Mr David Taleski v Virgin Australia International
Airlines Pty Ltd T/A Virgin Australia (U2011/12885)  FWC
93 (11 January 2013)
This decision reinstated an employee dismissed for not complying
with Virgin Australia's flight attendant grooming policies.
David Taleski was employed as a flight attendant by Virgin
Australia. Between July 2010 and October 2011, Mr Taleski and
Virgin were engaged in protracted discussions as to the length of
Mr Taleski's hair. Mr Taleski wished to maintain a hairstyle
past collar length, and presented medical reasons for doing so.
This style contravened Virgin Australia's Look Book, a company
policy prescribing acceptable dress and presentation standards for
male and female flight crew.
On several occasions, Mr Taleski proposed different hairstyles
as a purported compromise for his non-compliance, but never
significantly shortened his hair. He also provided eight medical
certificates seeking to substantiate his medical condition,
however, Virgin did not consider that these certificates contained
the information it required to allow Mr Taleski to fly in
contravention of the grooming policy.
In May 2011, after being stood down from flight duties for
continued non-compliance, Mr Taleski made a complaint under the
company's Keep Our Workplace Fair (KOWP) policy on the
basis that he was being treated differently to other employees who
were not meeting the grooming regulations but were still allowed to
fly. (He also took steps outside the company's grievance policy
procedures, including on several occasions directly emailing
Following a KOWP outcome he found unsatisfactory, Mr Taleski
then complained to the Australian Human Rights Commission. At a
conciliation conference it was agreed that he would return to
flight duties for a trial period of eight weeks so long as he wore
a wig. Following the trial period, at a meeting between Virgin
Australia and Mr Taleski, Mr Taleski said that he would not ever
become compliant with the policy and was never going to cut his
On 24 October 2011, Mr Taleski's employment was terminated
by way of a letter which gave the following reasons:
failure to provide information supporting his reasons for not
cutting his hair
failure to demonstrate an intent to comply with the Look Book;
failure to comply with the company's grievance
The right of Virgin Australia to have a grooming policy was not
in question in this decision. Further, the Commissioner of Fair
Work determined that the critical issue before her was whether or
not Mr Taleski intended to comply with the Look Book, and so did
not address in her reasons the question of whether a direction to
comply with the Look Book was lawful or reasonable. The
Commissioner adopted this approach because the letter of
termination served on Mr Taleski cited his lack of intention to
comply, rather than the fact of his actual non-compliance. Whether
this was correct, and whether the Commissioner should have
considered reasons beyond those explicitly stated in the letter, is
critical to Virgin Australia's appeal.
As a question of fact, the Commissioner found that five of the
eight medical certificates provided by Mr Taleski did contain the
information Virgin Australia sought. The Commissioner also found
that Mr Taleski was, to the best of his ability and within the
constraints of a medical condition linked to the length of his
hair, intending to comply with the Look Book. Accordingly, first
two reasons in Virgin Australia's termination letter were not
valid, and reason (c) alone was considered insufficient for
The Commissioner also took into account the inconsistent
application of grooming requirements (i.e. where other
non-compliant employees were being allowed to fly), as well as
Virgin Australia's insistence that Mr Taleski cut his hair when
medical evidence indicated this would cause him severe distress.
Taken together, the Commissioner was satisfied that Mr
Taleski's dismissal was harsh, unjust or unreasonable.
In light of these findings, the Commissioner ordered that Mr
Taleski be reinstated to his former duties as a flight attendant.
No orders were made as to how Mr Taleski's appearance was to be
handled going forward.
Virgin Australia was granted a stay of the Commissioner's
decision and leave to appeal. Submissions on the appeal were heard
in late March.
As it stands, the case should be a reminder to employers that
grooming codes need to be applied consistently, but also fairly.
Where an employer finds valid reasons to allow non-compliance in
one case, those same reasons should allow non-compliance in a
The case also suggests that, where medical reasons are relevant,
employers seek a medical professional's input in order to help
them decide on what is fair in any given context.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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