Virgin Atlantic Forced To Rehire Gay Crew Member Following Termination

Australia-based airline Virgin Atlantic was ruled by the Fair Work Commission in the country to reinstate a cabin crew member who was previously fired following a "Grindr hookup" while on "fatigue leave". The tribunal found that the airlines had "no valid reason" to terminate the employee.

"None Of The Employer's Business"

Dylan Macnish, a male cabin crew member managed to get his job back at Virgin Atlantic following intervention from Australia's Fair Work Commission. 

After a stressful shift one day in November 2023, Macnish had asked to be placed on "fatigue leave". This shift allegedly involved dealing with a passenger who had suffered a stroke and unintentionally urinated on Macnish. Macnish was granted this leave.

Later that night, he checked out of a Brisbane hotel and used the gay dating app Grindr on his phone to "hook up" with and sleep with another man. According to reports, Macnish wanted help falling asleep with "physical interaction". The following day, Macnish returned to work without any trouble.

However, personnel at Virgin Atlantic retrieved CCTV footage inside the hotel as well as room key card records. In light of what personnel noticed, Macnish was terminated shortly thereafter, stating that he breached the company's fatigue policy.

Legal experts have argued that the airline has invaded the privacy of one of its employees by obtaining the hotel's footage and card records. 

“There might be issues under the Privacy Act, certainly for the hotel in terms of the material that it’s collected, the personal information and people that have been filmed on the CCTV footage, and it might be said that the swipe card record also contains the applicant’s personal information as well,” said legal expert Patrick Turner.
 

Swinburne University law professor Dr. Jacqueline Meredith also chimed in, arguing that nothing Macnish did violated company policy and was fired for what he was doing off-duty and in private.

“Even though it is not enforceable as a separate legal right, it has been explicitly recognized by Australian courts and industrial tribunals that employees enjoy a right to private life which must be considered when determining if there is a ‘valid reason’ for dismissal related to off-duty conduct.”

A Firing Overturned

Commissioner of the Fair Work Commission Pearl Lim overturned Macnish's firing from Virgin Atlantic. The airline must rehire Macnish or possibly face a larger legal ordeal from the employee. Lim cited that Virgin's conduct for delving into the employee's private life was "mystifying", and argued that if Macnish were married and straight that Virgin wouldn't have taken any action had he slept with a woman while on a fatigue leave.

“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,” Lim added.
 

Virgin Atlantic added that Macnish also broke another company rule at a work Christmas party by drinking wine seven-and-a-half hours before his shift, despite the rule stating that cabin crew members "could not consume alcohol within eight hours of being on duty". Lim argued that this rule was merely "a guideline" and did not lead to any violations of company policy or grounds for termination.

The Victorian Trades Hall Council made a statement following the ruling:

"Employers are not agents of law enforcement, psychiatrists or priests – the private lives of working people are none of their business.”
 

Virgin Atlantic did not respond to media inquiries regarding the commissioner's decision.