Virgin Airlines Australia Pty Ltd v Dylan Macnish - [2024] FWC 2333

[2024] FWC 2333

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

SYDNEY, 2 SEPTEMBER 2024

Appeal against decision [2024] FWC 2154 of Commissioner Lim at Perth on 13 August 2024 in matter number U2024/1853 – stay application – stay against order for reinstatement – stay refused.

Introduction

Virgin Airlines Australia Pty Ltd (Virgin or the appellant) has filed a notice of appeal in relation to a decision of Commissioner Lim of the Fair Work Commission (the Commission) handed down on 13 August 2024. The Commissioner ordered that Dylan Macnish (Mr Macnish or the respondent) be reinstated within 21 days of the order being made. The reinstatement order is required to be complied with on or before 3 September 2024. In the notice of appeal, Virgin seeks a stay of the reinstatement order. This decision concerns the stay application. A hearing in relation to the stay application was conducted on 30 August 2024.

The decision under appeal concerned an application for an unfair dismissal remedy made by Mr Macnish under s 394 of the Fair Work Act 2009 (Cth) (the Act) filed on 20 February 2024. Mr Macnish was employed as a Cabin Crew Member for Virgin until his dismissal on 1 February 2024. As the Commissioner described, Mr Macnish was dismissed after he had one glass of prosecco at a Christmas party for Virgin staff 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.

Mr Macnish was dismissed because his consumption of alcohol breached the “8-hour rule” set out in Virgin’s “A4 Manual” that cabin crew should abstain from alcohol for a minimum of 8 hours before commencing duty. The “A4 Manual” refers to “Volume A4: Cabin Crew Policy and Procedures Manual” which is several hundreds of pages long and represents the manual for cabin crew members covering a comprehensive list of topics. Virgin also has a “Drug and Alcohol Management Program” referred to as the “DAMP Manual”, the purpose of which is described as to “consolidate the policy and processes relating to the management of alcohol and other drugs in the workplace”. The Commissioner found that the DAMP Manual does not contain a blanket prohibition on drinking eight hours prior to duty.

In the disciplinary process which preceded Mr Macnish’s dismissal, three allegations of misconduct were advanced. Allegations 1 and 2 arose from an earlier incident in which it was alleged that Mr Macnish had failed to comply with Virgin’s Fatigue Risk Management System (FRMS) Manual by removing himself from rostered duties on grounds he was fatigued and subsequently inviting a guest to his room. It was also alleged he was dishonest when questioned about this incident. The allegation of dishonesty was found not to be sustained and, although the allegation of a failure to comply with…

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: [2024] FWC 2333
Decision Date: 2 SEPTEMBER 2024

CaseChat Overview and Summary

The case of Virgin Airlines Australia Pty Ltd v Dylan Macnish involved an appeal by Virgin Airlines against a decision of the Fair Work Commission, which ordered the reinstatement of Mr Macnish within 21 days. The appeal sought a stay of the reinstatement order pending the outcome of the appeal. The hearing on the stay application was conducted on 30 August 2024. Mr Macnish was dismissed by Virgin Airlines for breaching an 8-hour rule set out in the Cabin Crew Policy and Procedures Manual, which required cabin crew to abstain from alcohol for at least eight hours before commencing duty. The Commissioner found that Mr Macnish had breached this rule by consuming alcohol 7.5 hours before his shift, but also found that it was reasonable for Mr Macnish to understand the rule as a guideline rather than a strict requirement. The Commissioner concluded that Mr Macnish’s dismissal was unfair and ordered his reinstatement. Virgin Airlines sought a stay of the reinstatement order pending the appeal, proffering an undertaking to pay Mr Macnish's wages plus interest if the appeal was unsuccessful. The court considered the principles applicable to the grant of a stay, which include demonstrating an arguable case on appeal and that the balance of convenience favours a stay being granted. The court found that Virgin Airlines had an arguable case on appeal but that the balance of convenience did not favour a stay being granted, as there would be significant prejudice to Mr Macnish if a stay was granted. The application for a stay was therefore refused.

Orders