Supreme Court awards almost $400,000 to wronged worker
The Supreme Court of New South Wales recently dealt with a case involving the termination of a senior radiologist’s employment at a medical imaging company. The dispute centred around allegations of workplace bullying, victimisation, and sexual harassment. The allegations against the worker were serious and varied. They included claims of bullying and victimisation towards a radiographer, primarily involving communication issues and perceived rudeness.
The worker was accused of using Post-it notes with capitalised text to communicate, which was interpreted as aggressive. There were also claims that the worker ignored or spoke dismissively to the radiographer. Furthermore, there was an allegation of sexual harassment stemming from an incident at a company Christmas party, where the worker was accused of making an inappropriate “pelvic thrust” gesture towards a female employee.
About a year into the employment relationship, concerns began to surface. A radiographer, who had joined the practice in October 2019, raised complaints about the worker’s behaviour towards her. These complaints escalated over time, eventually leading to formal grievances being lodged with the employer’s human resources department. The allegations against the worker included claims of bullying, victimisation, and an incident of alleged sexual harassment at a company Christmas party in December 2021. The employer investigated these claims, which ultimately led to the worker’s summary dismissal in May 2022, just three months before his fixed-term contract was due to expire.
The employer argued that the worker’s conduct constituted serious misconduct, justifying immediate termination without notice. They relied on clauses in the employment contract that allowed for such action in cases of serious misconduct or material breach of the contract. Specifically, the employer pointed to the following allegations:
- Bullying behaviour towards the radiographer, including constant belittling and isolation.
- Victimisation of the radiographer.
- An incident of alleged sexual harassment at the 2021 Christmas party, where the worker was accused of making a “pelvic thrust” towards a female employee.
The court examined the evidence presented by both parties. It acknowledged that there were issues in the working relationship between the worker and the radiographer but found that some of the more serious allegations were not substantiated. The judge stated: “There is no doubt that [the radiographer] made complaints. She documented the first and third complaints and there were others at the clinic who observed at least some of the behaviour complained of seemingly on a repeated basis.” However, the court also noted: “As [the employer] submits, it is important not to separate each aspect of the alleged bullying and consider whether it might constitute bullying if considered independently of the other conduct. It is important to consider all of the conduct in the context in which it emerged.” The court found that while the worker’s behaviour towards the radiographer was at times rude and unprofessional, it did not rise to the level of bullying as defined in the employer’s handbook.
The judge also could not find sufficient evidence to support the allegation of sexual harassment at the Christmas party. The court’s decision emphasised the high threshold required for summary dismissal. The judge stated: “The right of an employer to terminate the employment of an employee summarily or without notice is a right that should only arise in exceptional circumstances. Exceptional circumstances would generally involve some form of serious wrongdoing or misconduct on the part of the employee.”
The court ultimately found in favour of the worker, ruling that the employer was not entitled to summarily dismiss him. It highlights the importance for employers to have clear evidence of serious misconduct, and the need for thorough investigations and proper procedural fairness when dealing with workplace complaints.
Medical leave denial sparks unfair dismissal claim
The Fair Work Commission (FWC) recently dealt with a case involving a worker who alleged she was dismissed from her job after her employer refused to accommodate her request for flexible working arrangements due to medical issues. The decision emphasises the importance of maintaining clear communication with employees on leave. This case also serves as a reminder to employers about their obligations when managing employees with medical conditions and the potential consequences of poor communication practices.
The case centred around a customer service and sales support worker who had been employed by a small business since April 2023. In November of that year, she experienced medical issues that required hospitalisation. Following discussions with her doctor, she approached her employer about the possibility of reduced hours or working from home temporarily. The employer swiftly rejected this request in an email stating they could not accommodate her request for flexible arrangements. They directed her not to return to work until she could provide a full medical clearance for her original duties. The worker believed she could complete her duties from home if allowed to do so. However, the employer, a small business with only five office staff at the time, deemed the request unfeasible due to operational constraints.
What followed was a period of minimal communication between the parties. The worker focused on addressing her medical issues, as instructed. However, when she reached out to the employer on 13 February 2024 about returning to work, she received no response. The worker gave evidence that on 29 November 2023, she had a discussion with the former operations manager who allegedly told her that the decision to decline her request was not his but had come from higher management. The worker also claimed that she was told that the owner had expressed to staff that she wasn’t coming back.
