Virgin Australia International Airlines Pty Ltd T/A Virgin Australia v David Taleski
[2013] FWCFB 4191
•24 JULY 2013
[2013] FWCFB 4191 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
v
David Taleski
(C2013/2810)
SENIOR DEPUTY PRESIDENT ACTON | |
Appeal against decision [[2013] FWC 93] and order [PR533082] of Commissioner Cribb at Melbourne on 11 January 2013 in matter number U2011/12885.
Introduction
[1] Virgin Australia International Airlines Pty Ltd t/a Virgin Australia (Virgin) have appealed a decision 1 and order2 of Commissioner Cribb of 11 January 2013 in which the Commissioner found Mr David Taleski was unfairly dismissed by Virgin, ordered his reinstatement and continuity of service, and directed the parties to confer as to his lost remuneration.
Relevant background
[2] Mr Taleski was employed by Virgin as a flight attendant in 2008.
[3] In mid 2010 Mr Taleski started to grow his hair for what he maintained were religious reasons associated with the tenth anniversary of his mother’s death. Virgin allowed him to wear his hair in a neat bun temporarily, notwithstanding Virgin’s then grooming standards. In December 2010 Mr Taleski was told by Virgin that he was required to comply with its grooming standards. This necessitated Mr Taleski having his hair cut short into a men’s business style haircut. In January 2011 Mr Taleski raised medical reasons for keeping his hair longer, producing a medical certificate from a Dr David Spencer dated 18 January 2011 which stated:
“This is to certify that
Mr David Taleski… attended this clinic for an appointment. As part of his treatment I have suggested he try to keep his hair longer.
[Signed]
Dr. David Spencer”.
[4] In February 2011, Virgin introduced the “Look Book”. Mr Taleski was subject to it.
[5] The “Look Book” is Virgin’s guide to uniform and personal styling. The styling is intended to convey a more sophisticated and professional image for the airline and ensure the airline consistently surpasses its guests’ expectations. The “Look Book” advises that Virgin expects the grooming of those covered by it to be spot on at all times. The male guidelines in the “Look Book” provide that male hair is to be a business appropriate style haircut only, be no longer than collar length and when styled should not exceed four centimetres in height. The general guidelines in the “Look Book” in respect of hair provide as follows:
“hair
A groomed appearance is topped off with hair that is clean, neat and well presented. Working with guests from the corporate world as well as the leisure market, it is essential to create a look suitable for the business environment.
tips to achieve this look
● Hair should be trimmed regularly
● Styled in a way to flatter facial features
● May have highlights as long as they do not differ too much from your natural hair colour
● Should be well kept to reduce visible re-growth from a tint or highlights
● Bobby pins should be kept to a minimum and blend with your hair colour
● Hairspray should be used to tame stray hairs
● You must ensure all accessories are clean and in good condition
hair don’ts
● Must not be loose or fall in the eyes
● Must not be worn with clamps/crocodile clips
● Must not be dyed to extreme colours or have extreme colour differences
● Must not have visible hair extensions
● Black scarves or bows are not permitted
● Rubber bands must not be worn
● Limit use of hair product to avoid giving the appearance of a wet or greasy look”. 3
[6] The male guidelines state the following in respect of hair:
“hair
male hair
● Business appropriate style haircuts only● No longer than collar length
● Sideburns must not be lower than the earlobes or wider than two centimetres
● When styled, your hair height should not exceed four centimetres”. 4
[7] Throughout February and March 2011, Mr Taleski was told by Virgin that his hair needed to comply with the “Look Book”. Mr Taleski refused to cut his hair so as to comply or give Virgin information about the religious or medical reasons preventing him from cutting his hair. On 7 April 2011 Mr Taleski was taken off flying duties “subject to operational clearance” due to his on-going non-compliance with the “Look Book”. Subsequently Mr Taleski provided Virgin with medical certificates from various medical practitioners which Virgin regarded as inadequate.
[8] On 19 April 2011 Mr Taleski provided Virgin with a medical certificate from Dr Nanette Presswell which stated:
“Re: Mr David Taleski…
The above mentioned patient has had a mental health plan today and has been referred to Mr Michael McGartland psychologist for counselling.
I consider he is fit for work at this stage.
[Signed]
Dr. Nanette Presswell, MBBS-FRACGP”.
[9] On 29 April 2011 Mr Michael McGartland, a Clinical and Counselling Psychologist, provided the following medical certificate in respect of Mr Taleski:
“TO WHOM IT MAY CONCERN
Re: David TALESKI, [Address]
Mr Taleski was referred by his General Practitioner, Dr Nanette Presswell, and I saw him for the first time today. Central in the issues discussed was Mr Taleski’s anxiety about having his hair cut. In future sessions I plan to gain a greater understanding of Mr Taleski and his issues and formulate a treatment plan.
