Ibid PN 1117 - 1123 and 2373 - 2374
63 Ibid PN 2311
64 Ibid PN 1127 - 1154
65 Ibid PN 1156, 414 – 415 and 1161 - 1166
66 Ibid PN 415 - 417 and 570 - 571
67 Ibid PN 1167 - 1176
68 Ibid PN 1177 - 1183
69 Ibid PN 1183 - 1187, 1190 - 1191 and 2372
70 Ibid PN 1188 - 1189
71 Ibid PN 262 - 273, 313 and 1193 and Exhibit R10 at LMB-05
72 Ibid PN 1198 - 1204
73 Ibid PN 274 - 275 and 1219
74 Ibid PN 1220
75 Ibid PN 1222 - 1227
76 Ibid PN 1228 - 1230
77 Ibid PN 278 - 297 and Exhibit A3
78 Ibid PN 597 - 600, 606 and 622 - 626
79 Ibid PN 602 - 604 and 628 - 636
80 Ibid PN 605 - 620
81 Ibid PN 643 - 649
82 Ibid PN 303 - 312
83 Ibid PN 1232 - 1237
84 Ibid PN 314 - 317
85 Ibid PN 330 - 331 and 1238 - 1244
86 Ibid PN 332 and 1248 - 1250
87 Ibid PN 1251 - 1255
88 Ibid PN 1256 - 1259
89 Ibid PN 1260 - 1267
90 Ibid PN 1267 - 1280
91 Ibid PN 1281 - 1283 and 1574
92 Ibid PN 1284 - 1286
93 Ibid PN 332 - 334 and 1287 - 1289
94 Ibid PN 563 - 565 and 1290 - 1293
95 Ibid PN 566
96 Ibid PN 337 - 339 and 1497 and Exhibit R10 at Attachment LMB-15
97 Ibid PN 340 - 343 and 1579 - 1580 and ibid at Attachment LMB-16
98 Ibid PN 344 and 1581 - 1591
99 Ibid PN 352 - 353 and 1593 - 1595
100 Ibid PN 1595
101 Ibid PN 345 - 348
102 Ibid PN 1602 - 1611
103 Ibid PN 1612 - 1618
104 Ibid PN 1619 - 1631
105 Ibid PN 1632 - 1634 and 2402 - 2404
106 Ibid PN 1635 - 1637
107 Ibid PN 1638 - 1639
108 Ibid PN 1640 - 1643 and Exhibit R10 at attachment LMB-18
109 Ibid PN 315 - 319 and 1648 - 1657 and ibid at Attachment LMB-18
110 Ibid PN 320 - 323 and 1658 - 1659 and ibid at Attachment LMB-14
111 Ibid PN 324 and 1660 - 1661
112 Ibid PN 325 - 329
113 Ibid PN 588 - 592
114 Ibid PN 1662 - 1671
115 Ibid PN 1672 - 1677
116 Ibid PN 1678 - 1684
117 Ibid PN 1685 - 1694
118 Ibid PN 1695 - 1701
119 Ibid PN 1702 - 1705
120 Ibid PN 359 - 361, 1706 - 1712 and 1800
121 Ibid PN 1801 - 1803
122 Ibid PN 1804 - 1807
123 Ibid PN 1808 - 1819
124 Ibid PN 1820 - 1821
125 Ibid PN 1713 - 1717
126 Ibid PN 1718 - 1721
127 Ibid PN 1722 - 1733
128 Ibid PN 1734 - 1749
129 Ibid PN 355 - 364
130 Ibid PN 366 - 378 and 383 - 385
131 Ibid PN 386 and 1823 - 1828 and Exhibit R10 at Attachment LMB-19
132 Ibid PN 387 and 1829 - 1831
133 Ibid PN 1835
134 Ibid PN 389 - 390 and 1836 - 1837
135 Ibid PN 1837 - 1843
136 Ibid PN 393 - 398 and Attachment to Application for Unfair Dismissal Remedy
137 Ibid PN 1859 - 1862 and Exhibit R 10 at Attachment LMB-24
138 Ibid PN 1863 - 1864
139 Ibid PN 1870 - 1879 and Exhibit R 10 at Attachment LMB-25
140 Ibid PN 1880 - 1887
