A Virgin cabin crew member who was sacked for drinking a glass of Prosecco almost eight hours before a shift and for having casual sex after he’d requested a later start time due to tiredness has won his claim for unfair dismissal.

In an unfair dismissal claim lodged with the Fair Work Commission it was revealed Dylan Macnish, who is based in Perth and started working for Virgin in July 2022, was sacked from his cabin crew role in February over a series of allegations levelled by the airline between September and December last year. 

It was alleged Mr Macnish had turned up to work hungover on several occasions and had once met up with someone for an early morning sex session after removing himself from rostered duty while staying in Virgin-provided hotel accommodation.

In evidence to the hearing he was also accused of breaching Virgin’s rules around alcohol consumption after drinking a glass of Prosecco at the work Christmas party seven-and-a-half hours before a shift. 

But in a judgment published last week, Commissioner Pearl Lim upheld Mr Macnish’s claim, finding some of Virgin’s reasons for sacking him were ‘mystifying’ and ordering the airline to reinstate him. 

In September last year, the Commission heard, a colleague shared their concerns with management that Mr Macnish had allegedly come to work worse for wear on two occasions and had even been boasting about being hungover.

Mr Macnish denied this during the Fair Work hearing.

Instead, he claimed that he had used the word ‘dusty’ to describe himself during an early morning flight, which he took to mean he was ‘tired’ and not on his best form, according to the judgment. 

The hearing heard evidence of a second ‘medical incident’ on 25 November during a layover from Perth to Brisbane.

Cabin crew were told that a man had suffered a suspected stroke at the gate desk and Mr Macnish helped move the passenger into a wheelchair, the judgement stated. 

But, while doing this, the man accidentally urinated on Mr Macnish’s sleeves, an incident that left him distressed and upset. 

He had been due to fly back to Perth on a ‘paxing’ flight at 8.20am the following day, whereby a member of cabin crew travels back as a passenger. 

These flights are still considered duty as there is the possibility they will get called up to work. 

However, Mr Macnish claimed he could not fall asleep in his Virgin-provided hotel room due to anxiety stemming from the incident. 

At 4.26am, he rang Virgin’s rostering team to tell them he would be too tired for his flight and they moved him to a flight that afternoon.

Less than an hour after hanging up, he met up with someone he had been speaking to on the Grindr dating app and brought them back to his hotel room at 5.18am, the judgement outlined.

‘This was on the basis that having a physical interaction with someone would help him fall asleep,’ Commissioner Lim wrote.

‘He met with an individual outside his hotel, and they went up to Mr Macnish’s hotel room. They had sex and Mr Macnish fell asleep shortly after.’

His boss Lydia Ridge, leader of Crew Culture at Virgin, had concerns that he had been out partying because he had ‘accessed fatigue’ less than four hours before he was due to sign-on.

She requested CCTV footage of Mr Macnish’s hotel hallway and his hotel room swipe card record, the Fair Work decision revealed. 

On 12 December, Ms Ridge sent Mr Macnish a letter informing him that Virgin was investigating two allegations of misconduct.

Firstly, they denied the urinating incident took place and secondly, they claimed he had removed himself from rostered duty to engage in ‘social activities’. 

Mr Macnish acknowledged that while having sex is perhaps not an orthodox method of falling asleep, ‘it is common in the gay community, and it was successful for him’, the report stated. 

Five days later, on December 17, Mr Macnish attended the Virgin Christmas Party at the Como Lawn Bowl Club in South Perth around 2pm.

The hearing heard from a colleague who testified Mr Macnish appeared to be under the influence of alcohol because he was acting ‘lovey dovey’ and seemed keen to continue the festivities at a nearby pub. 

But Mr Macnish said he only had one glass of Prosecco and was home by around 4.30pm.

An hour later, he was told that a cabin crew member was needed for a red-eye flight that evening with a sign-on time of 10.55pm.

Mr Macnish wanted to take the job but found himself in ‘uncharted territory’ as he had never had a drink within eight hours of a flight before.

Virgin states that cabin crew members cannot have a drink within eight hours of their rostered shifts. 

Mr Macnish said he thought this was a guideline rather than a hard-and-fast rule.

He claimed he then used a personal breathalyser which returned a blood alcohol reading of zero per cent.  

Despite this, a rumour circulated the following week that he had flown while drunk, the report outlined.

Mr Macnish attempted to clear this up by alerting management that he had consumed a glass of Prosecco within the eight-hour window.

Virgin stood him down on December 20 and terminated his employment in February, citing all three alleged incidents as cause.

However, Commissioner Lim heavily criticised the airline, labelling its approach to the fatigue management issue ‘mystifying’.

‘During Ms Ridge’s cross-examination, Ms Ridge 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 Lim wrote. 

‘Ms Ridge also acknowledged that it is common practice for Virgin employees who are on layovers or who are working in other cities away from their home base to use dating apps when they are staying in Virgin-provided accommodation.

‘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.’

Commissioner Lim found that there was ‘no valid reason for Mr Macnish’s dismissal’. 

‘Even if I had been satisfied that there was a valid reason, it was still harsh in the circumstances and thus unfair,’ she concluded.

‘I find that the appropriate remedy is reinstatement (to his role as cabin crew member).’

Daily Mail Australia understands that Virgin Airlines is reviewing the decision and considering its options. It has 21 days to respond.   

Mr Macnish was approached for comment.