Initial concerns

Macnish commenced his employment with Virgin on 4 July 2022. His initial weeks with the airline were primarily based on his training – which is referred to as “Ground School” – where new employees are given a run-down on the ins and outs of the job role, as well as the protocol. For example, drug and alcohol management was a topic covered throughout these weeks of training.

The initial concerns exerted by the leader of crew culture at Virgin, Lydia Ridge, began on 27 September 2023, when she began to suspect that Macnish was showing up to work hungover and, on some occasions, allegedly bragging about it.

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Macnish explained that he stated that he was “dusty”, but was using the term to describe himself as tired or not at his best, rather than referring to himself as hungover.

This hunch from Ridges led to a one-on-one meeting between her and Macnish, with Ridges saying that the reason for the meeting was “concerns a co-worker had raised which were that Macnish had come to work hungover on early morning sign-ons”.

Macnish was shocked by these claims, lamenting that “he cared deeply about his job and that had never drunk alcohol within eight hours of attending work”.

The eight hours that Macnish is referring to is a policy that Virgin has in place where employees cannot consume alcohol eight hours before they begin their shift. However, it was established during the proceedings that many workers were unclear on whether this was a legitimate policy or merely a guideline.

Medical incident fallout

On 25 November 2023, Macnish was working a layover from Perth to Brisbane. After disembarkation, crew members were notified of a medical event involving one of the passengers at the gate, who had collapsed. It was believed that the man had a stroke. In Macnish’s evidence, he cited that the crew had to assist the passenger onto a wheelchair; during this, the passenger accidentally urinated on Macnish.

This was the first time Macnish had been involved in a medical incident during his tenure with Virgin. The ordeal took its toll on Macnish, who was affected by the experience. He reached out to family and friends over the phone for comfort.

Macnish was scheduled to fly out again the following morning, but due to the anxiety he was experiencing from the medical incident, Macnish was struggling to sleep. At 4:26am, he contacted Virgin’s rostering support team and notified them that he would be fatigued for the early morning flight. He was moved to the afternoon flight.

After contacting the support team, 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.

Following this situation, on 29 November 2023, Macnish and Ridge had a brief interaction, speaking about the medical incident that transpired a couple of days prior.

Ridges was aware of the situation, as she was notified immediately when Macnish contacted the support team regarding his fatigue. Once again, Ridges was concerned due to Macnish “accessing fatigue” only four hours before the scheduled morning flight. Her concerns led to a request for the CCTV footage of Macnish’s hotel hallway and hotel room swipe card record.

On 12 December 2023, Ridges sent a letter informing Macnish that Virgin was investigating allegations of misconduct on the night of 26 November. Ridges claimed that, firstly, Macnish didn’t remove himself from the roster due to fatigue but instead for “social activities”, citing the CCTV footage of the individual entering and exiting his room.

The second allegation was that Macnish fabricated the medical incident, as there was no recorded input on the safety record of the incident occurring.

Virgin Christmas party

A Virgin Christmas party took place on 17 December 2022, one that Macnish attended. He was not scheduled to work that day, yet he was hesitant to consume alcohol as his friend/colleague wasn’t drinking as he was working later that night. Macnish claimed in his evidence that he consumed one single glass of prosecco while socialising.

He then carried another glass around, merely “as a social crutch”, but did not consume it.

By 2:30pm, Macnish did not consume another drop of alcohol.

Another member of Virgin’s management claimed that Macnish was, in fact, intoxicated, as he was exerting a “lovey dovey” attitude and showed eagerness to go to the next drinking location. Macnish refuted these claims, instead saying that the person making such claims was intoxicated herself.

Macnish did not go to another location after the party; instead, he went home. At 5:30pm, he received a message about a red-eye flight that was short of a cabin crew member. He decided to join his friend/colleague on this flight in an act of support.

Both spoke about the fact that Macnish had consumed an alcoholic drink earlier in the day, but Macnish went through the protocol manual and found that he wasn’t breaching any conduct. His colleague even said words to the effect of, “I’m pretty sure eight hours is just a guideline.”

Macnish joined the cabin crew for this departure; however, the flight was delayed, not leaving until 11:22pm that night.

Rumours began to swirl around the workplace of Macnish being “drunk” during his shift. This forced Macnish to visit the Perth office to clear up the misconceptions of his perceived actions. He initially wanted to see Ridges, but she wasn’t there; however, he explained his full story to a subordinate who could relay the information to Ridges.

Response to the ‘social activities’ allegations

Macnish strongly disagreed with the original allegations that took place after the night of the medical incident. He explained that he was, in fact, fatigued, and he went into more detail explaining the legitimacy of the medical incident that Ridges was calling into question.

He refuted the claim that he was merely changing his roster spot for social activities and explained that he understood that having sex “is not an unorthodox way of falling asleep, however, it is common in the gay community, and it was successful for him”.

On 22 December 2023, he received yet another allegation letter, this time for a drug and alcohol breach, relating to the aftermath of the Christmas party.

Macnish attempted to explain the details of what really happened, but it seemed to have fallen on deaf ears. After a number of meetings, and Macnish trying to defend himself, on 1 February 2024, Macnish was informed that his employment was being terminated due to the allegations.

Consideration

Commissioner Pearl Lim broke the allegations down one by one.

In terms of the initial allegation regarding Macnish’s “social activities”, Lim found Virgin’s approach to the allegation as “mystifying.”

Although the accommodation is supplied for by Virgin, inviting individuals into one’s room is common practice for employees. Ridges herself conceded 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.

She further acknowledged that it was a common practice for employees to use dating apps: “There is nothing wrong with using dating apps for casual sex. What happens between informed and consenting adults is their own business, unless it breaches a lawful and reasonable workplace policy.”

Therefore, Lim didn’t believe that Macnish breached any protocol in this allegation, saying: “Even if I had found that Macnish had breached it, given that he was genuinely fatigued and the fact that using dating apps while in Virgin-provided accommodation is common practice, I would not have found that it gives rise to a valid reason for dismissal.”

In terms of the drug and alcohol allegations, Lim said: “If I had been satisfied that Macnish’s breach of the A4 Rule constituted a valid reason for dismissal, I still would have reached the view that his dismissal was harsh.”

Macnish simply didn’t go to the Christmas party, drink alcohol, and then show up to a shift, as Lim explained: “He was not rostered on at the time he attended the Virgin Christmas Party; he had one drink 7.5 hours before his scheduled sign-on; he checked with his manager; he checked the DAMP Manual; he breathalysed himself; and he was compliant with the DAMP Manual and CASA Regulations at the time he commenced his duty.”

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.