141 Ibid PN 1888 - 1896, 1900 - 1901 and 2018 - 2019
142 Ibid PN 1897 - 1907 and Exhibit R9 at Attachment DAH-2
143 Ibid PN 1545 - 1546 and Exhibit R3
144 Ibid PN 424 - 425 and 1909 - 1910
145 Ibid PN 435
146 Ibid PN 1575 - 1578
147 Ibid PN 464 and 1949
148 Ibid PN 444 and 452 - 454
149 Ibid PN 456 - 457
150 Ibid PN 458 - 461
151 Ibid PN 436 - 442, 1911 - 1913, 1936, 1938 - 1941, 2047 and 2126
152 Ibid PN 1937
153 Ibid PN 583 - 586
154 Ibid PN 587
155 Ibid PN 724 - 725 and 1573
156 Ibid PN 1951 - 1953
157 Ibid PN 1954 - 1960
158 Ibid PN 1961 and 1973 - 1974 and Exhibit R9 At Attachment DAH -3
159 Ibid PN 399 - 401, 1975 - 1977 and 2405 - 2409
160 Ibid PN 1979 - 1982
161 Ibid PN 2410 - 2411
162 Ibid PN 406 and 1983 - 1985
163 Ibid PN 399 - 413 and 446 - 451
164 Ibid PN 1986 - 1989 and 2036
165 Ibid PN 2032 and Exhibit R4
166 Ibid PN 2033 - 2044
167 Ibid PN 2074 - 2087
168 Ibid PN 19908 - 1993, 2016 and 2058
169 Ibid PN 1990 - 1993, 2016 and 2020 - 2022
170 Ibid PN 2023 - 2024 and 2029
171 Ibid PN 1994 - 2002 and 2128
172 Ibid PN 2129
173 Ibid PN 2127
174 Ibid PN 473 and 2004 - 2005
175 Ibid PN 473 - 476 and 2005
176 Ibid PN 2006
177 Ibid PN 2088 - 2092 and Exhibit R9 at Attachment DAH-4
178 Ibid PN 2093 - 2095 and Exhibit R10 at attachment LMB-27
179 Ibid PN 2096 - 2097 and exhibit R9 at Attachment DAH-6
180 Ibid PN 2098 - 2099 and ibid at Attachment DAH –4
181 Ibid PN 2100 - 2101, 2412 and 2414
182 Ibid PN 2101 - 2103 and 2109 - 2111
183 Ibid PN 2104 - 2108
184 Ibid PN 2112 and 2124
185 Ibid PN 534 and Exhibit R9 at Attachment DAH-6
186 Ibid PN 2132 - 2136
187 Ibid PN 523 - 527 and 2141 - 2142 and Attachment FAAA-H
188 Ibid PN 2143 - 2144
189 Ibid PN 523 - 531
190 Ibid PN 485 - 489 and 2147
191 Ibid PN 2148
192 Ibid PN 2149
193 Ibid PN 492 - 498, 537 - 540 and 2150 - 2159
194 Ibid PN 541 - 549 and 2161 - 2162 and Exhibit R9 at Attachment DAH-7
195 Ibid PN 2163 - 2164 and ibid at Attachment DAH-8
196 Ibid PN 551 - 552 and 572
197 Ibid PN 551 - 554
198 Ibid PN 2165 - 2176 and Exhibit A5
199 Ibid PN 2177 - 2179, 2193 and 2312 - 2313
200 Ibid PN 2194 - 2205 and 2314 - 2318
201 Ibid PN 2206
202 Ibid PN 2210 - 2211
203 Ibid PN 651 - 661
204 Ibid PN 662 - 669
205 Ibid PN 670 - 679
206 Ibid PN 681 - 687
207 Ibid PN 177 - 180
208 Ibid PN 2632 - 2643, 2720 and 2718 - 2722
209 Ibid PN 2724 - 2728, 2783 - 2787 and 2827 - 2828
210 Ibid PN 2644 - 2647, 2650 - 2651 and 2717
211 Ibid PN 2652 - 2655
212 Ibid PN 2648 - 2649 and 2656 - 2658
213 Ibid PN 2663 - 2664 and 2671
