Alcohol, workplaces and fair work cases

These passages from an unfair dismissal decision of the Fair Work Commission contain a very considered analysis of the complicated relationship between alcohol and the woprkplace.

“1. What is this decision about?

[1] Mr Dylan Macnish is a former Cabin Crew Member for Virgin Airlines Australia Pty Ltd (Virgin). This decision is about Virgin’s decision to dismiss Mr Macnish after he had a glass of prosecco at the Christmas party for Virgin staff on Sunday 17 December 2023, and then signed up for a red-eye flight that commenced 7.5 hours after he had the glass of prosecco.

[2] Virgin’s position is that it has a zero-tolerance approach to the consumption of alcohol and there is a clear rule that Cabin Crew Members are not allowed to consume alcohol within eight hours of commencing duties. Virgin says that Mr Macnish knew about this rule and knowingly breached it. Virgin asserts that Mr Macnish’s behaviour is a sufficient valid reason that justifies his dismissal, but that if I am not convinced, Virgin also relies on what it says are prior issues with Mr Macnish and Virgin’s fatigue management policy. Specifically, Virgin says that Mr Macnish breached the fatigue management policy by having sex after he requested that a rostered duty be rescheduled due to fatigue.

[3] Mr Macnish says that Virgin’s policies on the consumption of alcohol before commencing duties were not clearly communicated or set out. This is due to Virgin’s confusing management of directives on drugs and alcohol across its policy documents. Further, that he took several reasonable steps to ascertain whether he could sign up for the red-eye shift including consulting with the relevant Cabin Crew Manager, checking Virgin’s Drug and Alcohol Management Program Manual and breathalysing himself. Mr Macnish also contests Virgin’s reliance on prior issues relating to Virgin’s fatigue management policy.

[4] I held a hearing to determine the matter on Tuesday 21 and Wednesday 22 May 2024. I granted permission to Mr T Dixon of Counsel to represent Mr Macnish and to Mr N Ellery of Counsel to represent Virgin.

[5] Both parties provided a wealth of evidence and documentation in support of their cases. I do not recite every detail. However, I have considered all the relevant evidence, and I also acknowledge the significance of the evidence and events to the people involved.

[6] Having considered the relevant evidence and submissions of the parties, I find 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. I find that the appropriate remedy is reinstatement.

[7] My detailed reasons follow.

…………………………………….

Consideration

[108] Section 385 of the Act provides that:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(d) the dismissal was not a case of genuine redundancy.

[109] There is no contest, and I find that:

a) Mr Macnish had completed the minimum employment period and was covered by the Virgin Australia Cabin Crew Agreement 2021. He was protected from unfair dismissal under s 382 of the Act;

b) Mr Macnish filed his unfair dismissal application within time;68

c) Virgin was not a small-business employer within the meaning of the Act; and

d) The dismissal was not a case of genuine redundancy.

[110] Section 387 of the Act requires me to consider set criteria in determining whether Mr Macnish’s dismissal was harsh, unjust or unreasonable. I set out my consideration below.

5.1 Section 387(a) – was there a valid reason for dismissal?

[111] A valid reason is one that is “sound, defensible or well-founded”69 and should not be

“capricious, fanciful, spiteful or prejudiced”.70

Allegation 3 – what was the policy?

[112] I accept that aviation is a highly regulated industry (and for good reason). I also accept that Cabin Crew Members perform safety-critical functions and that there are strong and valid reasons why Cabin Crew Members must always have a BAC level of 0.02% as reflected in the CASA Regulations. Virgin’s A4 Rule that Cabin Crew Members must abstain from drinking alcohol eight hours prior to sign-on is more cautious compared to the relevant CASA Regulations that Cabin Crew Members must refrain from drinking alcohol eight hours prior to take-off. I do not find this to be unreasonable, and I find that Mr Macnish was in breach of the A4 Manual by drinking the glass of prosecco 7.5 hours prior to his sign-on.

