Virgin Airlines Australia Pty Ltd v Dylan Macnish - [2025] FWCFB 6

[2025] FWCFB 6

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

Virgin Airlines Australia Pty Ltd
v

Dylan Macnish

(C2024/5936)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT SAUNDERS
DEPUTY PRESIDENT SLEVIN

SYDNEY, 14 JANUARY 2025

Appeal against decision [2024] FWC 2154 of Commissioner Lim at Perth on 13 August 2024 in matter number U2024/1853 – Breach of drug and alcohol policy – Employee consumed one glass of prosecco 7.5 hours prior to signing on – “Eight-hour rule” prohibiting consumption of alcohol for a period of 8 hours prior to duty – Employee understood eight-hour rule to be a guideline rather than absolute prohibition – Employee disclosed alcohol consumption to Cabin Crew Manager prior to performing work and consulted DAMP Manual to seek guidance – Whether appropriate to consider an employee’s subjective understanding of workplace policy – Assessment of whether employee’s understanding of policy was reasonable – Whether direct findings of credit as to genuineness of employee’s understanding of the policy should be overturned – Whether self-referral of a breach of policy was relevant where the employee was aware of rumours that he had performed work whilst drunk – Whether order for reinstatement was manifestly unreasonable or plainly unjust – Alleged loss of trust and confidence not soundly based – Permission to appeal granted – Appeal dismissed.

Introduction

Virgin Airlines Australia Pty Ltd (Virgin or the appellant) seeks permission to appeal, and to appeal, a decision of Commissioner Lim of the Fair Work Commission (the Commission).[1] The decision, to reinstate Mr Dylan Macnish, arose from an application for an unfair dismissal remedy made by Mr Macnish under s 394 of the Fair Work Act 2009 (Cth) (the Act).

Mr Macnish was employed as a cabin crew member for Virgin until his dismissal on 1 February 2024. Mr Macnish was dismissed because he consumed one glass of prosecco at a Christmas party for Virgin staff prior to 2:30pm on Sunday 17 December 2023, and then later agreed to perform work on the “red-eye” flight from Perth to Sydney that night. The shift commenced approximately seven and a half hours after he had consumed the glass of prosecco. Mr Macnish was dismissed for breaching Virgin’s so-called “eight-hour rule” in that he consumed alcohol less than eight hours prior to the shift sign-on time.

The Commissioner found that Mr Macnish had breached an aspect of Virgin’s policies containing the “eight-hour rule”, but concluded that, in all the circumstances, there was no valid reason for Mr Macnish’s dismissal. The Commissioner found that Mr Macnish understood the concept of not consuming alcohol eight hours prior to commencing duty was a guideline rather than a rule and that it was not unreasonable for him have understood the policy in that manner. The Commissioner considered other relevant matters, including that Mr Macnish had self-reported his error, the treatment of other employees who had breached Virgin’s drug and alcohol policies, and Mr Macnish’s employment record, and concluded the dismissal was unfair. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWCFB 6
Decision Date: 14 JANUARY 2025

CaseChat Overview and Summary

In the Fair Work Commission appeal of Virgin Airlines Australia Pty Ltd v Dylan Macnish, the Full Bench granted permission to appeal but dismissed the appeal. The case concerned the dismissal of Mr Dylan Macnish, a cabin crew member for Virgin Airlines, for breaching the airline's "eight-hour rule" which prohibits the consumption of alcohol eight hours prior to commencing flight duty. The Commissioner found that there was no valid reason for dismissal and ordered that Mr Macnish be reinstated to his previous position. Virgin Airlines sought permission to appeal and, on appeal, contended that the Commissioner erred in several respects, including by failing to adequately consider Mr Macnish's breach of a safety critical obligation, by considering his subjective understanding of Virgin's policies, and by ordering his reinstatement. The Full Bench found that permission to appeal should be granted because the appeal raised issues of general importance in relation to the relevance of an employee's understanding of workplace policies and the appropriateness of reinstatement. However, the Full Bench rejected all grounds of appeal, finding that the Commissioner had not erred in considering Mr Macnish's subjective understanding of Virgin's policies, that it was reasonable for him to have understood the "eight-hour rule" as a guideline, and that the order for reinstatement was not manifestly unreasonable or plainly unjust.

Orders