Flawed Workplace Investigations: why allegations must be proven
When an employee faces allegations of misconduct, employers must respond with caution, care, and fairness. It is not enough to act on assumptions, rumours, or second-hand reports — serious allegations must be properly investigated and proven with clear, objective evidence.
Even when multiple allegations are raised, each must be substantiated independently. If an employer fails to meet this standard, any resulting dismissal may be ruled unfair under Australian workplace law.
A case involving Virgin Australia shows exactly how an employer’s mishandling of internal concerns can lead to serious legal consequences.
Case Study: Virgin Australia Crew Member Wins Reinstatement After Flawed Investigation
Dylan Macnish commenced employment with Virgin Australia in July 2022. Allegations against him arose in late 2023, beginning with concerns that he had attended work hungover.
Virgin’s management believed Macnish had breached the airline’s drug and alcohol policies. However, Macnish explained that his references to being "dusty" referred to tiredness, not intoxication. Evidence showed many employees were unclear whether Virgin’s "eight-hour no alcohol" rule was an enforceable policy or simply a guideline.
Fatigue Management and Private Conduct Allegations
Following a medical emergency involving a passenger, Macnish reported fatigue and moved off an early morning rostered flight. Afterward, he arranged a private meeting in his hotel room through a dating app. Virgin accused him of faking fatigue for social activities and sought CCTV footage to support this claim.
Virgin further alleged that the medical incident Macnish reported had not occurred — despite external reports confirming otherwise.
Alcohol Consumption and the Virgin Christmas Party
Macnish also faced allegations related to a staff Christmas party. Virgin claimed that he breached alcohol policies by drinking before accepting a last-minute shift.
However, evidence showed that Macnish:
Consumed one glass of prosecco 7.5 hours before signing on
Checked Virgin’s Drug and Alcohol Management Plan
Self-tested his blood alcohol concentration
Confirmed compliance with company policies before working
Despite this, Virgin pursued disciplinary action and dismissed him.
The Commission’s Findings
The Fair Work Commission found that Virgin’s approach lacked fairness, objectivity, and a proper evidentiary basis.
Key findings included:
No breach of workplace policies regarding fatigue or private conduct.
No breach of drug and alcohol requirements — Macnish was compliant with all protocols before duty.
No support for the idea that fatigue was fabricated or that the medical incident had not occurred.
Importantly, Commissioner Pearl Lim stressed that allegations cannot be assumed to be true simply because they exist. Each allegation must be supported by clear, reliable evidence before it can form the basis for dismissal.
Because Virgin failed to meet this standard, the dismissal was ruled unfair, and Macnish was ordered to be reinstated.
Key Takeaways for Employees
1. Allegations must be properly proven.
Employers cannot rely on assumptions, gossip, or suspicion. Serious allegations must be individually investigated and backed by evidence. Even multiple allegations must each stand on their own.
2. Fatigue management is a legitimate and protected concern.
Employees who report fatigue — particularly after stressful incidents — are acting responsibly. Employers must not treat genuine fatigue management as misconduct without compelling proof.
3. Private, lawful behaviour outside of work is protected.
Unless a clear workplace policy forbids it, consensual private activities — including use of dating apps during layovers — do not automatically amount to misconduct.
4. Dismissals must be proportionate and consistent.
Even if an employee breaches a policy, dismissal must not be harsh, unreasonable, or inconsistent with how others are treated.
