A man has successfully won his lawsuit against Virgin Airlines Australia for unfair dismissal.
“DM” started working at Virgin Australia in July 2022 but was abruptly fired in February this year. He filed a complaint with the country’s Fair Work Commission, claiming the dismissal was unfair.
Virgin Australia said it fired DM for “professional misconduct.” The airline claimed he turned up to work hungover on several occasions and claimed he phoned to request a later flight because he was tired.
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When DM complied with this request, his boss reportedly checked the CCTV at the Virgin-provided hotel where DM was staying and saw him with a male visitor he had met for flirting purposes.
Virgin also claims DM knowingly broke alcohol consumption rules, suggesting he drank a glass of Prosecco at a Christmas party 7.5 hours before his shift.
During his hearing, DM denied coming to work hungover. He said he once told a co-worker he was “dusty,” but he simply meant he was “tired.”
Medical incident
In addition to the alcohol question, there was also the more complicated question related to the Grindr date.
On November 25, an incident reportedly occurred during a stopover from Perth to Brisbane. A passenger apparently suffered a stroke at the check-in gate and DM helped the passenger in a wheelchair. The passenger accidentally urinated on DM’s sleeve.
This was the first time DM had been involved in a medical incident of this kind and it caused him some distress. He was due to fly back to Perth at 8.20am the next morning. It was a “paxing” flight, where a member of staff flies as a passenger but is available to work in an emergency.
However, DM was unable to sleep well that night in the hotel provided by Virgin. The incident with the passenger was still on his mind. Due to his lack of sleep, he called at around 4:30 a.m. and asked to be rebooked on a flight later in the day. He hoped to get some more sleep and be rested in case he had to work during the flight.
Fall asleep again
DM admits that about an hour later, at 5:18 am, he met a man he met on Grindr and took him to his room.
“This was done on the basis that physical interaction with someone would help him to sleep,” the Fair Work Commission found in its judgment. “He met a person outside his hotel and they went to (DM’s) hotel room. They had sex and (DM) fell asleep shortly afterwards.”
DM’s boss at Virgin was suspicious because he called at 4:30am to change flights and suspected he might have been partying. She then decided to request the hotel’s CCTV footage and DM’s swipe card activity.
He was then informed that he was being investigated for evading his duty schedule to engage in “social activities.”
DM admits that looking for someone for sex may not be a conventional sleeping aid, but “it is common in the gay community and it was successful in his case,” the commission’s report says.
Christmas party
DM admits to drinking a glass of Prosecco at a work-related Christmas party. Later that day, he responded to a crew member’s request to take a night flight. DM later contacted his bosses when rumors circulated in the days following that he had worked drunk. He admitted to drinking the one drink seven and a half hours before the flight (which is a breach of the airline’s eight-hour rule).
Virgin cited this as the main reason for firing DM, saying that the company has no control over alcohol consumption. The company cited his Grindr contacts and reports of his hangovers as the reason for firing the employee.
The Fair Work Commission ruled in DM’s favour, calling Virgin’s approach to dealing with fatigue “puzzling”. During her cross-examination, DM’s boss admitted that cabin crew use dating apps during stopovers.
“(She) acknowledged that it was ‘probably not’ Virgin’s business to comment on a heterosexual married man having sex with his wife after exhaustion,” Commissioner Pearl Lim wrote in her report. “Even if I had been satisfied that there was a valid reason, it was still harsh and therefore unfair in the circumstances.”
“I am of the opinion that the appropriate remedy is reinstatement (to work),” Lim said.
Virgin Airlines Australia has 21 days to respond to the ruling, and may choose to appeal. Last year, it successfully appealed a Fair Work Commission ruling that required it to reinstate a cabin crew member it had fired for taking a nap during a flight.
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