Virgin appeal ‘not close to convincing’, says FWC ruling on sacked flight attendant

Virgin Australia has lost its appeal against a flight attendant unfairly sacked for drinking a glass of prosecco 7.5 hours before working and using a dating app while on fatigue leave.

Virgin Australia has lost its appeal against a Fair Work Commission ruling that a cabin crew member was unfairly dismissed for drinking a glass of prosecco 7.5 hours before his shift.

Dylan Macnish reported himself to supervisors after hearing rumours he had been “drunk on duty” after signing up for a red-eye flight from Perth after a Christmas party in December 2023.

Virgin Australia argued he had breached the airline’s eight hour rule, which advised cabin crew they should abstain from alcohol for at least eight hours before duty.

His claim for unfair dismissal was successful, with Fair Work commissioner Pearl Lim finding he was compliant with the drug and alcohol management manual and Civil Aviation Safety Authority regulations when he went to work.

Ms Lim was also unconvinced Mr Macnish had committed a sackable offence by using the Grindr app to find a sex partner to help him sleep after pulling out of a previous shift due to fatigue.

Virgin Australia had claimed Mr Macnish had breached the fatigue management rule by engaging in social activity at his employer-funded hotel room.

It followed his withdrawal from a shift, after a traumatic experience on a flight to Perth which saw a passenger urinate on Macnish.

“Whilst that may not be the way that everyone chooses to help them fall asleep, it does not mean that Mr Macnish was manipulating or misusing the fatigue entitlement,” Ms Lim said.

Virgin Australia appealed her ruling to the full bench of the Fair Work Commission, made up of vice president Mark Gibian and deputies Tony Slevin and Tony Saunders.

In a unanimous judgment, the FWC said Virgin Australia had “not come close to convincing us” it was unreasonable or unjust to order Mr Macnish’s reinstatement.

“The allegations identified by Virgin were not soundly based,” said the ruling.

“Mr Macnish genuinely and reasonably understood that the eight-hour rule was a guideline; Mr Macnish took reasonable steps to ensure he was not breaching Virgin’s drug and alcohol policies prior to signing on for duty on December 17, 2023; Mr Macnish was remorseful and demonstrated contrition once he found out he had breached a policy, and Mr Macnish had learnt a lasting lesson.”

Virgin Australia has failed to overturn a reinstatement order for a cabin crew member.

The Fair Work commissioners also dismissed Virgin Australia’s claim his reinstatement would convey to other cabin crew they could breach the eight-hour rule and “get away with it”.

“Rather, the decision should assist staff in clearly understanding Virgin’s policies,” ruled the commissioners.

On the subject of Virgin’s claim Mr Macnish had wrongly accessed fatigue entitlements, the FWC found no basis to the claim he sought the change to engage in social activities.

“It is well established that any alleged loss of trust and confidence in an employee must be soundly and rationally based,” said the judgment.

“The allegations identified by Virgin were not soundly based.”

In a brief statement, a Virgin spokeswoman said they were “disappointed with the decision of the Fair Work Commission”.

Originally published as Virgin appeal ‘not close to convincing’, says FWC ruling on sacked flight attendant