[113] However, just because an employee is in breach of a policy, it does not automatically mean that there is a valid reason for the dismissal. The circumstances must be considered. I note and agree with Virgin’s reliance on the Full Bench case of Sydney Trains v Hider,71 where the Bench noted that not every established breach of a requirement of workplace policy will constitute a valid reason for dismissal.72

Allegation 3 – what did Mr Macnish know?

[114] As detailed at [37], I find that Mr Macnish did take away from the Ground School a general understanding that you should not drink alcohol eight hours prior to a duty and understood that Virgin took a zero-tolerance stance to drugs and alcohol, such as requiring a BAC level of 0.00% at sign-on. I similarly accept Virgin’s evidence and submissions that during the meeting with Ms Ridge on Wednesday 11 October 2023, Mr Macnish’s words conveyed that he understood that he should not drink alcohol eight hours prior to a duty.

[115] I accept Mr Macnish’s evidence that he had not been in the situation of drinking alcohol prior to a duty before, and that he was not sure of the specific detail of the 8-hour Rule.

[116] I find that it was not unreasonable for Mr Macnish to have understood the concept of not drinking eight hours prior to a duty as a guideline, and that Virgin had specific rules with greater detail in written policy.

[117] As much as Virgin asserted that their eight-hour prohibition on alcohol prior to duty was clear and understood, the evidence did not support this. The evidence from all the witnesses is that at Virgin, ‘DAMP’ and the 8-hour Rule are often referred to generally, which fails to capture the nuance that the drug and alcohol policies are spread out over multiple manuals and that there are different policies that refer to the concept of ‘eight hours’.

[118] Mr Timbs’ evidence is that he shared Mr Macnish’s understanding that the 8-hour Rule was a guideline, and not a hard rule. Mr Timbs gave evidence that on Monday 11 March 2024 he attended Cabin Manager conversion training in Brisbane with nine other recently promoted Cabin Managers. There was a discussion regarding DAMP testing, where Mr Timbs told the class that “even if a [Cabin] Crew Member has consumed one drop of alcohol 7 hours and 59 minutes prior to a duty, they are still breaching a DAMP policy in the A4 Manual that is not listed in the DAMP [M]anual. It’s not a guideline, it’s a rule”.73

[119] Mr Timbs’ further evidence is that Ms Scott said that it was a guideline, because everyone breaks down alcohol differently. Ms Scott rebutted Mr Timbs’ evidence – she recalls saying words to the effect that the 8-hour Rule is a rule, and considerations should be made as the eight-hour timeframe is a minimum cut off and some team members should abstain from consuming alcohol more than eight hours prior to sign-on, depending on the circumstances.74

[120] Mr Harrison-Frederick in cross-examination agreed that Ms Scott said words to the effect of, “it is not a rule” and “it is a guideline” when referencing the 8-hour Rule.75 However, he understood it in the context of Ms Scott explaining how people metabolise alcohol.76 I find that the conflicting evidence around this conversation highlights the lack of nuanced understanding of how Virgin’s drug and alcohol policies are structured and communicated.

[121] Mr McEwen was not called to give evidence, but it was accepted that he clearly thought that Mr Macnish was not in breach of any policies.77

[122] I appreciate that the shared understanding of three people do not make a general rule. However, Mr Timbs and Mr McEwen would have gone through similar – if not the same – training as Mr Macnish, and exposed to the same communications in the workplace. This supports a finding that Mr Macnish did not understand that the 8-hour Rule was more than a guideline.

[123] Ms Ridge referred to slide notes from Mr Macnish’s first day of Ground School which emphasised that if a Cabin Crew Member was ever in doubt about the DAMP Manual, they should check. Mr Macnish did this. He checked with the relevant Cabin Crew Manager, Mr McEwen. Mr McEwen gave his view that he thought Mr Macnish was in the clear and told Mr Macnish to check the DAMP Manual. Mr Macnish did so. Mr McEwen is a Cabin Crew Manager and Mr Macnish was entitled to rely on Mr McEwen’s guidance.

