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Fair Work considers reinstatement after sick leave scandal

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Fair Work can consider reinstatement when the relationship with the employer is not too damaged. It must still be appropriate for the employee to return. How much is my unfair dismissal case worth?

Flight attendant dismissed for Grindr hookup reinstated

The Fair Work Commission considered reinstatement of a Virgin flight attendant who was dismissed for having a casual fling on Grindr and drinking a glass of Prosecco. The flight attendant had taken sick leave for fatigue, but later went on Grindr for a hookup. He argued that it would “help him fall asleep.”

The Fair Work Commission believed that he was genuinely fatigued and said that there was “nothing wrong with using dating apps for casual sex.” It also found that it was “reasonable” for the flight attendant to have breached Virgin’s drug and alcohol policy.

In this article, we’ll explain why the Fair Work Commission came to these findings and give you all the details leading up to the unfair dismissal hearing.

Virgin flight attendant dismissed for Grindr fling and glass of Prosecco

This unfair dismissal case – Virgin Airlines Australia Pty Ltd v Dylan Macnish [2025] – involved Perth-based Dylan Macnish. He began working for Virgin as a cabin crew manager in mid-2022. According to the airline, he had a history of turning up to work hungover. In September 2023, an anonymous colleague reported that Mr Macnish had “come to work hungover twice.” The colleague also claimed that Mr Macnish “had boasted about being hungover.” 

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(Right) Dylan Macnish (Instagram) – Employees can do everything right and still face unfair dismissals. Do not allow your employer to unfairly dictate your life.

In addition, the colleague claimed that that Mr Macnish told him he would purchase a personal breathalyser so he could gauge his alcohol consumption prior to doing night shifts. The colleague also said that on an early morning flight Mr Macnish had described himself as “dusty.”

Upon hearing this, Mr Macnish’s manager leveled these accusations at him. Mr Macnish responded by saying he was “shocked” by them. He insisted that he had never violated Virgin’s rule about consuming alcohol within eight hours of attending work. Mr Macnish was advised to monitor his alcohol consumption. Mr Macnish’s proactivity to follow policy was a key consideration why Fair Work considered reinstatement as an appropriate option.

Flight attendant got peed on, called in sick

In November 2023, Mr Macnish was on duty on a flight from Perth to Brisbane when a medical incident occurred. The cabin crew believed the passenger was having a stroke, so Mr Macnish assisted him into a wheelchair. Whilst doing so, the passenger accidentally urinated on Mr Macnish’s shirt sleeves. 

Later that night, he told friends and family that he was affected by the experience, which was his first medical incident. He said that it left him unable to sleep. However, he was due to work a flight back to Perth early the next morning. At around 4.40am, Mr Macnish called in sick, saying that he was “fatigued.” He was then rostered onto a 4:45pm flight.

Claimed Grindr sex would ‘help him fall asleep’

However, after calling in sick, Mr Macnish decided to have a flurry on the gay dating app Grindr, with the intention of having casual sex. In his unfair dismissal claim, he told the Fair Work Commission that “physical interaction with someone would help him fall asleep.” He arranged a meeting with a man in his hotel room. The Commission noted that “they had sex and Mr Macnish fell asleep shortly after.”

Because Mr Macnish had cited fatigue as the reason for his sick leave, a notification was sent to Virgin’s Cabin Crew Management. Virgin claimed that the fact he called in sick “more than four hours prior to his rostered sign-on…raised concerns that he had been out all night before.” Mr Macnish’s manager said she was concerned as he had cited fatigue to take sick leave three times in three months.

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Dylan Macnish (Instagram) – Unsure whether you have been unfairly dismissed or are eligible for reinstatement? Call us today at 1800 333 666.

Grindr fling led to misconduct investigation

In December 2023, Mr Macnish’s was sent a letter saying that Virgin was investigating his alleged misconduct on the morning of his Grindr episode. The airline accused him of having a guest in his hotel room while on leave for fatigue. It said that it had CCTV footage of him leaving his hotel and going back in with the guest at around 5:30am. The footage showed the guest leaving around 9:00am. Virgin said that he had removed himself from his rostered duty to engage in “social activities.”

The airline also accused Mr Macnish of lying about the medical incident on the flight from Perth to Brisbane. His manager had checked the safety report, where there was no mention that a passenger had a stroke. It also did not mention that Mr Macnish had been peed on.