Yours sincerely,
[Signed]
Michael McGartland”.
[10] In early May 2011, Mr Taleski attempted to style his long hair so as to comply with the “Look Book”. However, Virgin regarded the resultant hairstyle as non-compliant. Nonetheless, they agreed to Mr Taleski wearing a wig at least as a temporary measure. Mr Taleski subsequently had a hair transplant procedure. On 11 May 2011 Mr Taleski made a complaint under Virgin’s Keeping Our Workplace Fair (KOWF) Policy. In early June 2011 when Mr Taleski advised Virgin that his position on becoming compliant with the “Look Book” was never going to change, Virgin advised him of his dismissal on four weeks’ notice, unless he became compliant with the “Look Book” in that period. Mr Taleski subsequently filed a complaint with the Human Rights and Equal Opportunities Commission (HREOC). On 3 August 2011 HREOC conducted a conciliation conference on the complaint. Virgin agreed to Mr Taleski wearing a wig while on flying duties, at least as a temporary measure. On or around 9 August 2011 Mr Taleski returned to flying duties for Virgin wearing the wig.
[11] On 1 September 2011 Mr McGartland provided the following medical certificate in respect of Mr Taleski:
“TO WHOM IT MAY CONCERN
V Australia
Re: David TALESKI, [Address]
I have seen Mr Taleski on four occasions in April, May, August and today. Mr Taleski describes symptoms of Body Dysmorphic Disorder. These tend to be fairly complex and successful treatment may take a considerable period of time. I note that Mr Taleski is keen to work and to fly and that he has endeavoured to comply to the best of his ability with all requests regarding dress codes. As part of an agreement he wears his hair under a wig on flights. This is causing Mr Taleski difficulty in terms of physical discomfort, dealing with responses of other staff members and his self-concept. While treatment is progressing the ideal situation for Mr Taleski would be to allow him to wear his hair neatly tied back.
Yours faithfully,
[Signed]
Michael McGartland”.
[12] On 30 September 2011 Mr Dave Henning, Manager Cabin Crew Sydney for Virgin, sent an email to Mr Taleski as follows:
“Subject: Confirmation of meeting
Dear David,
I hope that you are well?
I wanted to confirm our meeting next week on Tuesday 4th October 2011 with a start time of 3pm…
There are two reasons for arranging this meeting…
The other reason to meet with you is to ascertain if we can support you in becoming compliant to our grooming regulations and to seek confirmation from your Doctor of your diagnosis and current medical condition. The attached letter will give you more detail and our requirements.
It is really important that we start to move forward with this David and we would also require a treatment plan and timelines from your Doctor to determine if we are able make any reasonable adjustments for you.
We both look forward to seeing you next week.
Take care
Dave”.
[13] The letter attached to that email was as follows:
“Dear David,
I wanted to write to give you an update on our position, and to clarify a few of the requirements that we have asked for, and have yet to receive in assisting you in your desire to be compliant to our groom regulations at Virgin Australia.
What we require David are the following to enable us to make a decision on how we can work and move forward with you:
● Confirmation from your Doctor with a diagnosis of your medical condition (to date we have not received confirmation of this, only that you present yourself to medical professionals with symptoms referring to this)
● A treatment & progress plan that shows us set timelines towards you becoming compliant. This is important to us to ascertain how we can best support you in becoming compliant.
Would you please to provide this information to me by the 3 October 2011. Once we have received this information we will arrange a further meeting with you to look at the next steps.
Whilst wearing your wig has been agreed to as an interim measure, we need to establish a plan to have you meet the grooming guidelines on a permanent basis. The provision of this document will allow us to work with you to establish this plan.
Please don’t hesitate to contact me if you have any questions or seek further clarification on any of the contents of this letter.
Warm regards
Dave Henning
Manager Cabin Crew, Sydney”.
[14] Following the meeting between Mr Taleski and Virgin on 4 October 2011, Mr Henning sent an email to Mr Taleski on 10 October 2011 as follows:
“Dear David,
It was good to see you last Tuesday with Christie to catch up on your CL feedback session and to get an update from you on how you are progressing towards your compliance to our grooming regulations…
We also talked in some detail about how you are feeling at work with the current temporary arrangement to assist you towards becoming compliant of wearing a wig. You expressed that you were finding this more difficult as time progressed. You asked if you could be allowed to wear you hair in a ponytail style whilst you are receiving ongoing treatment from your nominated psychologist. As we have advised on previous occasions, we are unable to accommodate this request.
You informed us that you were seeing your psychologist on the 14 October and at this meeting you would request a copy of your treatment plan along with a diagnosis of your current situation.
We require this David so we are able to see what time frames we are working towards with you and to see if we are able to make any reasonable adjustments to assist you in becoming complaint on a permanent basis.