After nearly a month of silence following her February email, the worker filed an application with the FWC on 5 March 2024, alleging that she had been dismissed. The employer objected, arguing that no dismissal had taken place and that they were simply waiting for the worker to provide a full medical clearance.
In examining the case, the FWC acknowledged that the employer was a small business likely lacking extensive HR resources. However, it was critical of the employer’s handling of the situation, particularly their failure to maintain contact with the worker and their delayed response to her request to return to work. The Commission emphasised the importance of timely communication: “The assertion that the relevant decision maker at the [employer] was totally out of contact is conveniently self-serving in these circumstances. It is not excusable for an employer to ignore such correspondence or have such a significant delay in response.”
Ultimately, the FWC determined that the worker had been dismissed within the meaning of section 386 of the Fair Work Act. The Commission found that either the employment was terminated at the employer’s initiative, or the employer’s conduct was the primary cause of the employment ending.
FWC issues new fact sheet on casual employment changes
The FWC has published new resources for the upcoming changes to casual employment laws ahead of their implementation on August 26, 2024. In a media release, the Commission said it updated its website to reflect the coming changes, as well as uploaded a new fact sheet on casual employment laws.
These changes are part of the Fair Work Legislation Amendment (Closing Loopholes No. 2) Act 2024, which received Royal Assent in February. Under the legislation, the words “casual employees” get a new definition, where a worker can only be considered casual if:
- There is no firm advance commitment to continuing and indefinite work
- They are entitled to a casual loading or a specific rate of pay for casuals under a Fair Work instrument or their employment contract
The law also introduces a new pathway for casual employees to gain full-time or part-time (permanent) employment. These changes to casual employment laws are just one aspect of the upcoming reforms set to take effect on August 26 under the second Closing Loopholes legislation.
Victims may get relief on legal fees for sexual harassment cases
Unions expect a workplace sexual harassment bill will send a “clear” message that unequal treatment at work is unacceptable. Federal parliament is due to consider the government’s Costs Protection Bill which will prevent federal courts from ordering victims to pay their opponent’s legal fees. Legal costs are a significant barrier for many victims of workplace harassment, and it means that perpetrators are rarely held accountable.
According to research from the Australian Council of Trade Unions, only one in every 230,000 victims end up bringing their case to court with many fearing the legal costs could leave them bankrupt. Anonymous examples put forward by the peak union body include a graduate student who said she was made redundant from her job after rejecting unwanted advances from the company’s founder. Another said she was called in for a performance review after making formal complaints about sexual comments from her co-workers. Both women sought legal advice but chose not to pursue their cases due to the costs involved.
The reform is a massive step forward in holding perpetrators accountable, ACTU president, Michele O’Neil, said. “The lack of certainty around costs means that, even when they win, there is no guarantee a victim-survivor’s costs will be covered,” Ms O’Neil said. “By removing this barrier, low-income and vulnerable workers will be empowered to seek justice for encountering workplace sexual harassment.” If passed, the bill will affect all Commonwealth sexual harassment and anti-discrimination laws.
Employer says manager lacked authority to fire worker
The FWC recently dealt with a case involving a retail worker who claimed she was dismissed from her job at a discount store, while the employer argued that the termination was a mistake made by a store manager who lacked the authority to dismiss employees. This case highlights the issues that can arise in employment relationships, particularly when it comes to the authority of managers and the definition of dismissal under the Fair Work Act. It serves as a reminder for employers to ensure clear lines of communication and well-defined roles within their organisation.
The worker began her employment as a part-time retail sales assistant on 2 November 2024. The employment contract, signed by both the worker and the store manager, set out the terms of employment, including notice periods for termination.
Over the Christmas period of 2023, the worker took holidays. Upon her return, she experienced several changes to her working conditions. The store manager reportedly reduced the worker’s part-time hours from 25 hours per week to 16 hours per week without prior discussion or consultation. In February 2024, the store manager advertised a part-time position on the employer’s Facebook page, but the worker was not offered any additional hours. In April 2024, the worker’s hours were further reduced from 16 hours per week to 12 hours per week, again without prior discussion or consultation.
The worker observed that the store manager´s communication style had become abrupt and condescending. On 1 May 2024, during a team meeting, the store manager allegedly addressed the worker abruptly and condescendingly, pointing her finger at the worker about wrong tickets. Following this incident, the worker’s hours were reduced from 12 hours per week to four hours per week.
