An airline steward
Posed by model (Photo: Shutterstock)

A man has successfully won his unfair dismissal case against Virgin Airlines Australia.

“DM” began working for Virgin Australia in July 2022 but was abruptly sacked in February of this year. He lodged a complaint with the country’s Fair Work Commission claiming unfair dismissal. 

Virgin Australia said it fired DM for “professional misconduct.” The airline alleged he turned up for work hungover on a couple of occasions. It also claimed he phoned in to request to be switched to a later flight due to tiredness. 

Following this request, his boss says she checked CCTV of the Virgin-provided hotel where DM was staying and saw him with a male visitor he’d met for a hookup. 

Virgin also says DM knowingly broke rules around alcohol consumption. It points to him drinking a glass of prosecco at a Christmas party 7.5 hours before a shift. 

During his hearing, DM denied turning up for work hungover. He said he did once tell a colleague he was “dusty” but he merely meant he was “tired”.  

Medical incident

Besides the alcohol issue, there was the more complicated one relating to the Grindr hookup. 

Apparently, there was an incident on November 25 during a layover from Perth to Brisbane. A passenger suffered what appeared to be a stroke at the check-in gate and DM helped the passenger in a wheelchair. Whilst doing this, the passenger accidentally urinated on DM’s sleeve.

This was the first time DM had been involved in a major medical incident such as this and it caused him some distress. He was due to fly back to Perth at 8:20 AM the next morning. It was a “paxing” flight, which is when an employee flies as a passenger but is available to work if called upon in an emergency. 

However, DM found it hard to sleep that night in the Virgin-provided hotel. The incident with the passenger continued to play on his mind. Due to his lack of sleep, at around 4:30 AM, hecalled in and asked to be switched to a flight later in the day. He hoped to get some more sleep and be well-rested just in case he was called upon to work on the flight. 

Getting back to sleep

DM admits that around an hour later, at 5:18 AM, he met up with a man he connected with on Grindr and brought him up to his room.

“This was on the basis that having a physical interaction with someone would help him fall asleep,” the Fair Work Commission notes in its ruling. “He met with an individual outside his hotel, and they went up to [DM’s] hotel room. They had sex and [DM] fell asleep shortly after.”

DM’s boss at Virgin, wary of him calling up at 4:30 AM to change flights, suspected he might have been partying. She then decided to request the hotel’s CCTV footage and DM’s swipe card activity. 

After this, he was told he was being investigated for removing himself from rostered duty to engage in “social activities.”

DM admits that finding someone for sex might not be an orthodox sleep aid, but “it is common in the gay community, and it was successful for him”, according to the Commission’s report. 

Christmas party

DM admits he had a glass of prosecco at a work-related Christmas party. He then answered a request for a crew member to join a red-eye flight later that day. DM later contacted his bosses when a rumor circulated in the following days that he’d worked while drunk. He admitted to having the one drink seven and a half hours before the flight (in breach of the airline’s eight-hour rule). 

Virgin pointed primarily to that as its reason for dismissing DM, saying it has a zero approach to alcohol consumption. It used his Grindr hookup, and reports of being hungover, to back up its decision to sack the worker. 

The Fair Work Commission came down in DM’s favor. It called Virgin’s approach to fatigue management “mystifying.” During her cross-examination, DM’s boss, accepted that cabin crew use dating apps whilst on layovers. 

“[She] conceded that if a straight, married man were to have sex with his wife after accessing fatigue, then it would ‘probably not’ be any of Virgin’s business to comment on it,” Commissioner Pearl Lim wrote in her report. “Even if I had been satisfied that there was a valid reason, it was still harsh in the circumstances and thus unfair.”

“I find that the appropriate remedy is reinstatement [to work],” Lim said.

Virgin Airlines Australia has 21 days to respond to the ruling. It may opt to appeal. Last year it successfully appealed against a Fair Work Commission ruling that ordered it to reinstate a cabin crew member that it sacked for napping during a flight. 

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