A Virgin cabin crew member who was sacked for drinking a glass of Prosecco almost eight hours before a shift (and for having casual sex after requesting a later start time because he was tired) has won his unfair dismissal claim.
A complaint filed with the Fair Work Commission revealed that Dylan Macnish, who is based in Perth and started working for Virgin in July 2022, was dismissed from his cabin crew role in February following a series of allegations made by the airline between September and December last year.
It was alleged that Macnish had arrived at work hungover on several occasions and had once met someone for an early morning sex session after slipping away from his scheduled duties while staying at a hotel provided by Virgin.
As evidence to the court, he was also charged with breaching Virgin’s alcohol rules after drinking a glass of Prosecco at a work Christmas party seven and a half hours before a shift.
But in a judgment released last week, Commissioner Pearl Lim upheld Macnish’s claim, finding some of Virgin’s reasons for firing him “puzzling” and ordered the airline to reinstate him.
In September last year, the Commission heard that a colleague shared with management concerns that Mr Macnish had allegedly arrived to work in poor conditions on two occasions and had even boasted about having a hangover.
Mr Macnish denied this during the Fair Work hearing.
Instead, he claimed he had used the word “dusty” to describe himself during an early morning flight, which he interpreted to mean he was “tired” and not in top form, the ruling said.
Dylan Macnish (pictured, centre), who is based in Perth and started working for Virgin in July 2022, was dismissed from his cabin crew role in February following a series of allegations made by the airline between September and December last year.
In a judgment published last week, Commissioner Pearl Lim found some of Virgin’s reasons for dismissing Macnish “puzzling” and ordered the airline to reinstate him (file image)
The hearing heard evidence of a second “medical incident” that occurred on November 25 during a stopover from Perth to Brisbane.
Cabin crew were told a man had suffered a suspected stroke at the gate counter and Mr Macnish helped move the passenger into a wheelchair, the ruling said.
But, while doing this, the man accidentally urinated on Mr Macnish’s sleeves, an incident that left him distressed and upset.
He was scheduled to return to Perth on a passenger flight at 8.20am the following day, on which a member of the cabin crew was travelling back as a passenger.
These flights are still considered duty flights as there is a chance they will be called back to work.
However, Macnish said he was unable to sleep in the hotel room provided by Virgin due to anxiety stemming from the incident.
At 4.26am he called Virgin’s scheduling team to tell them he would be too tired for his flight and was moved to a flight that afternoon.
Less than an hour after hanging up, he met up with someone he had been chatting to on the dating app Grindr and drove him back to his hotel room at 5.18am, the ruling said.
“This was based on the assumption that having physical interaction with someone would help you fall asleep,” Commissioner Lim wrote.
“She met an individual outside her hotel and the two went to Mr Macnish’s room. They had sexual intercourse and Mr Macnish fell asleep shortly afterwards.”
Her boss, Lydia Ridge, crew culture lead at Virgin, had concerns she had been partying because she had “hit fatigue” less than four hours before her sign-on date.
Macnish (pictured, left) is alleged to have arrived at work hungover on several occasions and once met someone for an early morning sex session while staying at a hotel provided by Virgin and after he had checked out of his scheduled duties. There is no suggestion that the other man in this picture was involved in any way.
She requested CCTV footage of Mr Macnish’s hotel hallway and a record of his hotel room keycard, the Fair Work decision revealed.
On 12 December, Ms Ridge sent Mr Macnish a letter informing him that Virgin was investigating two allegations of misconduct.
First, they denied that the urination incident had occurred and second, they claimed that the man had stepped away from his duties to engage in “social activities.”
Mr Macnish acknowledged that while having sex may not be an orthodox method of getting to sleep, “it is common in the gay community and he has found it successful,” the report said.
Five days later, on December 17, Mr Macnish attended the Virgin Christmas party at the Como Lawn Bowl Club in South Perth at around 2pm.
The hearing heard a colleague testify that Mr Macnish appeared to be under the influence of alcohol as he acted “amorously” and seemed keen to continue the festivities at a nearby pub.
But Mr Macnish said he only had one glass of Prosecco and arrived home at around 4.30pm.
An hour later, she was told they needed a cabin crew member for a red-eye flight that night with a check-in time of 10:55 p.m.
Mr Macnish wanted to take the job but found himself in “uncharted territory” as he had never before drunk alcohol in the eight hours before a flight.
Virgin states that cabin crew members cannot have a drink within eight hours of their assigned shifts.
Mr Macnish said he thought this was a guide rather than a strict rule.
He said he then used a personal breathalyzer which showed a blood alcohol content of zero percent.
However, rumors circulated the following week that he had flown while drunk, the report said.
Mr Macnish attempted to clarify this by alerting management that he had consumed a glass of Prosecco within the eight-hour period.
Virgin fired him on December 20 and laid him off in February, citing the three alleged incidents as the cause.
However, Commissioner Lim strongly criticised the airline, describing its approach to the issue of fatigue management as “puzzling”.
Daily Mail Australia has reported that Virgin Airlines is reviewing the decision and considering its options. It has 21 days to respond (file image)
“During cross-examination of Ms Ridge, she admitted that if a heterosexual, married man were to have sex with his wife after accessing fatigue, then it would ‘probably’ not be Virgin’s business to comment on it,” Commissioner Lim wrote.
‘Ms Ridge also acknowledged that it is common practice for Virgin employees who are on stopovers or working in other cities away from their home base to use dating apps when staying in Virgin-provided accommodation.
“There’s nothing wrong with using dating apps for casual sex. What happens between informed, consenting adults is their business, unless it violates a reasonable, legal workplace policy.”
Commissioner Lim concluded that “there was no valid reason for Mr Macnish’s dismissal”.
“Even if I had been sure there was a valid reason, the circumstances were still harsh and therefore unfair,” she concluded.
‘I believe that the appropriate remedy is his reinstatement (to his position as cabin crew member).’
Daily Mail Australia has reported that Virgin Airlines is reviewing the decision and considering its options. It has 21 days to respond.
Mr Macnish has been contacted for comment.
