Stay virgin before work

Let’s talk about sex and a glass of Prosecco. Perhaps a taboo discussion in connection with employment. But that was the topic in the recent, hard fought, unfair dismissal case of Macnish v Virgin Airlines Australia Pty Ltd [2024] FWC 2154.

Apparently having sex and a drink before work, in your own time, was in breach of Virgin’s fatigue management and drug and alcohol policies. It dismissed its crew member for these alleged indiscretions. Was it right to do so?

Many employers have rules relating to conduct out of hours that can impact on the safe performance of work. These are often legitimate and enforceable. But context is always king in determining whether that applies in every case.

In this bulletin we examine this case as it illustrates the importance of:

• clear and easily accessible policies

• considering explanations in context, even if bizarre or not usual

• appreciating the real impacts of conduct outside of work.

Inside the bedroom

The facts of the case were relatively simple. 

A Virgin cabin crew member was dismissed because he had signed up for a red-eye flight that commenced 7 ½ hours after he had consumed a glass of prosecco at a staff Christmas party. Virgin argued it has a zero-tolerance policy towards the consumption of alcohol within eight hours of commencing duties and the employee had breached its policy.

As a back-up argument, Virgin said that the employee had earlier lied about a roster change based on fatigue. The employee had on another occasion assisted with a passenger medical emergency. He later called Virgin’s rostering team and claimed that due to resulting anxiety, he could not fall asleep and would be too fatigued for his rostered flight. As a result, he was moved from a scheduled morning flight to an afternoon flight.

Shortly after making this call, the employee had casual sex with someone he’d met through the Grindr app at the hotel. The employee said he did this to help him fall asleep.

The verdict: abstinence is not necessary

The Commission found there was no valid reason for dismissal and even if there was, the dismissal was harsh.

The Commission accepted that aviation is a highly regulated industry (and for good reason); there are strong and valid reasons for having an eight-hour abstinence rule before commencing work. “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 Commissioner said.

The Commissioner accepted that the employee (and others) did not have a clear understanding that the eight-hour rule was a hard and fast rule. They thought it was only a guideline. Further, even if the crew member had thought it was a rule, the rule was not set out in the relevant policy document that was easy to find and accessible. As such, the one drink did not provide a valid reason for dismissal.

Neither did the past conduct of the crew member. The Commissioner accepted that the employee engaged in casual sex to go to sleep, not for the purpose of having sex. She therefore accepted that the employee had not manipulated Virgin’s fatigue management entitlements in contravention of policy. 

"What happens between informed and consenting adults is their own business, unless it breaches a lawful and reasonable workplace policy”, said the Commission. And, as a leader at Virgin 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. No double standards.

Would the outcome have been different if the employee had not gone to sleep, and the casual encounter continued for a longer period? Possibly - the employee had claimed anxiety had prevented him from sleeping; sex for longer may be suggest that there was no real problem sleeping but an attempt to misuse the policy. It will always come down to the facts of each case.

The crew member was reinstated to his employment.

Lessons

A few lessons can be drawn from this case.

First, it is important to have a set of policies, procedures and manuals which are accessible, clear and concise. Virgin had a hard time convincing the Commission of the status and application of its various policy documents and the difference between rules and guidelines. There were multiple different manuals to be considered. There should no room for doubt as to the rules that apply to your workplace and where they are to be found.  

Second, it is important that employees have a proper understanding of the application of relevant policies. There should be appropriate induction, training and continuous education around applicable policies and procedures to avoid arguments about employees’ lack of clear understanding around workplace obligations, as in this case.

Third, relying on out of work conduct is fraught with danger and requires close consideration of the facts, policies and the real and tangible connection to work. Not all conduct will breach policy and certainly having sex out of work in one’s own time seems to be a long bow to draw. It will come down to what are the policy requirements and how they are alleged to have been breached. In this case, the employee said he had sex to get to sleep, supporting his access to the fatigue management policy. Whilst that conduct may not have been palatable to some, it was rationally connected to the reason for applying for a change in the roster in the first place. The question is not whether the conduct is unpalatable or farfetched, but whether it demonstrated a serious and material breach of policy.

So, for now, it seems most employees are safe - a quickie, whether a drink or sex, before work is still acceptable – provided it doesn’t interfere with your performance, work health and safety obligations and workplace policies.

Author: James Mattson and Sylvia Moses