[124] I find that even if Mr Macnish understood that the 8-hour Rule was more binding than a guideline, it was not unreasonable for him to think that the details of the rule would be set out in the DAMP Manual.

Allegation 3 – how should the DAMP Manual be interpreted?

[125] I find it is reasonable that an employee would look at the DAMP Manual and conclude that it contains what they need to know about Virgin’s rules concerning drug and alcohol consumption. Aviation is a highly regulated industry. Everything is spelled out and captured in regulations, plans, policies and manuals. The DAMP Manual expressly states that it applies to all Virgin employees and that it is a consolidation of Virgin’s policies and procedures regarding the management of alcohol and drugs in the workplace. This tells employees that the DAMP Manual combines all of Virgin’s drug and alcohol management policies and procedures. This is supported by how the DAMP Manual refers to duty travel and layovers, which do not apply to all Virgin employees.

[126] I also note that in the ‘Fitness for work and duty’ or ‘Work-related activities’ sections in the DAMP Manual it does not advise employees to check their relevant operating manual.

This contrasts with the sections on ‘Duty Travel’ and ‘Layovers’, which set out the relevant rule and tells staff to check the relevant operating manual.

[127] I find that based on the wording of the DAMP Manual, it was reasonable for Mr Macnish to think that everything he needed to know about Virgin’s approach to drugs and alcohol was contained in the DAMP Manual. This is supported by the evidence that when Virgin’s witnesses such as Ms Ridge spoke to Mr Macnish about being ‘DAMP compliant’, they were referring to the DAMP Manual and did not mention the A4 Manual.

[128] I agree with Mr Macnish that there is no blanket prohibition on drinking eight hours prior to duty in the DAMP Manual, and that the layover and duty travel sections did not apply to his situation.

[129] Confusingly, the sections on layover and duty travel are worded in such a way that it contemplates situations where a Virgin employee could be permitted to drink alcohol within eight hours of a duty. This was acknowledged by Ms Ridge during her cross-examination.78 Ms Ridge also conceded that a person could be compliant with the DAMP Manual but not be compliant with the A4 Manual. Ms Ridge’s evidence is that the A4 Manual would take precedence but could not explain why.79

[130] Virgin submits that Mr Macnish’s circumstances were very similar or analogous to a layover or duty travel situation. It therefore should have been obvious to Mr Macnish that if the DAMP Manual explicitly bans drinking within eight hours of commencing duties in a layover or duty travel scenario, then the same rule should apply to him in his circumstances.80 I am not persuaded by this. If the rules on layover and duty travel were meant to apply more broadly, then it would say it in the DAMP Manual.

[131] During closing submissions, Counsel for Virgin asserted that regardless of whether the 8-hour Rule was in the A4 Manual or the DAMP Manual, it was still a rule that Virgin is entitled to expect compliance with. Counsel gave the example of where if a company had no written policies, then they would be entitled to rely on verbal directives.81 I am not persuaded by this example. Virgin is not in the situation of a company with no written policies. As noted above, aviation is highly regulated industry with a high level of written regulation and policies. It is reasonable for employees in the aviation industry to think that they can rely on written policies.

[132] In this case, there were verbal discussions about the 8-hour Rule, which were generally in the context of being ‘DAMP compliant’. When Mr Macnish had questions, he checked the DAMP Manual. This is entirely reasonable. Given what the DAMP Manual says about consolidating Virgin’s drug and alcohol management policies, it is also reasonable for Mr Macnish to think that what is in the DAMP Manual takes precedence, rather than anything conveyed verbally.

[133] In summary, though Mr Macnish was in breach of the A4 Rule, I find in the circumstances that it was not a valid reason for dismissal.

