By Mike Toten Freelance Writer

An airline employee was unfairly dismissed because the airline’s rules regarding alcohol consumption pre-work shifts were neither clear nor clearly accessible. Also, its rules regarding the risk of fatigue to employees were unclear and inconsistently applied. Finally, the employee had taken reasonable steps to check whether he was “in the clear” before starting his work shift. The Fair Work Commission (FWC) ordered his reinstatement.

Facts of case

The employee, a flight attendant, had drunk alcohol 7.5 hours before starting a work shift. He had been at a work staff party, and while attending it agreed to fill a flight shift at short notice. He claimed he had notified the cabin crew manager pre-flight and also breathalysed himself (with a result of zero). He claimed that the manager had told him that the “8 hour rule” was just a “guideline”, and to “check the policy manual”, which he did.

The airline also alleged that, about one month earlier, he breached its “fatigue policy”. He had requested a roster change because he claimed he was fatigued from having to assist a seriously ill passenger, causing stress that prevented him from sleeping. After the roster was changed, he used a dating app to invite another man to his hotel room and had s*x instead of resting. He claimed that doing this helped him to sleep.

However, the airline’s alcohol and drugs policy, including the “8 hours before” rule, was buried within three documents and was hard for employees to locate. The employee claimed he thought it was a guideline, not a rule, and produced evidence that other employees (including the cabin crew manager he consulted) regarded it the same way. The main policy manual that was supposed to contain the policy did not refer to the rule. Eventually, airline office staff found it within a crew member’s manual. 

The FWC found that it was reasonable for employees to assume that everything they needed to know about an alcohol/drug policy would be within the main employee policy manual. Its wording stated expressly that it applied to all employees and was a consolidation of the airline’s policies and procedures covering alcohol and drugs at work. 

Decision

Although the employee did breach the “8-hour rule” (just), this was not a valid reason for dismissal. Further, he had taken proactive steps to try to verify that he was fit for work. He was also entitled to assume that the main policy manual contained all the relevant information he needed to know. 

In relation to the alleged breach of the “fatigue policy”, the FWC found that the employer would not typically enquire into what an employee did after accessing the policy (eg what a married employee might do at home). The employee was genuinely fatigued by the work incident and engaged in s*x in his hotel room to help him to sleep. It was common practice for airline employees to use dating apps when on stopovers between flights, so it was unfair to discipline one employee for doing it.

The FWC found the employee was unfairly dismissed and ordered his reinstatement.

What this means for employers

Employment policy manuals tend to be voluminous these days, so it is important to make them as readily accessible and understandable to employees as possible. 

For a policy such as alcohol/drug consumption, all relevant information should be provided in a single source, which should be made available to all employees covered by it, and backed up by training to ensure they understand how to comply with the policy, and what the consequences will be if they don’t.

Read the judgment

Macnish v Virgin Airlines Australia Pty Ltd [2024] FWC 2154 (13 August 2024)