Downed a single Prosecco at Xmas party

The second incident that led to the dismissal of Mr Macnish happened on 17 December 2023 at Virgin’s Christmas party. He told the Fair Work Commission that shortly after he rocked up at about 2″00pm he had a single glass of Prosecco. He said that he was offered another glass later on, but “did not drink any of it.” Rather, he claimed that he simply “held onto it as a social crutch.”

Mr Macnish said that while others went to a nearby pub to continue drinking, he was “completely sober” and went home. A Virgin employee, however, said that he had a brief chat with Mr Macnish at the party. She said that he appeared “lovey dovey” and was more animated than his usual self. She claimed that he seemed “excited” to go to the nearby hotel and even offered to carpool with her.

However, Mr Macnish told the Fair Work Commission that this colleague appeared “intoxicated” at the party. He said that he offered her a lift to the hotel as he wanted to make sure she got there safely. However, after another colleague told him that they needed to head in the opposite direction of the hotel, Mr Macnish told the female colleague that he could not give her a lift.

The Fair Work Commission favoured Mr Macnish’s side of the story at his unfair dismissal hearing. 

Took precautions to ensure no policy violation

On the evening of the Christmas party, Mr Macnish received a Snapchat message from his manager saying a red-eye flight was short one cabin crew member. He told his manager that he had consumed alcohol earlier that day. The manager responded by saying that the “8-hour rule” of Virgin’s drug and alcohol policy was “more of a guideline.”

Still, Mr Macnish wanted to make sure he was ok to work, so he consulted the policy. He did not find anything about drinking within 8 hours of a shift. He therefore concluded that he would not be breaching the policy. Just to make sure, he used his personal breathalyser at 7:00pm, confirming a BAC reading of 0.00%. He ended up working the flight, which took off at 11:22pm.

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(Left) Dylan Macnish (Instagram) – Fair Work considers reinstatement due to Mr Macnish’s impeccable record. Demonstrating the importance of working hard and always having a positive attitude in the workplace. Not all employers are blind to their employee’s hard work.

Found out he actually had violated Virgin policy

Over the following days, rumors began circulating among coworkers that Mr Macnish had been intoxicated on the flight. Concerned, he sought to clarify the matter with his manager, who said that no policies had been breached.

Later that day, Mr Macnish approached Virgin’s Perth office to speak with a management representative. Unable to meet with her, he spoke with Virgin’s crew culture manager. During their discussion, he recounted his actions, explaining that he consumed one glass of Prosecco by 2:30 pm. He also explained that he only held a second glass as a social crutch before leaving the event at 4:30 pm.

The conversation turned to the “8-hour rule,” with the culture manager asserting that it was a rule and not a guideline. Together with another employee, they reviewed the drug and alcohol policy but failed to find a definitive reference. The other employee suggested checking Virgin’s Cabin Crew Policy and Procedures Manual. It was in this manual that they found the “8-hour rule.”

Dismissed for violating company policy

Ultimately, Mr Macnish was summarily dismissed by Virgin for serious misconduct on 1 February 2024. The airline cited two reasons for his sacking. The first was because he had invited a guest to his hotel room after he applied for leave due to fatigue. The second was because he had consumed alcohol within 8 hours of starting a shift.

He had also been investigated for a third allegation – that he had lied about the medical incident on the flight. This allegation, however, was not substantiated. Feeling he had been hard done by, Mr Macnish subsequently lodged an unfair dismissal claim with the Fair Work Commission.

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(Left) Dylan Macnish (Instagram) – Remember that documentation is a tool in the workplace and can help employees and employers alike make sense of difficult situations. If unsure always document what is happening to protect against future issues.

Fair Work took side of flight attendant

At Mr Macnish’s unfair dismissal hearing in August 2024, the Fair Work Commission acknowledged that he had breached Virgin’s policy by drinking a glass of Prosecco.

“However, just because an employee is in breach of a policy, it does not automatically mean that there is a valid reason for the dismissal,” the Commission said.

It was accepted that Mr Macnish was “not sure of the specific detail” of the “8-hour rule.” The Commission noted that the rule was not in Virgin’s drug and alcohol policy, but in another policy manual. It said that it was “reasonable” that he understood the rule to only be a guideline. It found that there was no evidence to suggest that the rule was widely understood by Virgin staff.

The Fair Work Commission further observed that Mr Macnish had self-reported his alcohol consumption to his cabin crew manager. He had also sought clarification on the policy. He had checked the drug and alcohol manual and used a personal breathalyser before starting his shift. These actions demonstrated a proactive effort to comply with safety standards.