[134] For completeness, I address Ms Ridge’s evidence regarding two related matters to Allegation 3:

(a) Issues of Mr Macnish turning up to work hungover: Virgin did not call Ms Stewart, the Cabin Crew Member who emailed Ms Ridge, to give evidence around her concerns that Mr Macnish had turned up to work hungover. As her evidence could not be tested and is in dispute, I do not rely on it.

(b) French incident: In Ms Ridge’s evidence she cites that Mr Macnish had an ‘apparent incident’ in France in June 2023 where Mr Macnish had to attend a French hospital suspected alcohol poisoning. Mr Macnish explained that his drink had been spiked. Ms Ridge clearly did not believe this and said that “this information does tend to suggest a pattern of behaviour in relation to alcohol use”.82 Ms Ridge did not give any evidence that she had investigated this incident.

Mr Macnish provided a cogent explanation of what occurred. He provided names of the Virgin staff he was with and explained that they had spent the day in Paris during their time off. Mr Macnish had drunk during the day but had also been eating. After having a drink at a bar, Mr Macnish became unusually unwell and went to a hospital. When Mr Macnish returned back to Perth, he saw a GP who gave the opinion that it was likely his drink had been spiked with liquid ketamine. Mr Macnish provided his GP’s medical certificate to Virgin.83 Mr Macnish was not cross-examined on this evidence. I accept Mr Macnish’s account in this regard.

Allegation 1

[135] Though Ms Lokys did not rely on Allegation 1 as a reason for dismissal (though she did consider it overall as a pattern of Mr Macnish’s behaviour), Virgin relies on Allegation 1 as a valid reason for dismissal. I agree with Ms Lokys’ sentiments in the termination letter detailed in [107] of this Decision: I do not find that Mr Macnish’s actions on Sunday 26 November 2023 constitute a valid reason for dismissal.

[136] I must admit that I found Virgin’s approach to Allegation 1 and the fatigue management issue on Sunday 26 November 2023 mystifying.

[137] During Ms Colson’s cross-examination, she acknowledged that Cabin Crew Members can bring friends and family to stay with them in their Virgin-provided accommodation.84 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.85

[138] 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.86 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.

[139] I find that Mr Macnish was genuinely fatigued the night of Saturday 25 November 2023. I accept his evidence of the medical incident and how it affected him. I found Ms Ridge’s approach to this matter difficult to understand. It seemed clear that the medical incident did occur. It is not unreasonable that a staff member would be affected by it, yet Ms Ridge found that Mr Macnish was not genuinely fatigued.

[140] Ms Ridge also brought Allegation 2 against Mr Macnish, based on a short conversation in passing. It would have been reasonable and expected for Ms Ridge to speak with Mr Macnish once she read the safety incident report from Saturday 25 November 2023 to clarify any discrepancies, rather than going straight to levelling a formal allegation.

[141] Section A.2.4 of the FRMS Manual provides that staff must refrain from knowingly misusing or manipulating fatigue management entitlements, such as by carrying out social activities during a fatigue period. Putting to one side the question of whether sex is a social activity, I find that Mr Macnish did not access fatigue for the purpose of having casual sex; he accessed it because he was affected by the medical incident, and he had not been able to sleep. I accept that he engaged in casual sex to go to sleep. Whilst that may not be the way that everyone chooses to help them fall asleep, it does not mean that Mr Macnish was manipulating or misusing the fatigue entitlement.

[142] The only part that I find concerning is the safety aspect of meeting a stranger late at night and then inviting them back to your accommodation. Mr Macnish should have had more regard for his personal safety. However, I accept that Mr Macnish’s thinking was clouded by the recent medical incident and his fatigue. I also note that it would be unfair of Virgin to have disciplined Mr Macnish just for inviting a stranger into his accommodation given the evidence that it is a common practice amongst staff.

[143] I am not persuaded that Mr Macnish breached the FRMS Manual on Saturday 25 November 2023. Even if I had found that Mr Macnish had breached it, given that he was genuinely fatigued and the fact that using dating apps while in Virgin-provided accommodation is common practice, I would not have found that it gives rise to a valid reason for dismissal.

