Mr David Taleski v Virgin Australia International Airlines Pty Ltd T/A Virgin Australia (U2011/12885) [2013] FWC 93 (11 January 2013)

This decision reinstated an employee dismissed for not complying with Virgin Australia's flight attendant grooming policies.

Facts

David Taleski was employed as a flight attendant by Virgin Australia. Between July 2010 and October 2011, Mr Taleski and Virgin were engaged in protracted discussions as to the length of Mr Taleski's hair. Mr Taleski wished to maintain a hairstyle past collar length, and presented medical reasons for doing so. This style contravened Virgin Australia's Look Book, a company policy prescribing acceptable dress and presentation standards for male and female flight crew.

On several occasions, Mr Taleski proposed different hairstyles as a purported compromise for his non-compliance, but never significantly shortened his hair. He also provided eight medical certificates seeking to substantiate his medical condition, however, Virgin did not consider that these certificates contained the information it required to allow Mr Taleski to fly in contravention of the grooming policy.

In May 2011, after being stood down from flight duties for continued non-compliance, Mr Taleski made a complaint under the company's Keep Our Workplace Fair (KOWP) policy on the basis that he was being treated differently to other employees who were not meeting the grooming regulations but were still allowed to fly. (He also took steps outside the company's grievance policy procedures, including on several occasions directly emailing Virgin's CEO).

Following a KOWP outcome he found unsatisfactory, Mr Taleski then complained to the Australian Human Rights Commission. At a conciliation conference it was agreed that he would return to flight duties for a trial period of eight weeks so long as he wore a wig. Following the trial period, at a meeting between Virgin Australia and Mr Taleski, Mr Taleski said that he would not ever become compliant with the policy and was never going to cut his hair.

On 24 October 2011, Mr Taleski's employment was terminated by way of a letter which gave the following reasons:

  • failure to provide information supporting his reasons for not cutting his hair
  • failure to demonstrate an intent to comply with the Look Book; and
  • failure to comply with the company's grievance processes.

Decision

The right of Virgin Australia to have a grooming policy was not in question in this decision. Further, the Commissioner of Fair Work determined that the critical issue before her was whether or not Mr Taleski intended to comply with the Look Book, and so did not address in her reasons the question of whether a direction to comply with the Look Book was lawful or reasonable. The Commissioner adopted this approach because the letter of termination served on Mr Taleski cited his lack of intention to comply, rather than the fact of his actual non-compliance. Whether this was correct, and whether the Commissioner should have considered reasons beyond those explicitly stated in the letter, is critical to Virgin Australia's appeal.

As a question of fact, the Commissioner found that five of the eight medical certificates provided by Mr Taleski did contain the information Virgin Australia sought. The Commissioner also found that Mr Taleski was, to the best of his ability and within the constraints of a medical condition linked to the length of his hair, intending to comply with the Look Book. Accordingly, first two reasons in Virgin Australia's termination letter were not valid, and reason (c) alone was considered insufficient for dismissal.

The Commissioner also took into account the inconsistent application of grooming requirements (i.e. where other non-compliant employees were being allowed to fly), as well as Virgin Australia's insistence that Mr Taleski cut his hair when medical evidence indicated this would cause him severe distress. Taken together, the Commissioner was satisfied that Mr Taleski's dismissal was harsh, unjust or unreasonable.

In light of these findings, the Commissioner ordered that Mr Taleski be reinstated to his former duties as a flight attendant. No orders were made as to how Mr Taleski's appearance was to be handled going forward.

Appeal

Virgin Australia was granted a stay of the Commissioner's decision and leave to appeal. Submissions on the appeal were heard in late March.

Comment

As it stands, the case should be a reminder to employers that grooming codes need to be applied consistently, but also fairly. Where an employer finds valid reasons to allow non-compliance in one case, those same reasons should allow non-compliance in a similar case.

The case also suggests that, where medical reasons are relevant, employers seek a medical professional's input in order to help them decide on what is fair in any given context.

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