214 Ibid PN 2729 - 2732 and 2747 and Exhibit R7 at paragraphs 14 - 15
215 Ibid PN 2733 and 2740 - 2741
216 Ibid PN 2741, 2745 - 2746, 2748 and 2829 - 2830
217 Ibid PN 2749 - 2752 and 2831
218 Ibid PN 2753 - 2757 and 2832
219 Ibid PN 2489 - 2490, 2492 - 2498, 2567 - 2575 and 2833 - 2834 and Exhibit R5 at CEB-3
220 Ibid PN 2759 - 2772 and Exhibit R7 at paragraph 18 and ibid at Attachment CEB-3
221 Ibid PN 2766, 2773 - 2774, 2788 - 2789 and 2835
222 Ibid PN 2778 - 2782 and 3223 - 3224
223 Ibid PN 2841 - 2842 and 2884 - 2891
224 Ibid PN 2892 - 2901, 2909 and 2918 - 2920
225 Ibid PN 2892 - 2893, 2901 - 2902, 2908 - 2909, 2913 and 2915 - 2917
226 Ibid PN 2921 - 2924
227 Ibid PN 2925 - 2928
228 Ibid PN 2790, 2795, 2836 - 2838 and Exhibit R7 at Attachment CEB-5
229 Ibid PN 2499 - 2503, 2807 - 2809, 2839 and 2844 - 2845 and Exhibit R10 at Attachment LMB-01
230 Ibid PN 2810 - 2812
231 Ibid PN 2503
232 Ibid PN 2504
233 Ibid PN 2505 - 2512 and 2858 and Exhibit R10 at Attachment LMB-01
234 Ibid PN 2856 - 2857
235 Ibid PN 2854 - 2856
236 Ibid PN 2859
237 Ibid PN 2860 - 2865 and Exhibit R10 at Attachment LMB-01
238 Ibid PN 2869 - 2873
239 Ibid PN 2875
240 Ibid PN 2879 and 2929
241 Ibid PN 2930 - 2932
242 Ibid PN 2935
243 Ibid PN 2936 - 2939
244 Ibid PN 2880 - 2883
245 Ibid PN 2944 - 2950 and Exhibit R7 at paragraph 33
246 Ibid PN 2959 - 2962
247 Ibid PN 2963 and 2984
248 Ibid PN 2969 - 2973
249 Ibid PN 2974 - 2980
250 Ibid PN 2954 - 2958 and Exhibit R7 at paragraph 37
251 Ibid PN 2986 - 2987
252 Exhibit R7 at paragraphs 40 - 41
253 Transcript PN 3018 - 3057
254 Ibid PN 3058 - 3068
255 Ibid PN 3069 - 3082
256 Ibid PN 3079
257 Ibid PN 3071 - 3074
258 Ibid PN 2988 - 2991
259 Ibid PN 2992 - 2997 and 3010 - 3011
260 Ibid PN 2997 - 3002
261 Ibid PN 3087 - 3092 and Exhibit R11 at attachment LMB-16
262 Ibid PN 3100 - 3104
263 Ibid PN 2513 - 2531 and Exhibit FAAA at Attachment G
264 Ibid PN 3147 - 3151, 3169 - 3171and 3271
265 Ibid PN 3273
266 Ibid PN 2537 and 3152 - 3153
267 Ibid PN 2537
268 Ibid PN 3155 - 3158
269 Ibid PN 3159 - 3160
270 Ibid PN 3154 - 3180, 3201 and 3274 - 3276
271 Ibid PN 3202 - 3203 and Exhibit R7 at paragraph 49
272 Ibid PN 3207 - 3210
273 Ibid PN 3211 - 3212
274 Ibid PN 2532 - 2535 and exhibit FAAA at Attachment H
275 Exhibit R1
276 Transcript PN 2576 - 2603
277 Ibid PN 2609 - 2610 and 2615
278 Ibid PN 2616 - 2619
279 Ibid PN 2621 - 2624
280 Ibid PN 3181 - 3193
281 Ibid PN 3221 - 3222 and 3225 - 3230
282 Ibid PN 3231 - 3232
283 Ibid PN 3233 - 3239
284 Ibid PN 3240 - 3245
285 Ibid PN 3247 - 3255