On 3 May 2024, the worker submitted a written complaint to the operations manager detailing the store manager’s conduct and the reduction in working hours. The operations manager contacted the worker on 8 May 2024 to gather more information. On 15 May 2024, the worker received an email from the store manager stating: “Good afternoon, due to hours and wages being cut we no longer have a position her [sic] for you at [the employer] effective immediately. Sorry for any inconvenience and if you need a reference any time, please feel free to use me as one.” This email was the main aspect of the dispute, with the worker claiming it constituted her dismissal.
The FWC noted: “It is an incontrovertible fact that [the worker]’s employment contract was signed by [the manager]. Further, [the manager] had, on more than one occasion, notified [the worker] of a reduction in her hours and, when [the worker] questioned [the Operations Manager] on one occasion as to whether the reduction of her hours had come from head office, [the Operations Manager] confirmed that to be the case.”
The Commission determined that the worker had been dismissed. It found that the store manager had ostensible authority to act on behalf of the employer, and therefore, the termination of the worker’s employment was at the employer’s initiative. It stated: “I find that [the manager] had ostensible authority to act on behalf of [the employer] and accordingly the termination of [the worker]’s employment was at [the employer]’s initiative, with [the worker]’s dismissal having taken effect on 15 May 2024.” Furthermore, the Commission noted that even if this finding was incorrect, the subsequent actions of the employer left the worker with no real choice but to resign. The FWC emphasised: “Given the aforementioned circumstances, it can only be concluded that [the worker] had no effective or real choice but to resign.”
The Commission concluded: “I am satisfied [the worker]’s employment was terminated on the initiative of [the employer] and if I am wrong on this point, I am nevertheless satisfied that [the worker] was left with no choice but to resign given the course of conduct engaged in by [the employer] – hence s 386(1)(b) of the Act, having been met.”
Australia’s gender pay gap declines to new low
Australia’s gender pay gap hit a new record low of 11.5% in May 2024, according to the Australian Bureau of Statistics (ABS). The record-low gender pay gap comes as full-time adult average weekly ordinary time earnings was $2,014.3 for men and $1,782.8 for women.
The Workplace Gender Equality Agency (WGEA) reported that the record-low pay gap means that, on average, women only earned 89 cents for every dollar earned by men. “That’s $231.50 less than men each week,” WGEA said in a statement. “Over a year, this difference adds up to $12,038. Kate Lamb, ABS head of labour statistics, said this is the fourth six-monthly drop in the gender pay gap.
Prime Minister Anthony Albanese attributed the recent development to the government’s initiatives to reduce the gender pay gap since coming into office. “It’s because the government has taken action like banning pay secrecy clauses, modernising the bargaining system, enforcing transparent gender pay gap reporting, and delivering pay rises for aged care and childcare workers,” he said in a statement.
Minister for Women Katy Gallagher added that the development is not just good for women, but also for men, children, the economy, and the community. “Closing the gender pay gap is a key ambition of Working for Women: A Strategy for Gender Equality because we know that it is both a driver and a result of inequality. We know there is still work to do and we will keep going,” she said.
Bullying claims, death threat at centre of elite Sydney stockbroker’s lawsuit
One of Sydney’s online share market betting brokers is being sued by a former employee in the Federal Court. Juan Vargas, 38, claims he was one of CMC Markets’ best earners globally but was allegedly short-changed nearly $1 million in bonuses over two and a half years. He is also seeking $500,000 in damages, alleging he lost his job and had his life threatened after complaining about a new bonus scheme that capped how much he could earn.
Vargas alleges when he complained to CMC Asia Pacific head Matthew Lewis about the bonus, his life was threatened. This claim is denied by Lewis and the firm.
Vargas was employed as a sales trader in CMC’s Sydney team. According to his statement of claim, on February 23, 2023, Lewis told Vargas in a “raised voice” that if he complained over the new bonus scheme, including the imposition of a cap, Lewis would “end the employment, the career and the life” of Vargas.
CMC hired an external consultant to investigate Vargas’ claims of bullying and harassment but denied he was thwarted from exercising his “workplace right” to appeal against its findings, which did not substantiate his claims. CMC originally refused his requests to share the report and witness statements. Its lawyers argued it was not “appropriate” to provide the “sensitive” documents given the allegations raised related to workplace conduct. Vargas has now been given access to the report.
