Employers will often refer to previous warnings to support a decision to terminate the employee’s employment for misconduct. However, a recent case involving Virgin Australia is a reminder for employers to give employees the opportunity to respond to any reliance on former warnings before making a decision to terminate.
Virgin Australia has since appealed the decision.
Background
The Applicant, DeVania Blackburn, commenced employment with Virgin Australia in June 2007 as a Cabin Crew Supervisor. She was employed for 14 years before her dismissal.
Ms Blackburn was absent from work for approximately two months due to being stood down because of the COVID-19 pandemic. Ms Blackburn underwent mandatory training as a supernumerary crew member (flight observer) upon her return to work on 31 January 2021.
In April 2021, Virgin Australia commenced investigation into allegations that Ms Blackburn had between 31 January 2021 and 9 March 2021:
misappropriated food products and departing the aircraft with them;
sat in the passenger seat (instead of in the crew jump seat), watching a movie on her iPad and falling asleep;
arrived late for shifts;
failed to sign on and off for duties; and
failed to dress and present to work as per Virgin Australia’s standards.
Ms Blackburn was given an opportunity to respond to these allegations. She was subsequently required to show cause as to why her employment should not be terminated following substantiated findings made against her.
Ms Blackburn was subsequently dismissed on 21 July 2021.
Ms Blackburn brought an unfair dismissal application against Virgin Australia.
During the hearing, Virgin Australia argued that it had a valid reason to terminate Ms Blackburn’s employment. Relevantly, Virgin Australia said that Ms Blackburn was subject to a final written warning issued on 28 October 2019 for accepting and misappropriating cash from a guest. Ms Blackburn also had a final written warning for breaching Virgin Australia’s Code of Conduct. Neither the show cause letter nor the termination letter made reference to the final warning (despite Virgin Australia relying on them to terminate Ms Blackburn’s employment).
Finding
The Fair Work Commission (FWC) found that Virgin Australia had valid reasons to terminate Ms Blackburn’s employment. However, the termination was harsh, unjust and unreasonable due to procedural deficiencies. FWC took the following matters into consideration:
The termination letter issued to Ms Blackburn made no reference to the past warning and did not form part of the reasons for termination. The FWC said that given that Ms Blackburn was not put on notice that she was required to respond to the prior warning or that it formed part of the reasons for the termination, the written warning could not be taken into account in the proceedings.
COVID-19 played a part in Virgin Australia’s delay in investigating and addressing the concerns with Ms Blackburn which contributed to the deficiencies in procedural fairness.
Ms Blackburn had a long-standing employment of 14 years with Virgin Australia. The FWC said alternative outcomes to dismissal were available to Virgin Australia for such a long-standing employee, which Virgin Australia should have reasonably considered.
The allegations arose from mainly one flight over the course of one day, in a re-entry exercise. The aim of the exercise was to allow Ms Blackburn to re-enter the workforce to discharge her duties, after a lengthy period away from work due to the COVID-19 pandemic.
Consequently, the FWC found that whilst the termination was based on a valid reason, it was unfair considering all these factors. The FWC ordered Virgin Australia to reinstate Ms Blackburn and issued an order for continuity of service.
Key Lessons
This case (regardless of the appeal outcome) presents the following reminders:
An employer relying on prior warnings as part of the reason for dismissal should clearly notify the employee of this reliance and provide the employee an opportunity to respond to this before dismissing the employee.
An employer should consider if there are alternative outcomes to termination, particularly in circumstances where the employee is a long-standing employee.
Addressing concerns regarding performance and / conduct should not be unreasonably delayed. An employer address such concerns with the employee promptly.
For more information please contact:
Jasmine O'Brien
Principal
M +61 401 926 108 | T +61 3 9611 0149
E: jobrien@sladen.com.au
Katherine Dennis
Principal Lawyer
M +61 407 013 010 | T +61 3 9611 0151
E: kdennis@sladen.com.au
Geeta Vanugopal
Associate
T +61 3 9611 0135
E: gvanugopal@sladen.com.au
