Flight attendant wins lawsuit against airline after being fired for having off-duty Grindr relationship

A man has successfully won his unfair dismissal case against Virgin Airlines Australia.

“DM” started working for Virgin Australia in July 2022 but was abruptly fired in February this year. He filed a complaint with the country’s Fair Work Commission, claiming unfair dismissal.

Virgin Australia said it fired DM for “professional misconduct”. The airline claimed he had turned up to work hungover on several occasions. It also claimed he had phoned to ask to be moved to a later flight because he was tired.

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Following this request, his boss said she checked the CCTV of the hotel provided by Virgin where DM was staying and saw him with a male visitor he had met for a sex date.

Virgin also claims DM knowingly breached alcohol rules, including drinking a glass of prosecco at a Christmas party 7.5 hours before he was due to leave.

At his hearing, DM denied arriving at work hungover. He said he once told a colleague he was “dusty” but that he simply meant he was “tired”.

Medical incident

Besides the alcohol issue, there was the more complicated issue of connecting on Grindr.

Apparently an incident occurred on 25 November during a stopover between Perth and Brisbane. A passenger suffered what appeared to be a stroke at the check-in gate and DM assisted the passenger in a wheelchair. In doing so, the passenger accidentally urinated on DM’s sleeve.

This was the first time DM had been involved in a major medical incident of this type and it caused him some distress. He was due to fly to Perth at 8.20am the following morning. This was a ‘paxing’ flight, where an employee flies as a passenger but is available to work in the event of an emergency.

However, DM had trouble sleeping that night in the hotel provided by Virgin. The incident with the passenger continued to haunt his mind. Due to his lack of sleep, at around 4:30 a.m., he called and asked to be transferred to a flight later in the day. He hoped to get some more sleep and be well rested in case he was called to work on the flight.

Go back to sleep

DM admits that about an hour later, at 5:18 a.m., he met a man he had connected with on Grindr and brought him to his room.

“It was a physical relationship that would help him fall asleep,” the Fair Work Commission notes in its decision. “He met a person outside his hotel and they went to (DM’s) hotel room. They had sex and (DM) fell asleep shortly after.”

DM’s boss at Virgin, who was worried he would call her at 4.30am to change flights, suspected he might be partying. So she decided to ask for the hotel’s CCTV footage and DM’s swipe card activity.

After that, he was told he was being investigated for taking time off duty to participate in “social activities.”

DM admits that finding someone to have sex with may not be an orthodox solution to sleeping around, but “it is common in the gay community, and it worked for him,” according to the commission’s report.

Christmas party

DM admitted to drinking a glass of prosecco at a Christmas party his work threw. He then responded to a request from a crew member to join a night flight later that day. DM then contacted his bosses when a rumour circulated in the following days that he had been working while intoxicated. He admitted to drinking the glass seven and a half hours before the flight (in breach of the airline’s eight-hour rule).

Virgin cited this as the reason for DM’s dismissal, saying it had no approach to alcohol consumption. It cited his Grindr hookup and rumours he was hungover as reasons for its decision to fire the worker.

The Fair Work Commission has ruled in favour of DM, calling Virgin’s approach to fatigue management “confusing”. Under cross-examination, DM’s boss admitted that cabin crew used dating apps during layovers.

“(She) accepted that if a heterosexual married man had sex with his wife after resorting to fatigue, then it would probably not be within Virgin’s remit to comment on that situation,” Commissioner Pearl Lim wrote in her report. “Even if I had been satisfied there was a valid reason, it was still harsh in the circumstances and therefore unfair.”

“I consider that the appropriate remedy is reinstatement (to work),” Lim said.

Virgin Airlines Australia has 21 days to respond to the decision. It can choose to appeal. Last year, it successfully appealed a Fair Work Commission decision that ordered it to reinstate a cabin crew member it had fired for napping during a flight.

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