Cabin crew member to be reinstated after Virgin loses stay application

Virgin Airlines Australia has had a stay application against the reinstatement of a dismissed cabin crew member refused.

As previously reported on HR Leader, Virgin Airlines cabin crew member Dylan Macnish’s employment was terminated by the airline giant on the basis of “mystifying” allegations made against him.

Macnish was employed as a cabin crew member from 4 July 2022 right through to his dismissal on 1 February 2024. As described, Macnish was dismissed after he had one glass of prosecco at a Christmas party for Virgin before 2.30pm on Sunday, 17 December 2023, and then later signed up for a red-eye flight, which meant that his shift commenced approximately 7.5 hours later.

Macnish was in breach of the “eight-hour rule” set out in Virgin’s “A4 Manual” that cabin crew should abstain from alcohol for a minimum of eight hours before commencing duty. Virgin also has a “Drug and Alcohol Management Program” referred to as the “DAMP Manual.” This manual, however, does not contain any policy that relates to the “eight-hour rule”.

Although this was the main reasoning behind Macnish’s dismissal, other allegations of misconduct were brought forward along with the prosecco incident.

On 25 November 2023, Macnish was involved in a medical incident involving a passenger during his shift. This ordeal left Macnish quite rattled, and he struggled to sleep that night. Aware that he was going to be exhausted for his shift the next day, Macnish activated Virgin’s Fatigue Risk Management System and removed himself from the roster for the flight the following morning.

After contacting the support team to change his shift, Macnish decided to use the Grindr app to meet someone for casual sex. In his evidence, he explained that having a physical interaction with someone would help him fall asleep. He met the individual, they went to his hotel room, they had intercourse, and then Macnish fell asleep shortly after.

Virgin became aware of this by accessing security footage with time stamps of the interaction, alleging that Macnish therefore lied about the fatigue.

There were other allegations by Virgin that Macnish arrived at his job hungover, alleging that he bragged about being “dusty” during one of his shifts.

Commissioner Pearl Lim broke the allegations down one by one and labelled some as “mystifying.” Ultimately, Lim found that Macnish’s dismissal was unfair and ordered Virgin Airlines Australia to reinstate Macnish by reappointing him to the position in which he was previously employed.

Now, as the 21-day window was just about to wrap up, Virgin filed a notice of appeal in relation to Commissioner Lim’s decision.

Virgin relies on four grounds of appeal for their case, which include:

• “Ground one alleges that the commissioner erred by improperly considering and placing weight on Macnish’s subjective understanding of the eight-hour rule rather than the objective content of Virgin’s policies and training records.”
• “Ground two alleges that the commissioner erred in finding that it was reasonable for Mr Macnish to have regard only to the DAMP Manual.”
• “Ground three alleges that the commissioner made significant errors of fact in finding that Mr Macnish ‘self-referred’ his breach of the eight-hour rule and that the eight-hour rule was a guideline.”
• “Ground four alleges that the decision to reinstate Mr Macnish was unreasonable and/or plainly unjust, including in that the commissioner failed to consider, or give adequate weight to, what were said to be Virgin’s reasonable and genuinely held concerns about Macnish.”

Virgin argued that upon return to his role, Macnish would have to undertake refresher training and supervised flights prior to recommencing active duties; therefore, if the appeal is successful, that training would, in fact, be wasted.

FWC vice president Mark Gibian, who oversaw the stay application, dismissed the weight of these claims, saying: “In those circumstances, I do not regard the requirement to provide training to Mr Macnish imposes a significant burden on Virgin.”

It was also submitted by Virgin that Macnish will remain a serious work health and safety risk. Yet Gibian disagreed based on the findings made by commissioner Lim that saw Macnish actively check the DAMP manual to ensure he wasn’t breaking protocol.

“On the available material, I am unable to accept that Macnish presents a work health and safety risk,” said Gibian.

Gibian also highlighted an excerpt from Macnish’s witness statement that explained the intrinsic value that his job offers him, in regard to Virgin submitting that the revised undertaking addresses any financial prejudice that would be caused to Macnish if a stay is granted.

“Work is more than a way to make a living,” said Gibian. “It is a form of continuing participation in society.”

“The last four months have been the hardest and mentally darkest four months of my life. Before I started at Virgin Australia, I didn’t have many friends and my social skills lacked [sic]. I also had difficulties with my mental health for many years. The people I worked with had become a second family to me, and never before in my life has my mental health flourished so much.”

“If I had consumed that glass potentially only 30 more minutes earlier or the duty was rostered to start 30 minutes later, my entire livelihood would not have been swept out from under my feet. I would not have had to endure so much isolation, loss, and pain,” said Macnish in his previous witness statement presented to the commission.”

After reviewing the collective evidence presented, Gibian said: “The balance of convenience does not favour granting a stay. Although some inconvenience may be occasioned by refusing a stay as a result of the steps necessary to reintegrate Macnish into the workforce, the possible and likely prejudice to Macnish tips the balance against granting a stay of the orders of the commissioner.”