Virgin Australia was forced to reinstate the cabin crew member following a ruling by the country's Fair Work Commission. Photo: 123RF/ Ryan Fletcher
An Australian airline which fired a staffer after a Grindr hookup while on 'fatigue leave' probably would not have taken such action if he was married and straight, an employment law expert says.
Virgin Australia was forced to reinstate the cabin crew member, Dylan Macnish, following a ruling by the country's Fair Work Commission.
Macnish was dismissed after the airline obtained hotel CCTV footage and room swipe card records, the Guardian reported, after he had asked for a roster change due to fatigue. During a stressful shift the previous day, he had been urinated on by a passenger suffering a suspected stroke.
Early the next morning, Macnish said he turned to Grindr - a dating app targeted at the LBGTQI+ community - "on the basis that having a physical interaction with someone would help him fall asleep", the commission's ruling said. He reportedly attended his amended shift the next afternoon without issue.
Virgin also said Macnish had also broken company policy by having a glass of wine at a work Christmas party seven-and-a-half hours before he was asked to work a shift on an overnight flight, which he accepted.
The Fair Work Commission last month ruled in Macnish's favour, calling his sacking "mystifying" and saying Virgin had "no valid reason" to fire him.
Employment law expert Blair Scotland told Checkpoint on Wednesday an employer would "hardly ever" have any reason to probe into an employee's sex life.
"They could ask the hotel. They could ask you for your consent to ask for the hotel, but I can't see on the face of it how the hotel could just legitimately hand over this information without breaching the privacy laws of Australia, which have a lot of similarities to ours.
"If you did that in New Zealand as an employer or indeed as the hotel, you'd probably get into a whole lot of trouble."
Virgin forced to reinstate employee after wrongful sacking
He said there was an "undercurrent" of moral policing, with the airline admitting during the hearing if a straight, married employee had sex with his wife as a sleep aid, it would not be any of their business.
"The Fair Work Commission doesn't come out and openly say that, but it is questionable - particularly that comparison between the straight married couple, it's okay to use the fatigue policy and then have sex in the early hours of the morning, but not for the not for the gay man using the Grindr application…
"Of course, if an employee was outright lying and got caught… claiming they were sick when they weren't really, that might be a different story. But that's not the case here."
How heavily should employers monitor work trips?
Scotland said the same would apply to normal sick leave - if you were genuinely unwell, there was not a lot an employer could do to police your activities.
"Realistically, it's hard to see how any of this would be most employers' business to have to know anything about. I mean, how [did] they even got hold of the information about what was going on in the hotel?"
As long as your behaviour was not bringing the employer into disrepute, or literally crime, Scotland said "your time is your own", even on work trips, when you were not on the clock.
"When you knock off for the day, you know, it's generally not going to be the employer's business what you do - if you want to go to a movie, if you want to go to a bar, if you wanna use online dating apps - as long as it's not during 'work time', it's not really the employer's business."