In their defence, lawyers for CMC and Lewis deny Vargas was threatened, that he was not paid entitled bonuses, or that he received adverse treatment in breach of the Fair Work Act for complaining about his remuneration. CMC claims it was Vargas who breached its professional behaviour and conduct codes on a separate, subsequent occasion with another co-worker, which resulted in him receiving a “warning letter” in August 2023. It said there were “no other reasons” why he was made redundant five months later beyond “the application of objective selection criteria” in which Vargas “obtained the lowest score”.
In one instance, Vargas claims the new cap resulted in a potential $400,000-plus commission from a big-spending client being reduced to less than $90,000. He also claims after he complained, other clients were taken from him, further reducing his potential bonuses. Vargas finished up with CMC on February 14 this year after six and a half years.
In April, the FWC conducted a conference and was “satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful.”
Can a volunteer file an anti-bullying claim?
The FWC recently dealt with a case involving allegations of workplace bullying and a jurisdictional objection regarding the definition of a “worker” under the Work Health and Safety Act 2011 (Qld) (WHS Act). The dispute centred around a member of a professional medical organisation who claimed to be a volunteer worker, while the organisation argued that committee membership did not constitute work.
The worker, a psychiatrist, applied for an order to stop bullying under section 789FC of the Fair Work Act 2009 (Cth). They alleged bullying behaviour by the employer, The Royal Australian and New Zealand College of Psychiatrists (RANZCP), and three named individuals.
The application stemmed from an alleged breach of a Mediation Agreement that had finalised a previous Application to Stop Bullying in 2023. The worker claimed that one of the named individuals had written to them, violating a condition of the agreement that stated: “Upon fulfilment of the terms of this agreement, there will be no further communication about past resolutions of the Board requiring production of vaccination certificates, and any other matters of the subject of the FWC application.”
The employer raised a jurisdictional objection, contending that the worker did not meet the definition of a “worker” under the WHS Act and was not at work when the alleged bullying occurred. The worker claimed to perform voluntary work on several committees within the organisation and cited various responsibilities.
The FWC examined the definition of “worker” under the WHS Act, which is intentionally broad. The Commission noted that a person need only perform work “in any capacity for” the other person conducting the business or undertaking to satisfy the definition. “The definition of ‘worker’ in s.7(1) of the WH and S Act contains two primary elements. First, the person must carry out work. Secondly, the work must be carried out for a person conducting a business or undertaking.”
The Commission found that while the employer argued committee members did not perform operational work, the responsibilities outlined in the committee regulations constituted work within the broad definition of the WHS Act. These responsibilities included strategic oversight of membership engagement, providing strategic advice and leadership, improving member awareness, and overseeing operational membership processes.
The FWC dismissed the jurisdictional objection, ruling that the worker met the definition of a worker under the WHS Act while remaining a member of the organisation’s committee. It stated: “On that basis, I am satisfied that while the [worker] remains a member of a membership committee of the [employer], he is a worker for the WHS Act.” This decision emphasises the broad interpretation of “worker” under the WHS Act, which can include volunteers and committee members in certain circumstances.
This ruling highlights that: “The definition of ‘worker’ in s 7(1) of the WHS Act is very broad in that, a person need only perform work ‘in any capacity for’ the other person conducting the business or undertaking to satisfy the definition.”
Parliament’s senate estimates committees not covered by new conduct rules
The government introduced legislation this week to establish the Independent Parliamentary Standards Commission (IPSC) – a recommendation of the Human Rights Commission report into Commonwealth parliamentary workplaces.
The job of IPSC will be to “enforce behaviour codes for Parliamentarians, MOPS staff and other people who work in Commonwealth parliamentary workplaces”, according to the official release from the responsible minister, Katy Gallagher this week.
However, this new infrastructure does not apply to parliamentary proceedings. The explanatory memorandum for the new bill says the “IPSC would only investigate allegations of relevant conduct that do not form part of proceedings in Parliament.”
Tough new plan for Ministers of Parliament behaving badly
Ministers of Parliament could face tough new penalties for bad behaviour under a government Bill to be introduced to parliament on Wednesday. The legislation, based on recommendations in the Set the Standard report released in 2021, would establish a parliamentary standards commission charged with independently investigating alleged breaches of parliamentary standards. The watchdog would recommend penalties to parliament, but ultimately the decision would lie with parliamentarians.