286 Ibid PN 3332 - 3333 and 3337 - 3344 and Exhibit R8 at paragraph 8
287 Ibid PN 3347 - 3354
288 Ibid PN 3396 - 3400, 3406, 3416, 3554 - 3555 and 3562
289 Ibid PN 3365 - 3368
290 Ibid PN 3376 - 3382
291 Ibid PN 3738 - 3756
292 Ibid PN 3385 - 3395
293 Ibid PN 3434 and 3437 - 3444
294 Ibid PN 3365
295 Ibid PN 3419 - 3429, 3540 and 3774 - 3780
296 Ibid PN 3421 and 3541 - 3547
297 Ibid PN 3536 - 3539
298 Ibid PN 3611 - 3613
299 Ibid PN 3782 - 3798
300 Ibid PN 3798 - 3801
301 Ibid PN 3430 - 3432
302 Ibid PN 3584 - 3588 and 3624 - 3642 and Exhibit R8 at paragraph 23
303 Ibid PN 3591 - 3609
304 Ibid PN 3653 - 3660
305 Ibid PN 3657
306 Ibid PN 3667 - 3722 and 4530 - 4532 and Exhibit R8 at paragraph 25
307 Ibid PN 3818 - 3823 and Exhibit R10 at Attachment LMB-16
308 Ibid PN 3858 - 3866, 3883, 3886 - 3887, 4405, 4408 - 4411, 4508, 4513 and 4516
309 Ibid PN 3884 - 3885, 3889 - 3891 and 4043
310 Ibid PN 4416 - 4419
311 Ibid PN 3868 - 3881, 4037 - 4041 and 4504 - 4505
312 Ibid PN 4010 - 4022, 4026, 4028 and 4545 - 4547
313 Ibid PN 3939 - 3945
314 Ibid PN 3894 - 3915 and 3947 and Exhibit R10 at Attachment LMB-26
315 Ibid PN 4782 and 4792
316 Ibid PN 4798 and 4812
317 Ibid PN 4533 - 4539 and 4742 - 4745
318 Ibid PN 3948
319 Ibid PN 3757 - 3775 and 4548
320 Ibid PN 427
321 Ibid PN 3949 - 3986
322 Ibid PN 4420 - 4421 and 4435
323 Ibid PN 4423 - 4433 and 4436 - 4437
324 Ibid PN 4434
325 Ibid PN 4438, 4484, 4502 - 4503 and 4510 - 4512
326 Ibid PN 4029 - 4036 and 4046 - 4047 and Exhibit R8 at paragraph 59
327 Ibid PN 4048 - 4050, 4488 and 4551 - 4562
328 Ibid PN 4492 and 4495
329 Ibid PN 4496 - 4501, 4507, 4514 and 4523
330 Ibid PN 4051 - 4055
331 Ibid PN 4056 - 4067 and Exhibit R8 at paragraphs 62 - 63
332 Ibid PN 4140, 4151 - 4157, 4165 and 4566 - 4567
333 Ibid PN 4158 - 4160, 4167, 4568, 4578, 4581, 4585 - 4586 and 4871
334 Ibid PN 4169 - 4179 and 4569 - 4571
335 Ibid PN 4141 - 4150
336 Ibid PN 4068 - 4091 and 4137
337 Ibid PN 4096 - 4102
338 Ibid PN 4107 - 4114 and 4122
339 Ibid PN 4177 - 4121
340 Ibid PN 4123 - 4125
341 Ibid PN 4126 - 4127
342 Ibid PN 4128 - 4129
343 Ibid PN 4575 - 4577, 4579 - 4580, 4587 and 4579 - 4602
344 Ibid PN 4606 - 4650
345 Ibid PN 4131 - 4133 and 4651 - 4653 and Exhibit R10 at Attachment LMB-32
346 Ibid PN 4654 - 4660
347 Ibid PN 4661 - 4665
348 Ibid PN 4666 - 4679
349 Ibid PN 4680
350 Ibid PN 4681 - 4682, 4731 - 4735 and 4738 - 4740
351 Ibid PN 4737
352 Ibid PN 4754 - 4756 and Exhibit R9 at Attachment DAH-6
353 Ibid PN 4757 - 4789
354 Ibid PN 4769 - 4771