Once you have this documentation could I ask you please to email/scan this to Christie and I so we can review. We can then arrange a further meeting with you to look at the next steps for you. We are happy to come to MEL for this meeting.
We look forward to seeing you soon.
Take care
Dave”.
[15] On 11 October 2011 Mr Taleski sent the following email to Mr Henning:
“Subject: FW: Grooming
Hi Dave,
The situation worth the wig is getting worse, I am not sure how much more abuse I can take. It’s getting harder and harder to pretend onboard that it isn’t affecting me as I have explained in the past.
By deliberately going against the psychologist’s recommendations I feel you are contributing to the anxiety.
I would also like to bring up the letter I was harassed into writing and signing during the conciliation, you had agreed to the content of that letter but are now going against it.
I am seeing the psychologist on the 13th, and would like to see you soon after.
I would like to have a meeting on the 20th or 24th to discuss further.
Regards,
David”.
[16] On 13 October 2011 Mr McGartland provided the following medical certificate in respect of Mr Taleski:
“TO WHOM IT MAY CONCERN
V Australia
Re: David TALESKI [Address]
I saw Mr Taleski again today to further consider his concerns about his appearance and especially his hair. After much discussion it was thought that Mr Taleski may make better progress with another therapist. Mr Taleski is now exploring this option.
Yours faithfully,
[Signed]
Michael McGartland”.
[17] On 18 October 2011 Mr Henning sent the following email to Mr Taleski:
“Subject: Meeting Thursday 20th October
Dear David,
You are requested to attend a formal meeting with Lauren Bates Specialist Advisor People Team and Myself on Thursday 20th October at 2pm…
This meeting has been planned to assess and review your compliance to our grooming regulations along with providing an outcome regarding your ability to be compliant to our grooming regulations.
As this is a formal meeting you are entitled to bring along a support person along with you.
Best Regards
Dave”.
[18] On 20 October 2011 Mr Taleski attended a meeting with Virgin at which he was given until 24 October 2011 to respond to Virgin’s preliminary decision to dismiss him. Mr Henning subsequently sent the following email to Mr Taleski:
“Dear David,
In June this year you were advised of termination of your employment, this was rescinded and the requirements were clearly outlined to you around what you needed to do to meet the requirements of your role.
Since that time you have failed to deliver on those expectations and as discussed in our meeting today we have reached a preliminary decision to terminate you employment on the basis of:
● you have not complied with reasonable management direction in relation to the provision of documentation as requested
● have not demonstrated an intent to comply with the stated requirements of your role,
● and have displayed an unwillingness to accept business process and decisions surrounding this and other matter
In relation to your request for an extension of 48 hours, you have until Monday 24th October at 11am to respond to our preliminary decision. If we do not hear from you by this time your termination will become effective from this date.
Best Regards
Dave”.
[19] On 24 October 2011 Mr Taleski responded as follows:
“Mr Dave Henning
Manager, Cabin Crew VAustralia…
24 October 2011
Re: Termination of Employment - response
Dear Dave,
1. Thank you for the opportunity to show cause as to why my employment should not be terminated effective 24 October 2011. I also thank you for meeting on Thursday 20 October with Lauren Bates from the People Team and Jason Hart from the FAAA.
2. I am passionate about my employment with Virgin Australia. I want nothing more than to continue flying with the business. To this extent, I am eager to find a solution to the problems that I have disclosed to the business in relation to my body dismorphia disorder.
3. In order to comply with the business’s grooming standards as outlined in the ‘Look Book’, I have been wearing a wig. I am prepared to continue wearing this wig whilst undergoing treatment for my mental health issues.
4. It is my understanding that in a separate meeting on 20 October 2011, between yourself, Lauren Bates and Jason Hart, you confirmed that the style of the wig worn complies with the company’s grooming requirements.
Medical documentation
5. To date, I have seen Dr Michael McGartland on 1 September 2011 and have been subsequently referred to a clinical psychiatrist Prof David Castle at St Vincents in Melbourne. My GP Nannette Presswell has contacted the hospital with her refferral. I am awaiting their contact for an appointment. My understanding is an appointment to be available in January.
6. I undertake to continue receiving counselling on a regular basis to achieve two main outcomes. First to achieve a clinical diagnosis in relation to my condition and to provide the business with this information. Second, to continue therapy in order to continue treatment of my condition.
7. I have attached to this response the folio of medical certificates that I have submitted to the business which seek to explain the complex medical problems associated with my condition.
