Souza-Connell v Virgin Australia Airlines Pty Ltd [2026] FWC 1572
KEY TAKEAWAYS:
In this recent Fair Work Commission decision, Virgin Australia was required under its enterprise agreement to hand over witness interview records and statements relied on to formulate misconduct allegations.
While the decision turns on the specific wording of the Virgin Australia Cabin Crew Agreement 2023 (the Agreement), it is a timely reminder for all employers of the importance of clear and deliberate drafting of investigation clauses in enterprise agreements.
The case
A Cabin Manager employed by Virgin Australia faced six allegations of misconduct raised between February and May 2025, including improperly recording a private conversation, breaching confidentiality, gossiping, using profane language, making derogatory comments, and failing to follow reasonable directions.
In order for the Cabin Manager to properly respond to the allegations against her, the Flight Attendants’ Association of Australia (FAA) argued Virgin Australia was obliged to provide her with additional information. The dispute, brought under s.739 of the Fair Work Act 2009, centred on a single question: what documents must Virgin Australia provide the Cabin Manager under the Agreement?
The disputed clause
The clause at the centre of the case is subclause 2.26.11(b) of the Agreement. This clause requires Virgin Australia to provide an employee with:
details of the allegations…in writing, and in sufficient detail, to enable…a proper response, together with copies of any video footage, electronic records or any other policies, manuals or documents referenced or relied upon in the allegation…including, in appropriate circumstances, a de-identified complaint.
The FAA argued this required broad disclosure, including all witness statements and interview records.
Virgin argued the clause should be read narrowly, limiting ‘documents’ to materials like swipe card data or receipts, and that it was not required to adopt an ‘open file’ disclosure policy.
A shift towards greater disclosure
The decision traced a clear trajectory across successive Virgin enterprise agreements to demonstrate that there had been a clear intention to shift from discretionary to mandatory disclosure.
| Agreement | Disclosure Obligation |
| 2015 Agreement | Details of allegations in writing only |
| 2021 Agreement | Details in writing; discretion to annex supporting material |
| 2023 Agreement (current) | Mandatory provision of documents referenced or relied upon |
This shift reflected a meaningful, negotiated improvement in employee rights1.
The decision
Deputy President Millhouse held that Virgin Australia was required to provide the Cabin Manager with any documents that were referenced or relied upon in the written allegations against her, including witness statements and interview records.
‘Documents’Â was given its ordinary, broad meaning. The obligation is not unlimited; it applies only where a document was genuinely referenced or relied upon in the written allegation. Virgin was not required to hand over everything it had collected, but could not withhold material that was used to formulate the allegations.
‘Referenced’Â was interpreted to mean a document the allegation directs attention to, explicitly or by clearly drawing on its content, including documents mentioned by name, date, or title.
‘Relied upon’Â was interpreted to mean a document used to formulate the allegation, including witness statements or interview records.
One exception applies: where a document is a complaint, only a de-identified version need be produced, and only where it is appropriate to do so.
Applying this to the Cabin Manager’s case, the Commission found that Virgin’s allegation letters disclosed reliance on witness accounts that had been ‘stated’, ‘reported’, ‘recorded’, or ‘noted’. To the extent those accounts were captured in documents used to formulate the allegations, the Cabin Manager was entitled to copies. The Commission concluded:
On a proper construction of subclause 2.26.11(b), any ‘documents’ including records of interview, interview notes or witness statements that are referenced or relied upon in the letters of 27 February, 17 April and 21 May 2025, with the exception of any document that constitutes a ‘complaint,’ a de-identified copy of which is to be produced only in appropriate circumstances.
Balancing confidentiality and procedural fairness
This decision highlights one of the most persistent tensions in workplace investigations: balancing procedural fairness with confidentiality protections.
The Commission’s reasoning focused on the carve out included in subclause 2.26.11(b) for de-identified complaints that disclosure is triggered only where documents are ‘referenced or relied upon’, with a separate appropriateness test for complaints. However, in practice where allegations are formulated substantially on witness accounts, the line between a ‘relied upon document’ and a ‘complaint’ may be blurred leaving employers and employees with uncertainty about what information is to be disclosed.
Does this decision discourage a ‘safe to-speak-up’ culture?
While mandatory disclosure obligations are aimed at ensuring procedural fairness, they do not readily accommodate a circumstances-based approach to protecting investigation participants.
Where employees who raise concerns know that their information, even in de-identified form, will be disclosed to the subject of the complaint, they may be less willing to come forward, or more guarded in the information they do provide.
This mandatory approach may also increase the risk of retaliation post-investigation. These broader considerations fell outside the scope of the Commission’s considerations in this matter.
Key takeaway for employers: review your enterprise agreements carefully
For employers, this decision is a prompt to review existing enterprise agreements or internal policy clauses in relation to investigation processes.
Where mandatory language is used, particularly phrases like ‘will be provided,’ employers should consider whether the clauses clearly identify the documents to be disclosed, and whether their processes adequately protect confidentiality within that framework.
1 The Commission noted that the Virgin enterprise agreement was one that falls short of the Qantas enterprise agreement standard, which requires provision of any correspondence and/or reports to be provided to a flight attendant prior to any investigative interview – see clause 71.6.3 of Flight Attendant’s Association of Australia – Short Haul Division (QANTAS Airways Limited) Enterprise Agreement.
More information
Q Workplace Solutions’ team of experienced and legally qualified investigators is trusted by public and private organisations, including ASX-listed companies and government agencies, to investigate complex and often highly sensitive allegations of employee wrongdoing. The team also undertakes reviews of organisations, divisions, or units, and provides training, coaching and external advisory support to internal investigators and teams.
Upcoming training | 18 June 2026
In this practical three-hour online investigations training workshop – Bullying Allegations: Conducting a Mock Investigation – participants will conduct a ‘speed investigation’ from start to finish, of allegations that deal with complex and sensitive issues common in bullying complaints. Group bookings are available.