Other matters

[144] For completeness, I note that Virgin drew attention to Mr Macnish accessing fatigue regularly, including three times in a three-month period. During re-examination, Mr Macnish explained that he had COVID-19 at the time.87 During Ms Ridge’s cross-examination, she conceded that it was not unusual that someone recovering from COVID-19 would access fatigue more frequently.88 In those circumstances, I do not find anything alarming about Mr Macnish’s history of accessing fatigue.

[145] Virgin also drew attention to instances where Mr Macnish had attended work late. In Mr Macnish’s circumstances, I do not find that this constitutes a valid reason for dismissal.

4.2 Section 387(b) and (c) – notification of valid reason and opportunity to respond

[146] An employee protected from unfair dismissal should be notified of the reason to terminate their employment before the decision to dismiss is made.89 Failure to do so impacts on their ability to respond to that reason before the decision to terminate is made.90

[147] Virgin broadly put its reasons for dismissal to Mr Macnish for him to respond to.

However, there were elements that were not put to Mr Macnish, such as:91

(a) that he deliberately commenced his duty despite knowing that he was in breach of the

8-hour Rule;92

(b) that Virgin has a zero-tolerance approach to breaches of its drug and alcohol policies;

(d) specifics regarding the conversation he had with Ms Ridge on Wednesday 11 October 2023.

[148] Virgin submits that the investigative and show cause processes were careful and considered and all relevant matters were put to the Applicant. In the alternative, where there are any minor gaps, criticism of this is pedantic.

[149] I agree with Virgin that the substance of the issues that Ms Lokys relied upon in reaching her decision to dismiss Mr Macnish were put to him. I find that the substantive reason Ms Lokys made the decision to dismiss Mr Macnish was Ms Ridge’s finding that Mr Macnish had breached the A4 Rule and Ms Lokys’ view that Mr Macnish had a pattern of disregard for Virgin’s policies. Though Ms Ridge and Ms Lokys did not put the issues outlined in [147], Mr Macnish was told of the substantive reason for dismissal and was given the opportunity to respond.

4.3 Section 387(d) – any unreasonable refusal by the Respondent to allow a support person

[150] Virgin did not refuse any request for a support person. This is a neutral consideration in assessing Mr Macnish’s dismissal.

4.4 Section 387(e) – warnings concerning performance

[151] The dismissal was not related to unsatisfactory performance. This is also a neutral consideration.

4.5 Section 387(f) and (g) – size of the Respondent’s enterprise and whether the absence of dedicated human resource management specialists or enterprise would be likely to impact on the procedures followed

[152] It is uncontroversial that Virgin is a large enterprise with dedicated human resources specialists. This is a neutral consideration.

4.6 Section 387(h) – any other matters the Commission considers relevant

Self-referral

[153] There was much debate between the parties as to whether Mr Macnish had self-reported his error regarding the A4 Rule. I find that he did. It was put to Mr Macnish during his crossexamination that if he had not heard his co-workers talking about the Virgin Christmas Party, he would not have come forward to see Ms Ridge (and subsequently spoke to Ms Solis instead) on Wednesday 20 December 2023. Mr Macnish’s answer is that he would not have known there was an incident.93 This is a reasonable answer. Mr Macnish (or any other staff member) cannot be faulted for not self-reporting if they do not know that they have breached a policy.

[154] The DAMP Manual explicitly encourages self-referral of mistakes to promote a robust safety culture. Part of this encouragement is the position that “the reporting of errors will not result in disciplinary action”. This is to be commended.

[155] I don’t believe that Mr Macnish had this part of the DAMP Manual specifically in mind when he went to speak with Ms Solis on Wednesday 20 December 2023. However, I find that he did want to be upfront and honest about him operating the red-eye flight once he became aware that it might be an issue. This is something I have taken into consideration in weighing up whether Mr Macnish’s dismissal was unfair.