8. I am awaiting a letter from r McGartland froom our appointment on the 13th of October. I have followed up with him on this however am in the process of waiting for the letter in the mail…
Summary
14. I agree to continue wearing a wig which complies with the grooming standards.
15. I will provide the company with a clinical assessment and diagnosis.
16. I will continue to undergo treatment for my mental health issues.
17. I withdraw my statements in relation to wearing the wig impacting on my mental health.
18. I will comply with the company’s direction in relation to escalating grievances and other matters in the future through the appropriate and correct channels.
Yours faithfully,
[Signed]
David Taleski”.
[20] Virgin subsequently sent a letter of termination to Mr Taleski as follows:
“24 October 2011
David Taleski
Dear David
Re Termination of Employment
You attended a meeting on Thursday 20th of October with myself and Lauren Bates (Specialist People Advisor). Jason Hart of the FAAA attended as your representative.
The purpose of this meeting was to discuss the outcome of the temporary arrangement put in place to assist you to comply with your role requirements, and to discuss your progress regarding meeting the requirements of your role over the last 6 months.
In June this year you were advised of termination of your employment. This was rescinded to enable you an opportunity to demonstrate your intent to become compliant and provide us with the necessary information so that we could assist you.
Since that time you have failed to deliver on those expectations and as discussed a preliminary decision was reached to terminate your employment on the basis that:
● You have not complied with reasonable management direction in relation to the provision of documentation as requested;
● You have not demonstrated an intent to comply with the stated requirements of your role; and
● You have displayed an unwillingness to accept business process and decisions surrounding this and other matters.
We advised you that you had an opportunity to provide a response (and any further relevant information) prior to us finalising our decision in relation to your ongoing employment. I have received your correspondence today and have considered the following in response to the points you have raised:
● The option of wearing the wig was agreed as a temporary measure only while you supplied the necessary documentation for me to support you to become compliant. You did not comply with this requirement;
● I am concerned that you are now able to ‘withdraw the statements in relation to wearing the wig and its impacts upon your mental health’. In addition, we remain unable to agree on a permanent solution;
● The clinical assessment and diagnosis that you state you will now supply has been requested of you for several months; and
● Immediately following our meeting where we raised concerns about your ability to follow the correct grievance process, you entered into correspondence with John Borghetti on Friday 21st October.
David, after considering the responses that you have provided, I have come to the conclusion to terminate your employment as a cabin crew member.
The termination of your employment will take effect from today’s date and you will be paid out 4 weeks in lieu of notice and all accrued entitlements upon return of all company property.
As discussed, it is our intention to provide you with a short outplacement programme to assist you in your external job search. Lauren Bates will email you the details of the outplacement programme this week.
Yours sincerely
[Signed]
Dave Henning”.
Commissioner’s decision
[21] The Commissioner decided Mr Taleski had been dismissed, his unfair dismissal remedy application was made within the requisite period and Mr Taleski was protected from unfair dismissal. The Commissioner also decided that whether Mr Taleski’s dismissal was consistent with the Small Business Fair Dismissal Code and whether the dismissal was a case of genuine redundancy were not relevant to the application. She then turned to whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Fair Work Act 2009 (Cth) (FW Act) provides in this respect as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[22] In respect of whether there was a valid reason for Mr Taleski’s dismissal, the Commissioner set out the three reasons given by Virgin to Mr Taleski for his dismissal as set out in the letter of termination. Those three reasons were that he had:
● not complied with reasonable management direction in relation to the provision of documentation as requested;
● not demonstrated an intent to comply with the stated requirements of his role; and
● displayed an unwillingness to accept business process and decisions surrounding that and other matters.
[23] The Commissioner then turned to consider each of those reasons.
[24] With respect to the reason concerning Mr Taleski’s failure to comply with the requested documentation, the Commissioner said:
“[360] It was not in contention between the parties that Virgin Australia had asked Mr Taleski to provide further medical information regarding his medical condition. Where the parties differed was whether the medical certificates contained the information that the company had requested…
[374] I have carefully considered all of the material before me and I have formed the view that the medical certificates dated 12 April 2011, 19 April 2011, 29 April 2011, 19 July 2011 and 1 September 2011 provide the information that was being sought by Virgin Australia. There are two medical certificates (12 April 2011 and 19 July 2011) from Dr Presswell, a medical practitioner, which state that Mr Taleski was receiving management ‘regarding a body image disorder relating to the length of his hair.’ They both also indicate that Mr Taleski is being referred to a psychologist and Dr Presswell’s medical certificate dated 19 April 2011 stated that mental health plan had been developed that day and that Mr Taleski had been referred to Mr McGartland, the psychologist, for counselling. What then followed, on 29 April 2011, was a certificate from Mr McGartland which indicated that he had seen Mr Taleski for the first time that day. Central to the issues discussed was said to be Mr Taleski’s anxiety about having his hair cut. The certificate stated that, in future sessions, he would formulate a treatment plan.