355 Ibid PN 3455 - 3462, 3524, 4345 - 4346 and 4352 and Exhibit R8 at paragraph 20
356 Ibid PN 4347 - 4349
357 Ibid PN 4351
358 Ibid 4352 - 4355
359 Ibid PN 4357 - 4360
360 Ibid PN 4293 - 4298, 4342 - 4343 and 4346 Exhibit R 11 at Attachment LMB-35
361 Ibid PN 3481 - 3498, 3615 and 3651
362 Ibid PN 3499 - 3507 and 3518
363 Ibid PN 3566 and 4528 - 4529
364 Ibid PN 5071 and Exhibit R10 at paragraph 10
365 Ibid PN 5072 - 5076, 5078, 5119 and 5193 - 5194 and ibid at paragraphs 15 - 17
366 Ibid PN 5077
367 Ibid PN 5091 - 5095
368 Ibid PN 5107 - 5112 and Exhibit R10 at paragraph 18
369 Ibid PN 5117 and 5128 and ibid at paragraph 19
370 Ibid PN 5118, 5124 and 5425
371 Ibid PN 5135 - 5136
372 Ibid PN 5119 - 5127
373 Ibid PN 5133 and 5138
374 Ibid PN 5147 - 5148
375 Ibid PN 5155 and Exhibit R7 at Attachment CEP-4
376 Ibid PN 5162
377 Ibid PN 5156, 5171 and 5173 - 5174
378 Ibid PN 5156 - 5157
379 Ibid PN 5176
380 Ibid PN 5180, 5195 and 5197 - 5198
381 Ibid PN 5195 - 5196
382 Ibid PN 5204 - 5206
383 Ibid PN 5207 - 5209
384 Ibid PN 5211
385 Ibid PN 5221 - 5223
386 Ibid PN 5224 - 5225 and 5244
387 Ibid PN 5259 - 5261
388 Ibid PN 5267 - 5268 and Exhibit A6
389 Ibid PN 5285 - 5287 and Exhibit R11 at paragraph 4
390 Ibid PN 5287 - 5288 and 5291
391 Ibid PN 5610 and Exhibit R11 at Attachment LMB-35
392 Ibid PN 5619 - 5622
393 Ibid PN 5629 - 5633
394 Ibid PN 5292 - 5293
395 Ibid PN 5295 - 5297
396 Ibid PN 5312 - 5314 and 5323 - 5325
397 Ibid PN 5315 - 5317, 5328 and 5340
398 Ibid PN 5341
399 Ibid PN 5349
400 Ibid PN 5368 - 5373
401 Ibid PN 5374 - 5379
402 Ibid PN 5382 - 5383
403 Ibid PN 5389
404 Ibid PN 5393 - 5398, 5403 - 5404 and 5410 - 5416 and Exhibit R10 at Attachment LMB-19
405 Ibid PN 5405 - 5407
406 Ibid PN 5408
407 Ibid PN 5421 - 5422
408 Ibid PN 5424
409 Ibid PN 5426 - 5429
410 Ibid PN 5430 - 5435
411 Ibid PN 5449 - 5453 and Exhibit R11 at Attachment LMB-25
412 Ibid PN 5453 - 5455
413 Ibid PN 5456 - 5461 and 5478
414 Ibid PN 5456 - 5467
415 Ibid PN 5470 - 5477
416 Exhibit R10 at Attachment LMB-26
417 Transcript PN 5030
418 Ibid PN 5031 - 5033
419 Ibid PN5506 - 5514
420 Ibid PN 5515 - 5520 and Exhibit R10 at Attachment LMB-26
421 Ibid PN 5515 - 5538
422 Ibid PN 5539 - 5541
423 Ibid PN 5034
424 Ibid PN 5542 - 5546
425 Ibid PN 5037 - 5041 and 5229
426 Ibid PN 5570 - 5573
427 Ibid PN 5574 - 5577, 5634 - 5639 and 5641
428 Ibid PN 5640
429 Ibid PN 5581 - 5586
430 Ibid PN 5815
431 Ibid PN 5557 - 5568 and 5662
432 Ibid PN 5051
433 Ibid PN 5052 - 5053
434 Ibid PN 5050
435 Ibid PN 5642 - 5647
436 Ibid PN 5648 - 5659