Comparison to other staff who have breached the 8-hour Rule

[156] Mr Macnish relies on a recent incident involving another Perth-based staff member who I will refer to simply as ‘Doe’ to preserve their privacy. Doe is a Cabin Crew Manager who received a result of 0.02% when breathalysed at work to test their BAC level. This was an express breach of the CASA Regulations and DAMP Manual. Doe was not terminated or demoted.94 This was on the grounds of Doe’s medical issues with alcohol.

[157] Virgin submits that where an individual has a genuine health condition and seeks treatment and support, Virgin takes a responsible health-based approach, rather than a traditional disciplinary approach to support the person in continuing in employment. This is also to be commended.95

[158] Virgin further submits that Mr Macnish did not raise that he had an alcohol dependency issue or any other relevant health issue that contributed to his conduct.96 I accept this submission.

[159] However, Doe’s case shows that Virgin is capable of nuance when it comes to breaches of the 8-hour Rule. Nuance does not mean being soft or lenient when it comes to serious issues of alcohol and safety, especially in a safety-critical industry such as aviation. But a lack of nuance runs the risk of creating unfair outcomes.

Employment record

[160] It is not disputed that Mr Macnish’s performance at work was of a high standard. Ms Ridge acknowledged in cross-examination that Mr Macnish had “glowing” feedback from Cabin Crew Managers.97

[161] I also note Ms Lokys’ concession that when reaching the decision to terminate Mr Macnish’s employment, she did not take his work performance feedback into consideration.98

Conclusion – Mr Macnish’s dismissal was unfair

[162] I have considered the factors in section 387 in relation to Mr Macnish’s dismissal. I find that though Mr Macnish did breach the A4 Rule, it did not give rise to a valid reason in the circumstances. I also find that Mr Macnish did not breach the FRMS Manual.

[163] If I had been satisfied that Mr Macnish’s breach of the A4 Rule constituted a valid reason for dismissal, I still would have reached the view that his dismissal was harsh for the following reasons:

(a) Mr Macnish took steps to check whether he was fit to sign-on for duty, such as checking with the relevant Cabin Crew Manager, checking the DAMP Manual and breathalysing himself.

(b) Mr Macnish was entitled to think that the DAMP Manual contained everything he needed to know about Virgin’s drug and alcohol management at the workplace. He was not in breach of the DAMP Manual when he presented for work on Sunday 17 December 2023.

(c) Ms Ridge and Ms McGregor both acknowledged that in their dealings with Mr Macnish at both the Ground School and at the meeting on Wednesday 11 October 2023, at no point did they reference the A4 Manual when referring to the 8-hour Rule.

(d) Mr Macnish was proactive in addressing the issue. Once he became aware that he may have breached a policy, he spoke with Ms Solis (in lieu of Ms Ridge) on Wednesday 20 December 2023. It arguably would have been easier for him to try and ignore the gossip and hope that it went away but he chose to try and be proactive in addressing his concerns regarding his employment.

(e) Virgin has a rightfully strong stance on the consumption of alcohol in the workplace. However, it is not a strict ‘zero-tolerance’ stance as shown by the Doe example.

[164] Mr Macnish was not in the situation of someone who was rostered on to work, had too many drinks at the Virgin Christmas Party and then proceeded to turn up to work. He was not rostered on at the time he attended the Virgin Christmas Party; he had one drink 7.5 hours before his scheduled sign-on; he checked with his manager; he checked the DAMP Manual; he breathalysed himself; and he was compliant with the DAMP Manual and CASA Regulations at the time he commenced his duty.

[165] As I have already explored, I do not find that Mr Macnish breached the FRMS Manual. If I had found that he had, it would not rise to the standard of a valid reason given the circumstances of the medical incident and the common practice of Virgin staff using dating apps while away from their home city.