[375] Mr McGartland’s certificate of 1 September 2011 stated that Mr Taleski was describing symptoms of BDD and that, as this was complex, successful treatment may take a considerable period of time. In this regard, Ms Bates’ evidence is noted where she indicated that, at the time of Mr Taleski’s dismissal, she was not aware of the certificate from Mr McGartland dated 1 September 2011. She agreed that, in hindsight, this certificate complied with the company’s requirement to provide additional medical information.
[376] Therefore, looking at all of the medical certificates, it is my view that it was to be understood, from the medical information that had been provided, that Mr Taleski was receiving management regarding a body image disorder; that the body image disorder related to the length of his hair and that he had anxiety about cutting his hair. Further, it was to be understood that, as part of Mr Taleski’s treatment, his Doctor referred him to a psychologist and developed a mental health plan, that the psychologist was going to develop a treatment plan and that the psychologist’s assessment was that successful treatment may take a considerable period of time.
[377] Accordingly, I find that Mr Taleski, through these medical certificates, did provide Virgin Australia with a diagnosis, a link between his medical condition and not being able to cut his hair, that a treatment plan would be developed and a timeframe for successful treatment of ‘a considerable period of time’.”
[25] In regard to the failure to demonstrate an intent to comply with the requirements of his role, the Commissioner said:
“[384] This reason for Mr Taleski’s dismissal concerns Virgin Australia’s judgement that Mr Taleski had not demonstrated an intent to comply with the Look Book ie. become compliant. From the company’s point of view, compliance for Mr Taleski meant being ‘naturally’ compliant with the Look Book ie. without wearing a wig. The practical effect of this was that Mr Taleski would need to get his hair cut as it was longer than was permitted by the Look Book…
[394] Was Mr Taleski intending to comply with the Look Book? On the basis of the evidence before me, it seems that he was, to the best of his ability, within the constraints of a medical condition (BDD) which was linked to the length of his hair. There were a number of issues running concurrently for Mr Taleski which may have contributed to his managers’ view that he was not intending to comply with the Look Book (by cutting his hair). It is not disputed that Mr Taleski has said that he would not cut his hair and that he would not/could not comply with the grooming regulations. However, these statements need to be taken in context. By this stage, Mr Taleski had made complaint under the KOWF policy and to HREOC that he was being treated differently from other employees who were non compliant but who were still flying. He had been made SOC on 7 April 2011 and did not recommence flying until after the HREOC conciliation conference on 3 August 2011. He had been terminated by the company on 1 June 2011 with four weeks’ notice which was subsequently rescinded. His medical practitioners were recommending to Virgin Australia that he be allowed to wear his hair longer which had not been accepted by the company. Further, it was Mr Taleski’s evidence that he felt very uncomfortable disclosing to/talking to the company about his BDD.
[395] On the other hand, Virgin Australia was legitimately seeking medical information which would allow it to understand the nature of Mr Taleski’s medical condition (what it was) and how it was linked to his inability to cut his hair. Further, the company needed to have a prognosis regarding his condition - will it resolve? If so, how long will it take (treatment plan)? This would allow consideration of any possible adjustments. If it was not going to resolve, redeployment to a non uniform role would need to be considered. Mr Taleski’s evidence where he stated that he had asked his Doctors not to provide certain information to Virgin Australia is noted. However, it is accepted that Mr Taleski felt genuinely uncomfortable about revealing the nature of his disorder and discussing it, even with his Doctors.
[396] Taking all of this into account, I find that, to the best of his ability and within the framework of a body image disorder relating to the length of his hair Mr Taleski’s intention was to comply with the Look Book. He made several attempts to do this by exploring options which did not require him cutting his hair. These included trying different hairstyles and wearing a wig.”
[26] In respect of the display of an unwillingness to accept business process and surrounding decisions and other matters, the Commissioner said:
“[400] I have considered all of the material before me and I find that Mr Taleski did not always follow the proper process (the escalation process) when he had a dispute with the company over an issue. It is acknowledged that he utilised the KOWF policy appropriately but then went outside that in terms of appealing the decision. Therefore, Mr Taleski’s approach could not be wholly described as one of acting within the business process (the escalation policy) or accepting decisions made as a result of these processes.”
[27] The Commissioner then summarised her position on valid reason as follows:
“Summary
[401] With respect to the three reasons for Mr Taleski’s dismissal, I have found that Mr Taleski did provide the medical information that the company required; that his intention was to comply with the Look Book and that he showed an unwillingness to follow business process and accept the resultant decisions. Although I have found that Mr Taleski exhibited an unwillingness to follow business process and accept business decisions, I do not find that, on its own, it constitutes a valid reason for Mr Taleski’s dismissal. It should be noted that this finding should not be taken to mean that not following the proper business processes is condoned.
