The Fair Work Commissions in Australia has recently ordered Virgin Australia to reinstate an aircrew employee after he had been dismissed earlier this year after being accused of being on duty in breach of Virgin Australia’s drug and alcohol policies and using a Dating App to have casual sex after asking for a roster change due to fatigue. The case raises serious questions about workplace surveillance and whether employees have a right to a private life while in their work provided hotel room during a work-related trip.
Dylan Macnish was dismissed after two separate incidents in 2023. It was not disputed that Mr Macnish’s performance at work was of a high standard. He had “glowing” feedback from Cabin Crew Managers.
One incident involved Mr Macnish drinking a glass of sparkling wine at a work Christmas party seven and a half hours before he was due to work. This was said to be in breach of the airline’s polices that provide that cabin crew members are not allowed to consume alcohol within eight hours of being on duty.
The Fair Work Commission’s decision found that Mr Macnish had breached the Virgin Australia policy as he had drunk the glass of prosecco 7.5 hours prior to his sign-on but it noted that 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 circumstances must be considered.
Mr Macnish was concerned that he could be in breach of the airline’s policy. He asked a Manager at the party for his views on whether he should turn up for duty. The Manager said that if in doubt he should look at the policies. Mr Macnish did and came to the view that he could go on duty. He also took the precaution of self-testing with a personal breathalyser, which returned a zero reading. The Commission concluded that the policies on drinking before duty were confusing. The sections on layover and duty travel are worded in such a way that it contemplates situations where a Virgin employee could be permitted to drink alcohol within eight hours of a duty.
The other incident involved Mr Macnish’s request to be moved to an afternoon flight rather than returning to Perth on a rostered earlier flight. Mr Macnish relied on the airline’s fatigue policy; saying that he had not been able to sleep after his previous flight as he had assisted with a medical incident with a passenger who had become unwell and had accidentally wet himself and Mr Macnish as he tried to assist the passenger. During Mr Macnish’s extended “layover” at the Brisbane hotel he arranged a hookup on the gay dating app Grindr in the early hours of the morning.
In the course of the investigation the airline requested CCTV footage of Mr Macnish’s hotel hallway and his room swipecard records. The footage showed him leaving his room at 5.13am and returning with a guest five minutes later. The guest then left at 9.00am. Virgin argued that Macnish had requested the roster change to engage in “social activities”.
The Fair Work Commission’s decision said that Virgin Australia’s conduct when investigating the hotel incident was “mystifying.” The Commission noted that it was not unusual for friends or family to stay with staff in hotels. In fact it had been acknowledged by a Manager that it was common practice for employees staying in Virgin-provided accommodation on layovers to use dating apps. The Manager had also conceded that if a straight, married man were to have sex with his wife after accessing the fatigue policy then it would ‘probably not’ be any of the airline’s business to comment on it.
The issue of how Virgin Australia accessed the CCTV footage and room swipecard information from the hotel was not addressed in the Commission’s decision. Australia has similar privacy laws to New Zealand. Unless there has been some informed consent by Mr Macnish to disclosure it is likely that his privacy has been breached by the hotel. Virgin Australia would also require a very explicit “workplace surveillance” policy that effectively provides that employees can be monitored in their “temporary residence” while being required to work away from home.
There may be occasions when an employee’s privacy in relation to their personal off-duty activities could be outweighed by the employer’s health and safety obligations. While it could be argued that airlines have a greater interest in a worker’s off-duty conduct in safety-sensitive positions than other employers, the information should be used legitimately for workplace safety and in a non-discriminatory way. It should not make any difference if Mr Macnish was a “straight, married man.” Read more.....