Fair Work has ruled that a Virgin Flight Attendant, that fell asleep on a flight, among other issues, be reinstated.  Commissioner Paula Spencer found the dismissal “cruel, unfair and unjustified”.

The flight attendant involved in the case has worked with Virgin Airlines as a Cabin Crew Supervisor for 14 years.  As with many aviation employees, she was stood down for the pandemic and had “significant” period of leave over this time. As part of retraining after the Covid time off, she was required to attend mandatory training flights as an observer.

It was during one of these fights – a short Brisbane-Cairns flight – that the incidents occurred. It was alleged (and later substantiated during a long investigation) by Virgin Airlines that she:

• Allegedly watched movies on her iPad
• Slept in a passenger seat
• When awoken by other staff and directed to return to the jump seat in preparation for landing, she responded with “I’ll stay here” and did not occupy the jump seat (she later said that she didn’t move as she felt unwell)
• She also allegedly took four handfuls of snacks and put them in her bag
• She also signed on late for several shifts and did not notify her manager

It is important to note that most of the incidents occurred on a single day.

After a complaint was made by another staff member about her conduct which states that the Cabin Supervisor spoke to the entire crew on turnaround in Cairns, “encouraging us to all participate in a service as the load was higher for the return sector” she did assist on the second sector of the flight, however the original complaint states that her “communication and working together was not acceptable, in particular pulling the cart away from me, whilst I was serving rows”.  

The original complaint email also states “As a crew we all felt concerned about the nature of her behaviour, performance and attitude. She didn’t seem to have any interest in being back at work, or following our Supervisors role, with any intention of trying to familiarise herself after having time off work.”

Virgin acted on the complaint and sent her a show cause letter, which she responded to, prior to terminating her employment.  

Unfortunately, there were a number of small procedural issues that were not followed at this stage.

1. In the termination decision Virgin relied on previous warnings issued to the employee (which were around the mishandling of cash and were of a serious nature), however they did not note the warnings in the show cause letter issued or in the termination letter.

a. Commissioner Paula Spencer found the airline’s reliance on these warnings procedurally unfair as the Employee did not have a chance to respond (despite having gone through the Show Cause process at the time of the warnings)

2. The Commissioner also found that the time it took for Virgin to investigate contributed to procedural unfairness.

3. Most of the allegations were on a single day.  The Commissioner ruled that a clearer warning and consequences of repeated unfavourable actions should have been clarified.

4. During the preliminary meeting the Employee was not afforded the opportunity to have a support person present.

Commissioner Spencer reasoned that there were alternative outcomes to the dismissal considering the circumstances and context of the company’s operations at the time as well as the flight attendant being a long-standing employee.  

“Considering all of these circumstances, alternative performance management was warranted to correct the behaviour before the disciplinary process escalated to the level of dismissal,” Commissioner Spencer said.

In addition, it was claimed that some of the evidence given by other employees in substantiating the allegations, was ‘petty.’ Virgin also requested the crew members on that flight provide their views regarding her conduct, thereby implicitly sanctioning a process of bringing forth information about the Employee. Undertaking the process in this way was designed to gather supporting evidence. The Employer’s request also provided broader knowledge amongst the crew of alleged non-performance.  This was procedurally unfair, particularly as the material was not directly put to her.

This is a complex case, which initially looks very cut and dried.  This once again shows that it is so important to ensure that a process is followed, and the importance of not allowing behaviour to continue.  

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Read the full case here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FWC/2022/1846.html