Reinstatement of employee ordered by FWC despite company policy breaches

Hard and fast rules, do they always give rise to termination? The case of Macnish v Virgin Airlines Australia P/L [2024] FWC 2154

Mr Macnish, cabin crew member for Virgin Airlines Australia (Virgin) made a claim for Unfair Dismissal in the Fair Work Commission, following the termination of his employment on 1 February 2024. Subsequently, on the 14 of August 2024 the Fair Work Commission ordered the reinstatement of Mr Macnish. The decision considered a breach of company policies in particular, whether Virgin’s response to these breaches was harsh and unreasonable, where surrounding circumstances was not taken into consideration.

The Dismissal

Mr. Dylan Macnish was notified of his termination on February 1^st, 2024, following a show-cause meeting on January 22^nd, 2024. The dismissal was on the grounds of ‘serious misconduct’ and Dylan was terminated effective immediately without pay. The letter Mr Macnish received outlined three breaches of company policy which had been investigated and due to the findings, justified his dismissal.

The Fatigue Risk Management Manual

The first policy Mr Macnish allegedly breached was the Cabin Crew Fatigue Risk Management System (FRMS). The FRMS allows for fatigued employees to access fatigued entitlements, however, specifies an employee must not manipulate those fatigue entitlements in any way, i.e. by engaging in social activities during a fatigue period.

The incident occurred on the 29^th of November 2023. Where upon disembarking an evening flight an elderly passenger suffered a stroke and subsequently had urinated on Mr Macnish’s arm, this was the first medical incident that Mr Macnish had been involved in. The medical incident affected Mr Macnish significantly, preventing him from fall asleep at his hotel. Following this:

• At 4:26am Mr. Macnish rescheduled his rostered flight from a8:20 AM sign on to 4:45 PM
• After the call, Mr Macnish used an online app to organise casual sex, reasoning it helped him sleep
• He asked his guest to leave at 9:00am
• Awoke again at 3:00pm and reported for duty at 4:45pm

Virgin claimed the interaction constituted ‘social activities’ while accessing fatigued entitlements, violating the FRMS.

Commissioner Lim considered Mr Macnish’s reasoning was fair, and while unorthodox he was not manipulating his fatigue entitlement. This provided no reason for Virgin to take disciplinary action. Commissioner Lim found Virgin’s approach to this issue ‘mystifying’ and understood the issue should not have proceeded as far as it had.

Mr Macnish’s letter of termination on the 1^st of February claimed the issue was not considered an element amounting to Mr Macnish’s termination. However, during the hearing Virgin relied on the action as reasoning for Mr Macnish’s termination. Commissioner Lim agreed the issue provided no reason for adverse action against Mr Macnish.

Second Alleged Breach of the FRMS – Authenticity of the Fatigued Related Incident was Uncorroborated

Virgin claimed Mr Macnish had breached the FRMS for a second time as Virgin was unable to corroborate any version of events occurring which caused Mr Macnish to access fatigue entitlements. Ms Ridge, Virgin’s Leader of Crew Culture founded the alleged breach on a brief conversation she had with Mr Macnish who recited the incident to her. Following the conversation:

• Ms Ridge investigated the incident in the flight’s safety report and found no evidence of the incident being documented
• She had no further clarifying conversation with Mr Macnish
• Ms Ridge then concluded the incident must have been fabricated and therefore Mr Macnish had breached the FRMS as he was not truly fatigued.

Commissioner Lim commented that if Ms Ridge sought to use the alleged breach as grounds for Mr Macnish’s termination she ought to have followed up with him after reading the report. She had not afforded him the opportunity to respond or explain and she had based the alleged breach of the FRMS off a brief interaction with Mr Macnish.

For these reasons, Commissioner Lim did not consider the event’s authenticity as contravening the FRMS or as reasonable grounds in Mr Macnish’s termination.

Drug and Alcohol Management Policy and the A4 Manual – The 8-Hour-Rule

The final issue involves two company policies which were inconsistent in their respective approaches:

1. Drug and Alcohol Management Policy (‘DAMP’), requiring
   • 00% BAC reading upon reporting for duty
   • No consumption of alcohol while reporting for duty
2. Volume A4: Cabin Crew Policy and Procedures Manual (A4 Manual)
   • No consumption of alcohol allowed within 8 hours prior to reporting for duty, the ‘8-Hour-Rule’

The final issue follows an incident occurring on the 17^th of December after Virgin’s Christmas Party. Virgin claimed Mr Macnish breached Virgin’s code of conduct by consuming alcohol less than 8 hours before reporting for duty – breaching company policy.

