Virgin flight attendant sacked for drinking prosecco gets job back for now

A Virgin Australia cabin crew member found to have been unfairly dismissed over a pre-flight prosecco drink has scored a further victory in his fight to return to work.

A Virgin Australia flight attendant found to have been unfairly dismissed for drinking a glass of prosecco hours before a shift has scored a further victory in his battle for reinstatement.

Dylan Macnish was due to return to work on Tuesday after the Fair Work Commission refused Virgin’s application for a stay on his reinstatement until an appeal could be heard.

The airline took action last December after learning Mr Macnish had consumed a glass of prosecco at a Christmas party for staff, and then signed up for a red-eye flight from Perth that meant he was on duty 7.5 hours later.

The commission heard he disclosed his consumption of alcohol to the cabin manager, took a breathalyser test that registered zero blood alcohol content, and later reported himself to supervisors after hearing rumours he had been “drunk on duty”.

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

A glass of bubbles at a Christmas party is at the heart of a Fair Work Commission case.

However, Fair Work commissioner Pearl Lim was satisfied that Mr Macnish along with many of his colleagues believed the eight-hour rule was a guideline rather than a legitimate policy.

“He was compliant with the DAMP (drug and alcohol management) manual and Civil Aviation Safety Authority regulations at the time he commenced his duty,” Ms Lim said.

Two other allegations against Mr Macnish were also advanced by the airline, including an incident in which he used a dating app to find a partner for sex while at Virgin-provided accommodation.

Virgin Australia raised the matter because Mr Macnish was on a fatigue period, after experiencing a traumatic incident in which a passenger he was assisting urinated on him.

He claimed his use of the Grindr app was for the purpose of helping him get to sleep, which the commission accepted.

“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 the decision delivered on August 13, and sought a stay on the order for Mr Macnish to return to work as a cabin crew member within 21 days.

The stay was sought on the basis Mr Macnish would need to undergo refresher training because of the time he had been away from the job. Virgin Australia also argued he remained a “serious workplace health and safety risk”.

In a ruling handed down on Friday, vice-president Mark Gibian said he could not accept Mr Macnish was a risk, based on his disclosure of his consumption of alcohol, his self-administered breathalyser test and reporting himself when he realised he may have breached policy.

“Those actions do not suggest he is a person who is likely to disregard his employer’s work health and safety policies,” Mr Gibian said.

He added that he accepted Mr Macnish had demonstrated “genuine contrition and reflection and learned a lasting lesson”.

“Although some inconvenience may be occasioned by refusing a stay as a result of the steps necessary to reintegrate Mr Macnish into the workforce, the possible and likely prejudice to Mr Macnish tips the balance against granting a stay of the orders of the Commissioner,” Mr Gibian ruled.

No date has yet been set for the appeal.

Originally published as Virgin flight attendant sacked for drinking prosecco gets job back for now