[402] Therefore, I am not satisfied that there was a valid reason for Mr Taleski’s dismissal.”
[28] In respect of whether Mr Taleski was given an opportunity to respond to any valid reason for his dismissal related to his capacity or conduct, the Commissioner said:
“[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.”
[29] On whether there were any other matters the Commissioner considered relevant to whether Mr Taleski’s dismissal was harsh, unjust or unreasonable, the Commissioner said:
“[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. 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.”
[30] The Commissioner concluded on whether Mr Taleski’s dismissal was harsh, unjust or unreasonable as follows:
“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 [sic] 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.”
[31] In respect of remedy, the Commissioner said:
“[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….
[428] Having considered all of the material before me and all of the circumstances of this case, I have decided to issue an order 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 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.”
[32] We will now turn to consider the grounds of appeal advanced by Virgin. The appeal is opposed by Mr Taleski.
Consideration of the grounds of appeal
(a) Valid reason
[33] Virgin submitted the Commissioner erred in failing to be satisfied there was a valid reason for Mr Taleski’s dismissal. The alleged errors were:
(i) her finding that the medical certificates provided by Mr Taleski contained the information sought by Virgin;
(ii) her failure to find there was a valid reason for Mr Taleski’s dismissal constituted by his conduct in failing to comply with reasonable management directions of Virgin to provide information and documents supporting his purported reasons for not cutting his hair in compliance with Virgin’s “Look Book”;
(iii) her failure to find that Mr Taleski’s failure to comply with Virgin’s “Look Book” and refusal of Virgin’s reasonable directions to comply with its “Look Book” constituted a valid reason for his dismissal;
(iv) her finding that Mr Taleski had a subjective intention to comply with the “Look Book”; and
(v) her failure to find Mr Taleski’s conduct in failing to comply with reasonable management directions and company policies for the raising of internal grievances constituted a valid reason for his dismissal.
[34] We are not persuaded the Commissioner erred in failing to be satisfied there was a valid reason for Mr Taleski’s dismissal. We deal with each of the alleged errors in turn.
[35] Firstly, in respect of her finding about the medical certificates, contrary to the suggestion of Virgin, the Commissioner did not find that the medical certificates provided by Mr Taleski contained the information sought by Virgin. The Commissioner found, in summary, that “Mr Taleski did provide the medical information that the company required”. That summary finding was based on her earlier findings that “Mr Taleski, through these medical certificates, did provide Virgin Australia with a diagnosis, a link between his medical condition and not being able to cut his hair, that a treatment plan would be developed and a timeframe for successful treatment of ‘a considerable period of time’.” Those earlier findings were reasonably open to the Commissioner from the medical certificates of Mr McGartland, Mr Taleski’s psychologist, of 29 April 2011, 1 September 2011 and 13 October 2011. Virgin sanctioned medical certificates from Mr Taleski’s psychologist in its email to Mr Taleski of 10 October 2011. It is apparent from these earlier findings that the Commissioner differentiated between the information the company “required” and the information it “sought”. The Commissioner seems to have recognised a difference between what Virgin needed in the circumstances and what they sought.
[36] With respect to the Commissioner’s earlier findings being reasonably open to her, the statement in the medical certificate of 1 September 2011 that “Mr Taleski describes symptoms of Body Dysmorphic Disorder” can reasonably be regarded as a diagnosis, as the medical certificate then goes on to discuss treatment.
[37] The Commissioner’s finding that through the medical certificates Mr Taleski did provide Virgin with “a diagnosis” and “a link between his medical condition and not being able to cut his hair” is reasonably open from the medical certificates of 29 April 2011 and 1 September 2011. It is tantamount to a finding that the medical certificates provided a diagnosis that Mr Taleski was, by reason of his medical condition, unable to cut his hair in a manner which complied with the “Look Book”.
[38] Further, and again in respect of the Commissioner’s earlier findings, it is implicit from the Commissioner’s finding that “a treatment plan would be developed” that the Commissioner recognised the treatment plan sought by Virgin had not been provided.
[39] We are not persuaded the Commissioner erred in failing to regard the non-provision of the treatment plan as a valid reason for Mr Taleski’s dismissal. This is particularly so in circumstances where Mr Taleski was unable to cut his hair so that it complied with the guidelines in the “Look Book” because of his disability of body dysmorphic disorder. And in circumstances where the objectives of those guidelines could be achieved by other means such as the wearing of a wig, as Virgin had allowed Mr Taleski to do for a period and, immediately before his dismissal, Mr Taleski had indicated to Virgin he was willing to continue to do. Compliance with the hair guidelines in the “Look Book” not being an inherent requirement of Mr Taleski’s role.
