A Virgin Australia flight attendant has won his job back after the Fair Work Commission decided that he was unfairly dismissed for failing to cut his hair to comply with the airline's Look Book policy, but he might need to await the result of a full bench appeal before he returns to the skies.
The attendant and Virgin had negotiated for 16 months over his desire to keep his hair longer than prescribed in the Look Book, before the airline terminated his employment on October 24, 2011.
Virgin argued that the attendant had failed to provide it with adequate medical information about why he needed to wear his hair long, and had failed to comply with a lawful and reasonable direction to cut his hair in line with company policy.
It also said he had not followed internal grievance procedures by repeatedly raising concerns with senior management, including chief executive John Borghetti.
But Commissioner Anna Cribb found no valid reason for his dismissal, and that Virgin failed to give him a proper opportunity to respond to the reasons for his termination.
Medical information sufficient
The attendant had initially indicated in July 2010 that he needed to grow his hair longer for religious reasons related to mourning the death of his mother, who had passed away 10 years previously.
He later claimed that his need for long hair was linked to a medical condition, Body Dysmorphia Disorder (BDD).
Virgin management asked him to provide evidence of his diagnosis with the condition and the relevance of it to maintaining longer hair.
The attendant provided eight medical certificates during 2011 from a variety of practitioners, but Virgin argued that none of them contained a diagnosis. At best, they indicated that the attendant had presented with symptoms of BDD, the airline maintained.
But Commissioner Cribb disagreed. She said the medical information showed that the attendant was receiving management regarding a body image disorder, that the disorder related to the length of his hair and that he had anxiety about cutting it.
She said the certificates also showed that his doctor had referred him to a psychologist who was intending to develop a treatment plan and whose assessment was that successful treatment might "take a considerable period of time."
Policy says 4cm the limit
The commissioner also rejected Virgin's claim that the attendant was refusing to comply with its Look Book.
A Virgin manager told FWC it launched the Look Book in February 2011, but had flagged the changes with cabin crew during the second half of 2010. Referring to the male grooming requirements (see an extract) she said the pictures were "only guidance as the company would be unable to provide a picture of every hairstyle that meets the grooming guidelines in the book."
The manager described the "business appropriate style haircut" as "very tidy, very neat, that looks natural and is not longer than 4 cm in length and which is complementary to the person's body or uniform."
Another manager who had been involved in its preparation said it was intended to reflect "how a typical guest expects a male employee to look."
Commissioner Cribb said the attendant had not challenged Virgin's right to have a grooming and uniform policy and this was not in question.
But she found the attendant had made several attempts to comply with the Look Book, including proposing two different styles that did not involve cutting his hair and also suggesting the wearing of a wig. The attendant actually wore a wig from August 2011 until his dismissal, but Virgin said it had only ever considered this to be a temporary measure.
The commissioner accepted that the attendant had not complied with internal grievance procedures, but said this on its own did not provide a valid reason for dismissal.
Commissioner Cribb agreed with the attendant's argument that he had not been given a proper opportunity to respond to the allegations against him at an October 20 meeting, because the decision to dismiss him had been made at a managers' meeting two days before.
She said the evidence demonstrated that Virgin on October 18 accepted a recommendation to dismiss the attendant and the next day developed a script for one of the managers to read to the attendant at the final meeting on October 24. The script stated that the company had decided to terminate his employment.
Under the "any other relevant matters" criterion in s387(h), the commissioner said Virgin had applied its grooming policy inconsistently by exempting another attendant with a similar medical condition from its requirements.
Also relevant was the company's rigid insistence that the only way for the attendant to comply with the policy was by cutting his hair, despite the distress this would cause him.
Reinstatement not inappropriate
Commissioner Cribb reinstated the attendant to his position in the cabin crew in the face of Virgin's argument that this would not be appropriate.
"It was clear from the evidence that [the attendant] is passionate about flying and is extremely keen to return to doing that. There was no evidence before me of previous or other disciplinary issues and it was [Virgin's] witnesses' evidence that there were no concerns regarding his work performance. Virgin Australia is not a small employer and has a large number of cabin crew employees. There was no evidence before me that the employment relationship had broken down and was irretrievable," she said.
She agreed with Virgin's proposal that it confer with the attendant on the amount of lost remuneration payable, and gave them three weeks to conclude their discussions.
Virgin to appeal
Virgin group executive people Richard Tanner confirmed today that the company would be appealing the decision and would seek a stay to prevent the attendant returning to work if necessary, pending the hearing.
Tanner said Virgin was clear that it had a "well-defined standard and look for our customer-facing staff" and that its new brand had been "well accepted by the broader community".