Unfair dismissal and the Virgin Airlines case

A recent decision of the Fair Work Commission serves as a warning to all employers concerning the need to act fairly and the need to have a valid reason if an employer is contemplating a dismissal.

In a July 2013 decision of the full bench of the Fair Work Commission in Virgin Airlines v David Taleski  the Commission upheld a decision of Commissioner Cribb to reinstate a flight attendant.  Mr Taleski was dismissed by Virgin Airlines because he failed to comply with its requirement about his appearance and in particular, the length of his hair.

Mr Taleski had started to grow his hair long for religious reasons associated with the tenth anniversary of his mother’s death.  Mr Taleski had first been allowed to wear a wig as a temporary measure but was subsequently sacked when he indicated he was never going to change his hairstyle to comply with Virgin Airlines male dress code known as its  “Look Book”.

Mr Taleski was dismissed in circumstances where:

1.            He had worked with Virgin Airlines for 4 years.

2.            He had an unblemished employment record.

3.            He had a diagnosed mental health condition that prevented him from cutting his hair.

4.            He had attempted to comply with Virgin Airlines “Look Book” requirements by trying different hair styles and wearing a wig.

5.            He was prepared to wear a wig to comply with the in house “Look Book” and to provide Virgin Airlines with his doctor’s clinical assessment and diagnosis and to continue to undergo treatment for his mental health issues.

6.            Virgin Airlines did not consistently apply its grooming requirements, as another employee had at an earlier time, been given an exemption from the code for its Look Book requirements..

The full bench of the Fair Work Commission upheld the initial decision that Mr Taleski had attempted to comply with its hair dress code, and was not given an opportunity to respond to any valid reason for his dismissal, because the decision to terminate his employment was made before he had an opportunity to respond.

The lessons for all employers arising out of this decision include:

1.            Do not insist on strict compliance with grooming codes or dress standards if to do so would on medical evidence cause severe stress.

2.            Do not predetermine an outcome (i.e. decision to dismiss) before putting the allegation formally to the employee.

3.            Apply codes and dress standards consistently between all employees.

Philip Brewin
Accredited Workplace Relations Specialist

Anyone seeking advice about workplace laws should contact Nevett Ford Melbourne Lawyers on 03 9614 7111.