[40] Moreover, on 10 October 2011 Virgin had advised Mr Taleski that it needed his treatment plan to ascertain the timeframes involved and whether they were able to make any reasonable adjustments to assist him in becoming compliant on a permanent basis with the “Look Book”. However, Virgin had been informed on 1 September 2011 by Mr Taleski’s psychologist that successful treatment of Mr Taleski’s disability “may take a considerable period of time” and that during his treatment the ideal situation would be for Mr Taleski to be allowed “to wear his hair neatly tied back”, rather than wearing his hair under a wig as he was doing. In addition, on 24 October 2011 Mr Taleski advised Virgin that he was awaiting an appointment with a psychiatrist.
[41] For these reasons we do not accept Virgin’s submission that the Commissioner erred in finding that the medical certificates provided by Mr Taleski contained the information sought by Virgin.
[42] With respect to the second alleged error of the Commissioner, it follows from what we have said on the first alleged error that we are not persuaded the Commissioner erred in failing to find a valid reason for Mr Taleski’s dismissal constituted by his conduct in failing to comply with reasonable management directions to provide information and documents supporting his reasons for not cutting his hair. Mr Taleski, as the Commissioner found, had provided the required information and documents to Virgin.
[43] With respect to the third alleged error, we are not persuaded the Commissioner erred in failing to find that Mr Taleski’s failure to comply with Virgin’s “Look Book” and refusal of Virgin’s reasonable directions to comply with its “Look Book” constituted a valid reason for his dismissal, given Mr Taleski’s disability and the objectives of the guidelines in the “Look Book” could be achieved by other means such as his wearing of a wig.
[44] With respect to the fourth alleged error, Virgin maintained that one of the reasons for Mr Taleski’s dismissal which was given by it in its letter of termination, namely that Mr Taleski had not demonstrated an intent to comply with the stated requirement of his role, was clearly intended to refer to Mr Taleski’s ongoing failure and refusal to comply with Virgin’s lawful and reasonable directions to comply with the “Look Book”. We have just indicated that we are not persuaded the Commissioner erred in failing to find that to be a valid reason for Mr Taleski’s dismissal.
[45] In considering this reason for Mr Taleski’s dismissal, as given by Virgin in its letter of termination, the Commissioner considered and found that “to the best of his ability and within the framework of a body image disorder relating to the length of his hair Mr Taleski’s intention was to comply with the “Look Book”. Virgin submitted the Commissioner erred in making this finding on the basis of relevancy and it being logically inconsistent. We are not persuaded any error by the Commissioner in this regard is of consequence. This is because the Commissioner’s finding in respect of this reason did not result in her finding the reason to be a valid reason, and we have already indicated that we are not persuaded the Commissioner erred in failing to find this reason to be a valid reason for Mr Taleski’s dismissal.
[46] With respect to the fifth alleged error, the Commissioner’s finding to the effect that on its own Mr Taleski’s unwillingness in respect of following business process and accepting business decisions did not constitute a valid reason for Mr Taleski’s dismissal was reasonably open on the evidence. As was her failure to find that Mr Taleski’s conduct in failing to comply with reasonable management directions and certain company policies constituted a valid reason. This is particularly so having regard to Mr Taleski’s response to Virgin on 24 October 2011. We concur with the Commissioner in this regard.
(b) Opportunity to respond
[47] Virgin submitted the Commissioner also erred in finding that Mr Taleski was not provided with an opportunity to respond to the valid reason for his dismissal on the basis that the decision to dismiss him was made by Virgin on 18 October 2011 prior to Virgin putting allegations to him and before he had an opportunity to respond.
[48] We are not persuaded any error made by the Commissioner in this regard is of consequence to her determination that Mr Taleski’s dismissal was harsh, unjust or unreasonable, given there was no valid reason for Mr Taleski’s dismissal.
[49] In Chubb Security Australia Pty Ltd v John Thomas, 5 a Full Bench of the Australian Industrial Relations Commission said in respect of ss.170CG(3)(b) and (3)(c) of the Workplace Relations Act 1996 (Cth), which were relevantly similar to ss.387(b) and (c) of the FW Act, as follows:
“[41] Further, it is not, we think, possible to have regard to s.170CG(3)(b) until a finding has been made with regard to s.170CG(3)(a). Section 170CG(3)(b) refers to "that reason"; that is "a valid reason", being the term used in s.170CG(3)(a). If there is no valid reason, s.170CG(3)(b) has no application. Neither, we think, has s.170CG(3)(c).”
[50] We concur with the decision in Chubb in that regard.
(c) Other relevant matters
[51] Virgin further submitted that the Commissioner erred in having regard to Virgin’s treatment of Employee X compared to its treatment of Mr Taleski, the “severe distress” Mr Taleski would suffer if required to cut his hair to comply with the “Look Book” and recommendations from Mr Taleski’s treating practitioners that he be allowed to keep his hair long, as other relevant matters to her determination of whether Mr Taleski’s dismissal was harsh, unjust or unreasonable.