437 Ibid PN 5660 - 5661 and 5663
438 Ibid PN 5046 - 5048 and 5054 - 5055 and Exhibit R10 at Attachment LMB-31
439 Ibid PN 5049
440 Ibid PN 5664 - 5675 and Exhibit R10 at Attachment LMB-32
441 Ibid PN 5676 - 5681
442 Ibid PN 5682 - 5687
443 Ibid PN 5688 - 5689
444 Ibid PN 5695 - 5702 and 5706 - 5708
445 Ibid PN 5717 - 5720 and Exhibit R10 at Attachment LMB-32
446 Ibid PN 5721 and 5749 - 5759
447 Ibid PN 5765 - 5762, Exhibit R9 at Attachment at DAH-6 and Exhibit R10 at attachment LMB-32
448 Ibid PN 5733 - 5737 and ibid at Attachment DAH –6
449 Ibid PN 5749 - 5754 and ibid at Attachment DAH –6
450 Ibid PN 5772 - 5773
451 Ibid PN 5776 - 5779
452 Ibid PN 5780 - 5790
453 Ibid PN 5791 - 5792
454 Applicant’s closing submissions dated 29 June 2012 at paragraphs 27 - 28
455 Ibid at paragraph 28
456 Ibid at paragraph 29
457 Ibid at paragraph 30
458 Ibid at paragraph 31
459 Ibid at paragraph 33
460 Ibid at paragraph 35 and applicant’s submissions in response to respondent’s submissions, dated 5 September 2012, at
paragraph 32
461 Applicant’s submissions in response to respondent’s submissions, dated 5 September 2012, at paragraphs 32 and 41
462 Ibid at paragraph 35
463 Ibid at paragraph 36
464 Ibid at paragraphs 31 - 32 and 34 - 35
465 Ibid at paragraph 33 and 41
466 Ibid at paragraph 36
467 Ibid at paragraphs 37 - 38
468 Ibid at paragraph 40
469 Ibid at paragraph 41
470 Ibid
471 Respondent’s closing submissions, dated 9 August 2012, at paragraph 2 and Exhibit R6 at paragraph 7
472 Ibid at paragraph 3
473 Ibid at paragraphs 10 - 31
474 Print P16330, 26 July 1984, and ibid at paragraphs 32 - 33
475 Ibid at paragraph 50
476 Ibid at paragraphs 36 - 37
477 Ibid at paragraphs 49 and 52 and 54 - 56
478 Ibid at paragraph 53
479 Ibid at paragraph 40
480 Ibid at paragraphs 41 - 42
481 Ibid at paragraphs 44 - 45
482 Ibid at paragraph 43
483 Ibid at paragraph 47
484 Ibid at paragraph 48
485 Ibid at paragraph 57
486 Ibid at paragraph 39
487 Ibid at paragraph 61
488 Ibid at paragraph 62
489 Ibid at paragraph 71
490 Ibid at paragraph 64
491 Ibid at paragraph 67
492 Ibid at paragraphs 68 - 71
493 Ibid at paragraph 72
494 Ibid at paragraphs 75 - 78
495 Ibid at paragraphs 80 - 84
496 Ibid at paragraph 88
497 Ibid at paragraph 89
498 Ibid at paragraphs 90 - 93
499 Ibid at paragraphs 94 - 96
500 Ibid at paragraphs 97 - 98
501 Ibid at paragraphs 100, 102 - 103
502 Ibid at paragraph 104
503 Ibid at paragraph 106
504 Ibid at paragraphs 107 - 109
505 Ibid at paragraphs 110 - 114
506 Ibid at paragraphs 115 - 119