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Don’t feel rejected, stand up for yourself, your family and the community. You can fight “the big guy”.

‘Nothing wrong with using dating apps for casual sex,’ Fair Work said

The Fair Work Commission next delt with the allegation that Mr Macnish had abused his fatigue leave. It acknowledged his explanation that he was unable to sleep after dealing with a medical incident during a flight. 

The Commission noted that a Virgin manager had admitted that “if a straight, married man were to have sex with his wife after accessing fatigue, then it would ‘probably not’ be any of Virgin’s business to comment on it.” It also noted that the manager had said it is common for staff who are away from their home city to “use dating apps when they are staying in Virgin-provided accommodation.”

The Fair Work Commission said that “there is nothing wrong with using dating apps for casual sex.” It said that “what happens between informed and consenting adults is their own business, unless it breaches a lawful and reasonable workplace policy.” The Commission further found that Mr Macnish was “genuinely fatigued” when he sought sick leave. It said that it was “clear” that the medical incident did in fact occur and that it had “affected” Mr Macnish.

Worker was reinstated

Based on these findings, the Fair Work Commission ruled that Mr Macnish had been unfairly dismissed. Virgin argued that reinstatement was not appropriate as it would signal to other staff that they could breach the “8-hour rule” and “get away with it”.

However, the Commission noted the “glowing” feedback Mr Macnish had received about his professional conduct. It also acknowledged that he “conducted himself professionally and politely” throughout Virgin’s investigation and dismissal process. It also noted that Mr Macnish had shown “genuine contrition and reflection.”

The Fair Work Commission therefore ordered Virgin to reinstate him to the position of cabin crew manager.

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Reinstatement would not have been possible with Mr Macnish fighting for what he knew was right. Follow in his example if you are in a similar position.

Virgin appealed unfair dismissal decision

A second hearing took place in January 2025 with the Full Bench of the Fair Work Commission. Virgin took issue with the original decision of the Fair Work Commission. The airline argued it had placed took much emphasis on the “subjective understandings, interpretations and recollections” of Mr Macnish and his colleagues with regard to the “8-hour rule.”

Virgin also argued that the Commission had not considered its concerns about reinstating Mr Macnish. It noted that there had been a “fundamental breakdown of trust” in the employment relationship. The airline felt that he could engage in similar behaviour again, which could pose a safety risk.

Full Bench found original decision was right

The Full Bench of Fair Work considered reinstatement and the facts of the case again. It said that it had been “appropriate, and essential” for the original Commissioner to consider Mr Macnish’s understanding of the airline’s policies. This was particularly crucial as the Commission had originally determined Virgin’s drug and alcohol policy did not contain a “blanket prohibition on drinking eight hours prior to duty.”

“Although intention is not a necessary requirement for breach of a workplace policy to constitute a valid reason for dismissal, a knowing and conscious breach… is plainly more likely to constitute a valid reason than a breach which is inadvertent or unwitting,” the Full Bench said.

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Don’t be bullied or harassed, take a stand for what is right.

Fair Work considered reinstatement was appropriate, Full Bench said

The Full Bench also disagreed with Virgin’s claim that it was “manifestly unreasonable or plainly unjust” to reinstate Mr Macnish. It agreed with the Fair Work Commission’s consideration of several factors to come to that decision. This included that Mr Macnish had reasonably believed the “8-hour rule” to be a guideline. It had also factored in that he had been proactive about not violating Virgin’s policies. Also, that he felt sorry for the violation.

The Full Bench said that Virgin’s argument that the Fair Work Commission needed to consider the airline’s concerns about Mr Macnish “is unsound and must be rejected.” It said that Virgin “did not seek to substantiate” these concerns “by leading any evidence.” Virgin’s appeal of the original decision was therefore dismissed by the Full Bench.

Have you been unfairly dismissed?

Our team at A Whole New Approach can help you get reinstatement or compensation. We’ve been helping Australian workers make unfair dismissal claims for over thirty years. We know how the system works and can help you get justice from your employer. Get the outcome that is rightfully yours. Are you a victim of toxic workplace culture, or feel like abandoning your employment call us now.

We offer a no win, no fee service and have a track record helping over 16,000 Australian workers make claims through the Fair Work Commission. Our team can help you get what you deserve. 

Be fast – as you only have 21 days from the date of your dismissal to make a claim. Call us today for a free and private conversation on 1800 333 666. 

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