Mr Macnish consumed a single glass of prosecco between 2pm-2.30pm at the Christmas Party and used another as ‘social aid’. Following the party, Mr Macnish agreed to take a flight with a 10:55pm roster on and enquired with his manager if, considering the prosecco he had less than eight hours beforehand, he was able to work the flight. He was told the 8 hours is just a guideline but 0.00% upon sign in is required. Mr Macnish himself reviewed the DAMP and assessed there was no reason he could not work the flight. Mr Macnish used an Australian Certified breathalyser prior to attending duty which responded with a 0.00% BAC.

The Commissioner found the 8-Hour-Rule was known more as a general guide rather than a hard and fast rule, with crew members relying more heavily on having a BAC reading of 0.00% as required in the DAMP.

Subsequent actions:

• On 22^nd of December, Mr Macnish received a letter outlining his breach of Virgin’s A4 Manual by consuming alcohol within eight hours of the flight.
• He responded on the 28th of December explaining his interpretation and misunderstanding.
• A meeting took place on the 6th of January 2024. Several correspondences back and forth followed.

Mr Macnish was dismissed on the 1^st of February 2024, with the A4 Manual breach being the primary reason for his termination.

Was the dismissal harsh?

Commissioner Lim found firstly, even had Mr Macnish breached the A4 Manual the breach did not give rise to a valid reason for termination in the circumstances; and secondly, Mr Macnish had not breached the FRMS Manual.

The first FRMS breach was considered reasonable despite being unorthodox, and the second alleged breach considered Virgin ought to have engaged with the facts deeper before a breach of policy was determined.

For the breach of the A4 Manual, the Commissioner considered Mr Macnish:

• Had not been rostered on
• Had one drink 7.5 hours prior to duty
• Checked with his manager
• Checked the DAMP Manual
• Breathalysed himself
• Was compliant with the DAMP and broader aviation regulations

For the reasons above, Commissioner Lim found Mr Macnish’s termination to be harsh and unreasonable.

Remedy: Reinstatement

Mr Macnish applied for reinstatement of his position at Virgin pursuant to s390(1) and (2) of the Fair Work Act. Virgin argued there had been a fundamental breakdown of trust, and reinstatement of Mr Macnish would convey to other Crew Members that the 8-Hour-Rule can be breached, and employees will “get away with it”. The Commissioner disagreed there had been a breakdown of trust, citing the case of ‘Nguyen’ she commented that ‘if anything, Mr Macnish’s case will assist in staff clearly understanding how Virgin’s policies are set out’.

Commissioner Lim ordered the reinstatement of Mr Macnish with continuity of service given the harshness of the dismissal. Macnish did not seek an order for backpay during his term of unemployment.

Key Take Aways

The circumstances surrounding each employee’s situation are crucial. While company policy may be strict and important, so is understanding and accounting for an employee’s situation and the circumstances surrounding a breach.

For Employers –

Ensure all company policies and procedures are consistent, with each policy covering all relevant rules. Like Virgin, mismatching policy may lead to significant detriment when an issue arises.

Employers must also understand the entire circumstances surrounding an employee’s breach before jumping to conclusions which may be harmful upon further consideration.

For Employees –

As an employee make sure you’re aware of all company policies, and if there are inconsistencies make your employer aware of these. The employee has a responsibility to be aware of company policy and to comply with them.

If you’re unsure if your behaviour will be in breach of company policy, make sure you do your due diligence like Mr Macnish did, the following steps should be considered:

• Find company policies that govern the area, read them and reflect.
• Ask a manager or a higher up what they think.
• Take your own steps – like Mr Macnish used a breathalyser, take your own steps to make sure you’re complying with company rules to the highest degree.
• If a complication does occur be open, respectful, transparent and work with your employer to try reach a conclusion.

Vocare Law is well equipped to assist our employment clients with a wealth of collective knowledge and over decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions or require assistance regarding employment issues or need to review or update your policies . Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by William Johnson.