[166] Mr Macnish’s dismissal was unfair. I now turn to consider the appropriate remedy.

Remedy

[167] Section 390 of the Act sets out the circumstances in which an order for reinstatement or compensation may be made:

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.

[168] I am satisfied that, pursuant to s 390(1) and (2), Mr Macnish made an application for unfair dismissal, is a person protected from unfair dismissal and was unfairly dismissed.

[169] Mr Macnish seeks reinstatement to his role of Cabin Crew Member.

[170] Virgin submits that reinstatement is not appropriate as there has been a fundamental breakdown of trust. Virgin says that if Mr Macnish were to be reinstated, it would convey to other Cabin Crew Members that they can breach the 8-hour Rule and ‘get away with it’.99 Further, Virgin says that Mr Macnish’s key managers consider Mr Macnish is dishonest when he says he did not know or did not understand the 8-hour Rule, even if the Commission was to find the contrary, means there is a real breakdown in the necessary trust and confidence in him for ongoing employment.

[171] In Nguyen v Vietnamese Community in Australia T/A Vietnamese Community Ethnic School South Australia Chapter100 (Nguyen), the Full Bench of the Commission considered and summarised relevant principles in assessing the impact of loss and confidence on the question of whether reinstatement is appropriate. I respectfully adopt the Full Bench’s principles at [27] as below (citations omitted):

Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship wilk destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.

[172] Virgin’s submissions cannot be sustained in light of the principles in Nguyen. I do not accept that after this matter that Virgin staff will think they can ‘get away’ with breaches of Virgin’s drug and alcohol management policies – if anything, Mr Macnish’s case will assist in staff clearly understanding how Virgin’s policies are set out.

[173] I find that it is appropriate to reinstate Mr Macnish. In reaching this conclusion, I rely on the following:

(a) As acknowledged by Ms Ridge, Mr Macnish was well regarded by Cabin Crew Managers who gave him “glowing” feedback.

(b) Mr Macnish conducted himself professionally and politely throughout the investigation and the show cause processes.101

(c) Mr Macnish’s engagement with the investigation process and his responses. His show cause replies showed genuine contrition and reflection. His email on Saturday 6 January 2024 demonstrated that he had reviewed Virgin’s policies and summarised them in his own words. I am satisfied that Mr Macnish has learned a lasting lesson from this experience and will act accordingly if he is reinstated.

6.1 Reinstatement – to what position should Mr Macnish be appointed?

[174] Section 391(1) of the Act provides that an order for Mr Macnish’s reinstatement must be an order that Mr Macnish’s employer at the time of the dismissal reinstate Mr Macnish by:

(a) reappointing Mr Macnish to the position in which he was employed immediately before the dismissal; or

(b) appointing Mr Macnish to another position on terms and conditions no less favourable than those on which Mr Macnish was employed immediately before the dismissal.

[175] Virgin did not make any submissions regarding the availability of Mr Macnish’s former position as Cabin Crew Member. It is public knowledge that the position of Cabin Crew Member still exists in Virgin’s enterprise. I am satisfied that it is open to me to make an order reappointing Mr Macnish within 21 days of the date of this decision to his former position as Cabin Crew Member.

6.2 Reinstatement – is it appropriate to make an order to maintain continuity?

[176] Section 391(2) of the Act provides that, if the Commission makes an order for reinstatement and considers it appropriate to do so, the Commission may also make any order that the Commission considers appropriate to maintain the following:

(a) the continuity of Mr Macnish’s employment;

(b) the period of Mr Macnish’s continuous service with the employer or, if applicable, the associated entity.

[177] Given my findings regarding the harshness of Mr Macnish’s dismissal, I consider it appropriate to make an order to maintain Mr Macnish’s continuity of employment and period of continuous service with Virgin.

6.3 Reinstatement – is it appropriate to make an order to restore lost pay?

[178] Mr Macnish does not seek an order for backpay. I do not make any order in this regard.