In Taleski v Virgin Australia International Airlines Pty Ltd t/as Virgin Australia(1) the Fair Work Commission recently considered an application for unfair dismissal, following a flight attendant's alleged failure to comply with the company's policy on grooming standards.
David Taleski was a flight attendant employed by Virgin Australia. In July 2010 he advised his supervisor that he would be growing his hair, explaining initially that he was doing so on religious grounds. In early 2011 he advised Virgin Australia that he was going to continue growing his hair because of a medical condition. Taleski had come to believe that he was suffering from a body image disorder that manifested itself in a fixation about the length of his hair and anxiety about having it cut. However, he felt uncomfortable about disclosing this information to his employer.
In February 2011 Virgin Australia introduced a 'look book' policy that outlined its expectations on the grooming and appearance of its employees. The policy provided examples of acceptable hair styles and said that men's hair was not to be longer than 2 centimetres.
From July 2010 to October 2011 Taleski and Virgin Australia were involved in protracted discussions about the length and styling of Taleski's hair and his compliance with the look book. During this period, Taleski met with Virgin Australia several times to try to negotiate acceptable hair styles that would meet the requirements of the look book, but would not require him to cut his hair. On each occasion Virgin Australia determined that the style presented was not acceptable.
Throughout this period, Virgin Australia continuously sought medical information about Taleski's diagnosis and the likely timeframe within which he would be able to comply with the look book. Taleski provided Virgin Australia with eight medical certificates that provided information, in varying degrees, about his condition. He also advised Virgin Australia that he consented to them contacting his doctor, or alternatively that they could supply him with a list of questions about his condition that his doctor could answer. Virgin Australia did not pursue either offer.
In April 2011 Taleski was advised that he would be taken off flight duties. He appealed this decision by contacting senior management (in breach of Virgin Australia's grievance procedures) and argued that he was being subjected to discrimination as another Virgin employee, who was also in breach of the look book requirements, was still allowed to fly.
Following an internal investigation, Taleski made a complaint to the Australian Human Rights Commission, and the case was subjected to conciliation. During that conciliation it was agreed that Taleski could resume flight duties for a trial period of eight weeks, provided that he wore a wig. At the end of the eight-week period, Virgin Australia met with Taleski to find out when he would comply with the look book by cutting his hair, at which time Taleski advised that he would never be able to do so.
On October 20 2011 Virgin Australia terminated Taleski's employment on the basis that he had failed to:
- provide requisite medical documentation;
- comply with the company look book; and
- follow the policies for dealing with grievances in the company.
Considering the reasons for dismissal, Commissioner Cribb found that five of the eight medical certificates provided by Taleski had provided Virgin Australia with the information that it sought. Furthermore, despite a recommendation from Taleski's doctors that he be allowed to grow his hair, Virgin Australia had ignored this advice.
The commissioner also determined that Taleski had done everything he could, within the constraints of his medical condition, to comply with the look book policy, and that Virgin Australia had discriminated against him because the look book policy was not applied in the same way to another non-compliant employee.
The commissioner held that Taleski was not provided with an opportunity to respond to the allegations that resulted in the termination of his employment, thereby holding that Virgin Australia had already determined to terminate his employment.
With regard to these factors, and due to the size of Virgin Australia's business, the commissioner determined that reinstatement and compensation for lost wages was appropriate in the circumstances.
Virgin Australia has appealed the commissioner's decision and applied to prevent Taleski's return to work until its appeal has been determined. Deputy President Smith granted Virgin Australia's application on the condition that Taleski's lost wages (in the vicinity of A$26,000) were paid into an interest-bearing account, pending the appeal.
While the commissioner was critical of Virgin Australia's handling of this matter, its right to have a strict policy on appropriate grooming standards was not in dispute. The case serves as a reminder to employers that:
- policies must be applied fairly and consistently to different employees;
- the circumstances and reasons for an employee's non-compliance with company policy are relevant; and
- they should consider obtaining further medical information from an employee's doctor where medical reasons concerning an employee's ability to perform the requirements of their position have been raised.