Ex-Virgin chief pilot deemed ‘unfit’ for work before termination

It comes after Michael Fitzgerald, who was also general manager of flight operations, filed a Fair Work claim against the airline, stating the business violated his workplace rights by terminating his contract while he was on extended sick leave for over seven months.

Fitzgerald has also claimed that his extended absence was due to CEO Jayne Hrdlicka allegedly engaging in “workplace bullying” and “harassment” against him, which caused mental health concerns. Virgin told Australian Aviation it “unequivocally” denies the bullying allegations and said it would be “vigorously defending the matter”.

The new documents, filed by Virgin in response to Fitzgerald’s application and seen by The Australian, suggest that no allegations of bullying were raised with the airline before Fitzgerald took an extended leave of absence in July 2021, and that the airline was not aware, at the time, that the absence was mental-health related.

This was only flagged nearly four months later, when Fitzgerald’s lawyers contacted Virgin, and stated that his absence was due to comments made to him by the airline’s chief operating officer Stuart Aggs that “the CEO had lost confidence” in him, and that “it would be better for everyone if he didn’t return to his role and moved on”.

The following month, in December, Virgin sought additional information about Fitzgerald’s condition and ability to return to work and indicated that his employment might be in jeopardy should his condition continue to limit his ability to work.

Shortly after, Virgin requested that Fitzgerald undergo an independent examination to determine his condition.

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Fitzgerald failed to attend the appointment and immediately filed a bullying complaint with the Fair Work Commission. Virgin said this was the first it was made aware of any bullying allegations against its CEO.

Virgin stated the December 2021 allegations of bullying made against the airline were “investigated by an external party” the following month and found to be “not substantiated”.

Fitzgerald later attended two psychological evaluations, which found that he was suffering from a “major depressive disorder”, and ruled that Fitzgerald was likely to remain unfit for work for at least another six months.

In light of this finding, Virgin moved to terminate him from his position.

While protection against dismissal while on sick leave is covered under the Fair Work Act, generally, absences of longer than three months in any 12 month-period can be no longer protected.

Despite claims of bullying and harassment, Fitzgerald is requesting reinstatement to his position as part of his claim.

Virgin’s defence filings noted that Fitzgerald’s application was “vague and not properly pleaded” and that therefore the case was liable to be struck out.

The matter is set to see its first hearing in the Federal Circuit Court on 13 June.

Commenting on allegations made specifically against Hrdlicka, a Virgin spokesperson said all matters around Fitzgerald’s employment were handled by Aggs, to whom Fitzgerald reported directly.

“Mr Aggs was responsible for making all decisions in relation to Mr Fitzgerald’s employment,” they said, adding that Fitzgerald had only ever met with Hrdlicka on a one-on-one basis on two occasions, “as part of a professional development initiative”.

Virgin said that the chief pilot and general manager of flight operations role is “a critical senior regulatory role in Virgin Australia’s business and requires continuity and certainty of leadership”, however, had “supported Mr Fitzgerald for a period of paid absence from the business of more than seven months”.

“During that time, Virgin Australia discussed options for him to return to work. Mr Fitzgerald’s employment was only terminated following multiple independent assessments of his fitness to work,” a spokesperson said.

“We work hard to accommodate employees to manage physical and mental health challenges.

“Our sick leave programs for operational workgroups are regarded as very generous and where team members have exhausted their sick leave, we work with them individually to accommodate unique circumstances and we take advice from medical professionals on their ability to return to work.”