Again we are not persuaded any error made by the Commissioner in this regard is of consequence to her determination that Mr Taleski’s dismissal was harsh, unjust or unreasonable. In the absence of having regard to these other relevant matters, in the proper exercise of her discretion the Commissioner would still have had to have found Mr Taleski’s dismissal was harsh, unjust or unreasonable, given her finding there was no valid reason for Mr Taleski’s dismissal and given she had not found any other reason for his dismissal.
(d) Harsh, unjust or unreasonable conclusion
[52] Virgin went on to submit that the Commissioner erred in concluding Mr Taleski’s dismissal was harsh, unjust or unreasonable, even if there was some procedural deficiency by Virgin in effecting the dismissal or there were other matters relevant to such a conclusion.
[53] This submission was predicated on there being a valid reason for Mr Taleski’s dismissal. Since we have concluded the Commissioner did not err in failing to be satisfied there was a valid reason for Mr Taleski’s dismissal, we are not persuaded the Commissioner erred as submitted by Virgin in concluding Mr Taleski’s dismissal was harsh, unjust or unreasonable.
(e) Reinstatement remedy
[54] Finally, Virgin submitted the Commissioner erred in ordering Mr Taleski’s reinstatement on the basis of there being no evidence the employment relationship between Mr Taleski and Virgin had broken down and/or was irretrievable and by failing to consider other matters relevant to such an order.
[55] We are not persuaded the Commissioner erred as submitted by Virgin in ordering Mr Taleski’s reinstatement.
[56] In support of this ground of appeal, Virgin raised matters that they had raised as bases for there being a valid reason for Mr Taleski’s dismissal and in respect of which we have concluded the Commissioner did not err in failing to be satisfied there was a valid reason for Mr Taleski’s dismissal. They also raised matters that predated and were sufficiently answered by the commitments Mr Taleski gave to Virgin in his letter of 24 October 2011. Further, they raised matters that pay inadequate regard to Mr Taleski’s disability and that the objectives of the guidelines in the “Look Book” can be achieved by other means such as his wearing of a wig. In addition, they raised matters based on the past conduct of Mr Taleski during his disability, matters that unreasonably assume a course of conduct by Mr Taleski should his disability cease to exist.
[57] The matters raised by Virgin do not establish that the employment relationship between Mr Taleski and Virgin had broken down to the point of being irretrievable or untenable or that Mr Taleski’s reinstatement is inappropriate.
[58] Virgin also submitted in support of this ground of appeal that the evidence of Mr Taleski’s consultant psychiatrist, Professor David Castle, was inconclusive on Mr Taleski’s ability to cut his hair to comply with Virgin’s “Look Book” due to his disability and whether Mr Taleski was medically fit to fly while wearing a wig. It is true that Professor Castle’s evidence did not specifically address these two issues. However, the Commissioner had before her medical certificates from Mr McGartland effectively linking Mr Taleski’s disability and him not being able to cut his hair to comply with the “Look Book” and recognising that Mr Taleski was wearing a wig at work, even though during his treatment for the disability the ideal situation would be to allow him to wear his hair neatly tied back. The Commissioner also had subsequent evidence from Mr Taleski that he would wear a wig at work.
[59] As to Virgin’s suggestion that there is ambiguity about the nature of the Commissioner’s reinstatement order, we are not persuaded that this is so. Virgin will need to comply with the reinstatement order having regard to Mr Taleski’s disability and that the objectives of the guidelines in its “Look Book” can be achieved by other means.
Conclusion
[60] For the foregoing reasons, we are not persuaded the Commissioner’s decision and order in respect of Mr Taleski’s unfair dismissal remedy application against Virgin is affected by appealable error as submitted by Virgin in its grounds of appeal. No significant errors of fact have been established and we do not consider it is in the public interest or otherwise to grant permission to appeal. We decline to grant Virgin permission to appeal in this matter and, to the extent necessary, dismiss the appeal.
SENIOR DEPUTY PRESIDENT
Appearances:
S. Moody of counsel and J. Wells for Virgin Australia International Airlines Pty Ltd T/A Virgin Australia.M. Addison, solicitor, for David Taleski.
Hearing details:
2013.
Melbourne:
March 13.
Final written submissions:
Appellant, 27 March 2013 and 11 April 2013.
Respondent, 10 April 2013.
1 David Taleski v Virgin Australia International Airlines Pty Ltd T/A Virgin Australia, [2013] FWC 93.
2 David Taleski v Virgin Australia International Airlines Pty Ltd T/A Virgin Australia, PR533082.
3 “the look book your guide to uniform and personal styling”, p.75.
4 Ibid, p.36.
5 Print S2679.
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