507 Ibid at paragraphs 120 - 121
508 Ibid at paragraphs 133 - 136
509 Ibid at paragraphs 137 - 138
510 Ibid at paragraphs 140 - 141
511 Ibid at paragraphs 144 - 145
512 Ibid at paragraphs 147 - 148
513 Ibid at paragraphs 149 - 150
514 Ibid at paragraphs 150 - 151
515 Ibid at paragraphs 152 - 155
516 Ibid at paragraphs 156 - 157
517 Ibid at paragraph 158
518 Ibid at paragraph 159 and 161
519 Ibid at paragraphs 162 - 164
520 Ibid at paragraphs 165 - 166
521 Ibid at paragraph 167
522 Exhibit R6 at paragraph 47
523 Exhibit R10 at Attachment LMB-32
524 Ibid
525 Transcript PN 4661 - 4682, 4731 - 4735, 4737 - 4740, 5676 - 5689, 5695 - 5702 and 5706 - 5708
526 Exhibit R7 at Attachment CEB-3
527 Ibid at Attachment CEB-5
528 Exhibit R10 at Attachment LMB-01
529 Ibid
530 Ibid at Attachment LMB-02
531 Attachment to Mr Taleski’s Application for Unfair Dismissal dated 24 October 2011
532 Ibid
533 Attachment FAAA-6 to Mr Taleski’s Application for Unfair Dismissal dated 24 October 2011
534 Exhibit R8 at Attachment DAH-1
535 Exhibit R4
536 Ibid
537 Exhibit R9 at Attachment DAH-6
538 Exhibit R10 at Attachment LMB-01
539 Ibid
540 Attachment FAAA-6 to Mr Taleski’s Application for Unfair Dismissal dated 24 October 2011
541 Transcript PN 5680 - 5681
542 Transcript PN 3245, 3752 and 3798
543 Ibid PN 4674 - 4679, 5687 and 5862 - 5863
544 Ibid PN 5682
545 Ibid PN 3243 - 3244 and 4492 - 4495
546 Exhibit R9 at Attachment DAH-6
547 Ibid at paragraphs 4 - 5
548 Transcript PN 1056 and 1059 - 1061.
549 Ibid PN 1679 and 1691 - 1693
550 Ibid PN 1694
551 Ibid PN 1709 - 1710 and 1801 - 1803
552 Ibid PN 1119 - 1120
553 Ibid PN 2004 - 2006
554 Ibid PN 2134 and Exhibit R9 at Attachment DAH-6
555 Ibid PN 4754 - 4756
556 Ibid PN 5758 - 5759
557 Ibid PN 5688 - 5689, 5697 - 5698 and 5708
558 Ibid PN 4731, 4735 and 4737
559 Ibid PN 3247 - 3256
560 Exhibit R10 at Attachment LMB-32
561 Ibid at Attachment LMB-30
562 Ibid
563 Ibid at Attachment LMB-32
564 Transcript PN 4568, 4578 and 4586
565 Exhibit R10 at Attachment LMB-29
566 Transcript PN 4067
567 Ibid PN 4604 - 4606 and Exhibit R8 at Attachment DAH-5
568 Ibid
569 Transcript PN 5566 - 5568 and 5662
570 Ibid PN 2162 and Exhibit R10 at Attachment LMB-31
571 Applicant’s closing submissions dated 29 June 2012 at paragraph 35 and the Applicant’s submissions in response to the respondent’s submissions dated 5 September 2012 at paragraphs 32 and 41
572 Exhibit R11 at Attachment LMB-35
573 PR533082
574 Ibid
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