Fair dismissal case overturned in a win for Virgin

Melbourne, Australia - April 17, 2016: Virgin Over The Moon: On a sunny autumn day, Virgin Boeing 737 VH-VUD “Tallow Beach” takes off from Melbourne’s Tullamarine Airport into clear blue skies as it heads to Sydney with a domestic service (VA895) on one of the world’s busiest air corridors. It is seen passing over the rising moon.

Virgin Australia has had a decision overruled by the Fair Work Commission (FWC), turning the tables on an ongoing case and disgruntled ex-employee.

DeVania Blackburn had worked with Virgin since 2007 and was, at the time of dismissal, a cabin crew supervisor.

Blackburn had initially won the legal fight with the airline despite being seen by witnesses leaving the aircraft with Virgin food products, watching a movie on her iPad during in-flight service and then later asleep in a passenger seat on the same flight.

During initial proceedings, Fair Work Commissioner Paula Spencer agreed with Ms Blackburn and said the dismissal was “harsh, unjust and unreasonable” after Blackburn argued evidence against her came from her fellow employees and was a “fabricated” attempt to “degrade and humiliate her”.

“The dismissal was harsh, unjust and unreasonable in all of the particular circumstances of the breaches of duty and the procedural fairness matters,” commissioner Spencer said.

“Taking into account all of the facts and circumstances of the matter, on balance, reinstatement is appropriate and an order for continuity of service is issued.”

Virgin was ordered to reinstate Blackburn’s job, however, that order was stayed when the airline lodged an appeal to the full bench of the FWC.

Virgin Australia Cabin Staff. (Supplied)

The airline argued that on January 31, 2021 Blackburn was “not wearing makeup, (her) hair was messy with visible fly-aways, and (her) nail polish was visibly chipped,” and in doing so was not complying with the airlines ‘look book’.

They further stated she was not wearing stockings for work on March 9, 2021 and argued Blackburn had failed to consider the multiple warnings she had received in years previous.

Virgin also argued Commissioner Spencer failed to consider the multiple warnings issued to Blackburn in the years prior to the dismissal.

The first warning, according to court documents, was given to Ms Blackburn in 2019 when Virgin Australia had substantiated an accusation that she had “misappropriated cash from a passenger”, while the second warning was for non-compliance with Virgin’s attendance policy.

The full bench of the FWC considered these warnings and found that Blackburn was “fully aware of her obligations” and “had been warned of conduct of this type on previous occasions”.

The full bench upheld all grounds presented by the airline, and quashed the original decision.

“Having found that (Blackburn’s) dismissal was not harsh, unjust or unreasonable, we are also satisfied that (Ms Blackburn) was not unfairly dismissed.”

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