Ms Gabriella Tassone v Virgin Australia Airlines Pty Ltd

[2012] FWA 3802

[2012] FWA 3802

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Gabriella Tassone
v
Virgin Australia Airlines Pty Ltd
(U2011/2431)

VICE PRESIDENT WATSON SYDNEY, 11 MAY 2012

Application for an unfair dismissal remedy - whether dismissal harsh, unjust or unreasonable - whether there was a valid reason for dismissal - whether conduct justified dismissal - Fair Work Act 2009 ss. 387, 394.

[1] This decision, edited from a decision on transcript on 27 April 2012, concerns an application for an unfair dismissal remedy by Ms Gabriella Tassone pursuant to s.394 of the Fair Work Act 2009. The application concerned the termination of Ms Tassone’s employment by Virgin Australia Airlines Pty Ltd (Virgin).

[2] At the hearing on 19, 20 and 27 April 2012, Ms Tassone was represented by Mr J.H. Pearce, of counsel and Virgin was represented by Mr T. Saunders, of counsel.

[3] Ms Tassone was dismissed from her employment by Virgin on 17 November 2011 by letter of that date on the ground of serious misconduct. The conduct in question is described in the evidence of Mr Taylor at various paragraphs. At paragraphs 15 to 17 of his statement, exhibit S4 in these proceedings, he says:

“15. Following the initial meetings with Gabriella, we found that Gabriella had made 10 free-of-charge bookings in the period from April 2010 to October 2011 for Maria Haralambopoulos (Maria), Theoni Haralambopoulos, Dennis Harris and Zaharias Haralambopoulos. Maria was a friend of Gabriella's and the other guests were Maria's family members. There were other changes identified in the investigation report, but these were not pursued, they were not seen as serious as the free-of-charge changes.

16. Gabriella had provided a benefit to her friends, a number of times, over an extended period of time. Those changes involved moving cheap flights to more expensive flights without charging the appropriate fees and depriving Virgin Australia of revenue.

17. Gabriella was in a supervisory role. Therefore Virgin Australia had high expectations of her, particularly in respect of integrity. Her actions breached Virgin Australia's policies and procedures and caused me to question her integrity.”

[4] Further, in his statement Mr Taylor described the conduct in more detail and addressed the outcome of the show cause investigation conducted by Virgin. It is not contested that the conduct of waiving the fare rules occurred on a number of occasions including the occasions relied on by Virgin. What is contested is whether the waiving of the fare rules was authorised or otherwise excusable, whether the practices engaged in by Ms Tassone were common practice within Virgin and whether the conduct amounted to a valid reason for termination.

[5] The critical issues appear to be whether there was a valid reason for the termination in all of the circumstances, whether there was an opportunity to respond to the reasons relating to the conduct and the overall question for determination in this application: whether the dismissal was harsh, unjust or unreasonable. I have considered all of the evidence and the submissions in this matter. In my view, the conclusions reached by Virgin that the conduct in question was in breach of its policies and procedures and was not otherwise excusable or authorised was a conclusion which was open to it and, in my view, amounted to a valid reason in the sense that it was sound, defensible and well founded.

[6] It is clear in all the circumstances, in my view, that Ms Tassone engaged in the conduct in order to provide a favour to a friend and that the result of this conduct provided her friend with a benefit by not being liable to pay additional fees and additional fares for changes in travel. The conduct thereby deprived Virgin of revenue that it would otherwise have obtained by application of the fare rules.

[7] I have considered the various matters raised by Ms Tassone as indicating her belief that the actions she took were authorised. I find that the actions were not authorised by the empowerment philosophy of Virgin, which does appear to have a narrow application and does not extend to these circumstances.

[8] I also do not believe that there is any other excuse or justification relating to the practices in existence with other Virgin employees or in any inadequacy of training or in any other operational circumstances, such as the circumstance of “go-showing” at relevant times.

[9] Significant attention in this matter was given to practices which exist within the airline. Those practices may be significant if they indicate that the conduct is condoned in some way, or it may indicate some unfairness if an employee is singled out for differential treatment. I do not find that any of those circumstances are present in this matter.

[10] As I have indicated, the ultimate task is to determine whether the termination was harsh, unjust or unreasonable. The Tribunal is required to form that judgment based on the factors articulated in s.387 of the Act. Those factors are significant because they provide guidance as to the appropriate standards to be applied in determining the ultimate question. The list is not exhaustive and other matters were raised beyond those set out in s.387 of the Act. As I have indicated, I have reached the conclusion that there was a valid reason for the dismissal relating to Ms Tassone's conduct. I also find that Ms Tassone was notified of that reason through the investigative process and the show cause process leading to the ultimate decision.

[11] By virtue of those processes, I also find that Ms Tassone was given an opportunity to respond to the reasons relating to her conduct and she made use of that opportunity in providing lengthy explanations and justifications for her conduct during the process. It does appear that none of the other specified factors apply in the circumstances of this matter. However, there are other matters which have been raised and to which I have had regard. They include the service record of Ms Tassone, which includes two promotions and positive performance reviews, and also submissions as to the seriousness of the conduct in all of the circumstances, issues of proportionality and issues of practices within Virgin which might bear more broadly on the question of valid reason itself.

[12] The considerations of whether a termination is harsh or unreasonable, in particular, do not involve the Tribunal determining what it would have done in the circumstances if it was in the shoes of management. It involves an overall judgment as to whether the decision to terminate fell outside the description of reasonableness or was harsh in the sense that a different disciplinary action should have been taken in all of the circumstances. I have considered all of the matters and I have considered the tests in the Act and have reached the conclusion that the termination was not harsh, unjust or unreasonable. In those circumstances, the application for an unfair dismissal remedy is dismissed.

VICE PRESIDENT WATSON

Appearances:

J. H. Pearce, of counsel, with B. O’Donnell for Ms Tassone.

T. Saunders, of counsel, with K. Lloyd for Virgin Australia Airlines Pty Ltd.

Hearing details:

2012.
Sydney.
April, 19, 20 and 27.

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