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20 July, 2022

Virgin employee accused of napping on the job wins fair work battle

By James Harrison

A Virgin Australia cabin crew supervisor who was fired for sleeping and watching a film on the job won her job back after the sacking was found “harsh” by the workplace tribunal.

Virgin dismissed the supervisor last year over a few instances of misconduct stretching over a month.

These instances included allegedly stealing snacks, sitting at the back of the plane while watching a movie, and then falling asleep, according to the Australian Financial Review.

The airline found that on other occasions the supervisor would arrive late to work, without makeup, nail polish chipped or with messy hair.

Paula Spencer, a fair work commissioner, said that there was a legitimate reason for dismissal but given the supervisor’s 14 years of service and the procedural flaws in Virgin’s investigations, it was harsh and unfair to sack her.

“When regard is had for all of those circumstances, alternative performance management to remedy the conduct, prior to the escalation of the disciplinary procedure to the level of dismissal, was warranted,” Spencer said.

The main allegations came from a flight the supervisor was on to observe following a long period away due to COVID stand downs and a previous suspension.

During the incident where the supervisor sat at the back and fell asleep, another crew member preparing for landing alleged that she woke the supervisor to tell her to take her crew seat, to which she replied “I’ll stay here.”

The supervisor told the commission that she “closed her eyes momentarily” as she was feeling unwell. She said she was deleting photos and not watching a movie but looking at Virgin’s entertainment app. She also denied any theft, saying she consumed everything on the flight.

The supervisor also said she did not need to go to the crew seat as she had no responsibility for the plane doors.

Virgin dropped its claims with respect to the supervisor’s appearance but argued that her conduct amounted to theft, dishonesty and “willful neglect” of training required for safety.

Spencer believed the woman was somewhat uncooperative in her evidence and was “clearly aware” of her requirement to sit in the jump seat.

It was found that Virgin lacked evidence when it came to taking food off the plane.

“Her role was not to consume snacks on the plane but to observe the flight, assist with service, and refamiliarise herself,” the commissioner said.

Spencer believed there to be mitigating factors, despite Virgin’s valid reasons for dismissal over breaches of company procedures.

The commissioner also found it was procedurally unfair for Virgin to tell their crew of claims against the supervisor about the flight and solicit their views on it.

The breaches also took place on one day after a long time away, and in circumstances where a “significantly clear warning” might have been enough.

The AFR reported that Virgin failed to consider the supervisor’s medical condition in regards to her lateness.

“Whilst a valid reason existed simply based on the breaches of the operating procedures and code of conduct, the dismissal was harsh, unjust, and unreasonable, in all of the particular circumstances of the lesser breaches of duty, and the procedural fairness matters,” she said.

The commission ordered that Virgin reinstate the supervisor but without backpay for lost wages considering her contributions to her dismissal.

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Fair Work Commission Paula Spencer Unfair dismissal virgin australia