The government has hailed the Bill as crucial to stamping out “bullying, harassment, sexual harassment and assault, and discrimination” in Parliament House. “The 2021 Set the Standard report laid bare the serious issues of bullying, sexual harassment and sexual assault at parliamentary workplaces,” Finance Minister Katy Gallagher said in a statement. She said the Albanese government had “been working hard to put the systems in place so that people can raise workplace complaints, and when complaints are substantiated, that both staff and parliamentarians are held to account for their behaviour”.
Commonwealth public servants made 31 sex discrimination-related complaints in a year
Data shows that 31 sex discrimination-related complaints were made by public servants working for Commonwealth agencies over the last year. The Australian Human Rights Commission (AHRC) has released information showing the number of complaints made by employees about a Commonwealth department or agency between September 2023 and July 2024 under the Sex Discrimination Act 1984.
In December 2022, a new positive duty was introduced that imposed a legal obligation on organisations to take meaningful action to prevent unlawful conduct from occurring in the workplace. The commission recommended the introduction of a positive duty for employers in its Respect@Work report in 2020.
The AHRC said its powers to inquire into and enforce compliance with the positive duty guidelines under the Sex Discrimination Act began in December 2023, but no formal inquiries had begun into any Commonwealth agency since then. However, it received two reports providing information about Commonwealth agencies’ alleged compliance with positive duty guidelines. The AHRC said a person could not make a “complaint” about non-compliance with the positive duty but could raise concerns or report suspected non-compliance, including via an online form on its website.
The AHRC said sex discrimination happens when a person is treated less favourably than a person of a different sex would be treated in the same or similar circumstances. It also says discrimination happens when there is a rule or policy that is the same for everyone but has an unfair effect on people of a particular sex.
Shocking experiences of migrant and refugee women at work
Australia’s National Research Organisation for Women’s Safety (ANROWS) released a global study examining the severe challenges that migrant and refugee women face in Australian workplaces. Last year, it found that 46% of migrant and refugee women had experienced workplace sexual harassment within the last five years. The latest research expands on these findings and forms part of the 2021-2024 ANROWS Sexual Harassment Research Program.
The research team worked with more than 850 migrant and refugee women, and the results showed that migrant and refugee women consistently reported experiences of sexual harassment alongside racial discrimination and exploitation. This included things like unequal pay and working in an unsafe environment, as well as both physical and psychological threats to their safety.
Another concerning finding is that many migrants and refugees do not speak out because they fear they will be negatively impacted professionally, financially or culturally. Dr Tessa Boyd-Caine, CEO of ANROWS, said the only way to properly address workplace sexual harassment is to recognise and tackle the “interconnected” levels of discrimination that migrant and refugee women face. “It is a fundamental right to feel safe at work. Yet many migrant and refugee women in Australia are deprived of this basic security,” she said. “The evidence shows that addressing sexual harassment, racism, and exploitative conditions in isolation is inadequate. We must understand that these issues are interconnected if we are to improve conditions and safety of migrant and refugee women in Australian workplaces.”
Professor Marie Segrave, author of the research, thanked the brave women who participated in the research and brought these issues to light. “A critical finding of this research is that structural inequalities – such as racism, visa status, and employment conditions – intensify the impact of workplace sexual harassment and other forms of abuse and exploitation,” she said. “Our research is based on the generosity of migrant and refugee women across Australia who have shared their stories and experiences.
Virgin cabin crew member reinstated after unfair dismissal ruling
A cabin crew member with Virgin Australia has been reinstated following termination over what the FWC labelled a “mystifying” approach to allegations that he breached his employment contract.
A list of allegations was made against cabin crew member Dylan Macnish by his former employer over conduct ranging from September 2023 to the end of that year. These allegations were based on alleged breaches of Virgin’s policies about alcohol consumption and fatigue management. Macnish applied an unfair dismissal remedy with the FWC, arguing that the policies were not communicated, and he contested his employer’s reliance on prior issues in coming to its decision to terminate him.
Macnish commenced his employment with Virgin on 4 July 2022. The initial concerns began in September 2023 when crew culture at Virgin, Lydia Ridges, began to suspect that Macnish was showing up to work hungover and, on some occasions, allegedly bragging about it. Macnish explained that he stated that he was “dusty” but was using the term to describe himself as tired or not at his best, rather than referring to himself as hungover. This led to a one-on-one meeting between her and Macnish, with Ridges saying that the reason for the meeting was concerns a co-worker had raised that Macnish had come to work hungover. Macnish was shocked by these claims, saying that “he cared deeply about his job and that had never drunk alcohol within eight hours of attending work”. The eight hours is a policy at Virgin where employees cannot consume alcohol eight hours before they begin their shift. However, it was established during proceedings that many workers were unclear on whether this was a legitimate policy, or a guideline.
On 25 November 2023, Macnish was working a layover from Perth to Brisbane. After disembarkation, crew members were notified of a medical event involving one of the passengers at the gate, who had collapsed. It was believed that the man had a stroke. In Macnish’s evidence, he cited that the crew had to assist the passenger onto a wheelchair; during this, the passenger accidentally urinated on Macnish. The ordeal took its toll on Macnish, who was affected by the experience. He was scheduled to fly out again the following morning, but due to the anxiety he struggled to sleep. At 4:26am, he contacted Virgin’s rostering support team, notified them that he would be fatigued for the early morning flight, and was moved to the afternoon flight. He then used the Grindr app and invited someone into his hotel room. In his evidence, he explained having a physical interaction with someone would help him fall asleep. He spent time with the individual in his hotel room and fell asleep shortly after.
Following this situation, on 29 November 2023, Macnish and Ridges had a brief interaction, speaking about the medical incident. She was concerned about Macnish “accessing fatigue” only four hours before the scheduled morning flight. Her concerns led to a request for the CCTV footage of Macnish’s hotel hallway and hotel room swipe card record. On 12 December 2023, Ridges sent a letter informing Macnish that Virgin was investigating allegations of misconduct on the night of 26 November. Ridges claimed that, firstly, Macnish didn’t remove himself from the roster due to fatigue, but instead for “social activities”, citing the CCTV footage of the individual entering and exiting his room. The second allegation was that Macnish fabricated the medical incident, as there was no recorded input on the safety record of the incident occurring.
During a Virgin Christmas on 17 December 2022, Macnish claimed in his evidence that he consumed one glass of prosecco while socialising. He then carried another glass around, merely “as a social crutch”, but did not consume it. By 2:30 pm, Macnish had not consumed another drop of alcohol. Another member of Virgin’s management claimed that Macnish was, in fact, intoxicated, as he was exerting a “lovey-dovey” attitude and showed eagerness to go to the next drinking location. Macnish refuted these claims, instead saying that the person making such claims was intoxicated herself. Macnish did not go to another location after the party; instead, he went home. At 5:30 pm, he received a message about a red-eye flight that was short of a cabin crew member, and decided to join his friend/colleague on this flight in an act of support. Both spoke about the fact that Macnish had consumed an alcoholic drink earlier in the day, but Macnish went through the protocol manual and found that he wasn’t breaching any conduct. His colleague even said words to the effect of, “I’m pretty sure eight hours is just a guideline.” Macnish joined the cabin crew for this departure; however, the flight was delayed, not leaving until 11:22 pm that night.
Rumours began to swirl around the workplace of Macnish being “drunk” during his shift. This forced him to visit the Perth office to clear up the misconceptions of his perceived actions. He initially wanted to see Ridges, but she wasn’t there; however, he explained his full story to a subordinate who could relay the information to Ridges. He strongly disagreed with the original allegations that took place after the night of the medical incident. He explained that he was, in fact, fatigued, and he went into more detail explaining the legitimacy of the medical incident that Ridges was calling into question. He refuted the claim that he was merely changing his roster spot for social activities and explained that he understood that having sex “is not an unorthodox way of falling asleep, however, it is common in the gay community, and it was successful for him”.
On 22 December 2023, he received yet another allegation letter, this time for a drug and alcohol breach, relating to the aftermath of the Christmas party. Macnish attempted to explain the details of what happened, but it seemed to have fallen on deaf ears. After several meetings, and Macnish trying to defend himself, on 1 February 2024, Macnish was informed that his employment was being terminated due to the allegations.
FWC Commissioner Pearl Lim didn’t believe that Macnish breached any protocol in this allegation, saying: “Even if I had found that 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.”
In terms of the drug and alcohol allegations, Lim said: “If I had been satisfied that 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.” Macnish simply didn’t go to the Christmas party, drink alcohol, and then show up to a shift, as Lim explained: “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.”
Ultimately, Lim found that Macnish’s dismissal was unfair and ordered Virgin Airlines Australia to reappoint him to the position in which he was previously employed.