Virgin Australia may have invaded the privacy of a cabin crew member when it accessed hotel CCTV footage and room swipecard records which revealed he had organised a Grindr hookup, legal experts say.
The Fair Work Commission in August overturned the sacking of the crew member, Dylan Macnish, after two separate incidents in 2023. Experts say the case raises serious questions about the extent of workplace surveillance.
One incident involved Macnish drinking a glass of prosecco at a 2023 Virgin Christmas party seven and a half hours before he was due to work on a red-eye flight – despite the airline’s rules stating cabin crew members could not consume alcohol within eight hours of being on duty.
The other involved Virgin alleging Macnish had breached the company’s fatigue policy by arranging a hookup on the gay dating app Grindr in the early hours of the morning at a Brisbane hotel where he had stayed overnight – after asking for a roster change due to fatigue.
The Fair Work Commission ruling outlined that in November last year Macnish requested to be moved to an afternoon flight rather than returning to Perth on an 8am plane where he was due to be a passenger but could be called on to work. He said his request was due to fatigue – saying he had not been able to sleep after a medical incident with a passenger on his flight the previous night.
After he was moved to the afternoon flight, Macnish organised casual sex through Grindr, according to the Fair Work Commission ruling, “on the basis that having a physical interaction with someone would help him fall asleep”. Later in the morning Macnish fell asleep before departing the hotel and attending his afternoon shift.
Virgin’s lead for crew culture, Lydia Ridge, said because Macnish had made the request more than four hours before his rostered sign-on, she was concerned he had been out all night. She told the Fair Work Commission that Macnish had previously sought to be taken off the roster due to fatigue three times in three months.
During her investigation, Ridge requested CCTV footage of Macnish’s hotel hallway and room swipecard records. Virgin later wrote to Macnish saying he was being investigated for misconduct, saying that footage showed him leaving his room at 5.13am and returning with a guest five minutes later. The guest then left at 9am. Virgin argued that Macnish had requested the roster change to engage in “social activities”.
After the investigation, the company terminated Macnish’s employment in February. Fair Work overturned his dismissal in mid-August and later rejected Virgin’s appeal against the decision. This week the body denied Virgin’s application for a stay on the order to reinstate Macnish.
Virgin accessing CCTV footage from the hotel was not addressed in the Fair Work ruling. But Patrick Turner, the employment principal lawyer at Maurice Blackburn, said it could have breached Macnish’s privacy.
“There might be issues under the Privacy Act, certainly for the hotel in terms of the material that it’s collected, the personal information and people that have been filmed on the CCTV footage, and it might be said that the swipecard record also contains the applicant’s personal information as well,” Turner told Guardian Australia.
Whether accessing the material was a breach of privacy would depend on what agreements Macnish had signed, Turner said.
“If that’s been provided to Virgin or volunteered to them without his consent, there might be issues under the Privacy Act. Part of it might turn on what he signed or agreed to in terms of any waiver … they might have issued as part of providing accommodation for the night. [It is] certainly unusual.”
A spokesperson for Virgin Australia did not respond when asked whether there was such a clause in Macnish’s contract – but said the company had accessed the footage and swipecard records lawfully and did not have an arrangement with the hotel to facilitate access to footage.
Dr Jacqueline Meredith, a law lecturer at Swinburne University, said the case raised complex legal issues related to the surveillance of workers and the boundary between work and private life.
“Even though it is not enforceable as a separate legal right, it has been explicitly recognised by Australian courts and industrial tribunals that employees enjoy a right to private life which must be considered when determining if there is a ‘valid reason’ for dismissal related to off-duty conduct,” she said.
“This means, for instance, that employees have a right to private life while in their hotel room during a work-related trip even if the hotel has been paid for by their employer.”
But Meredith said flight attendants held safety-sensitive positions and airlines had a greater interest in a worker’s off-duty conduct than other employers.
“In this context, an employee’s privacy concerns in relation to their personal off-duty activities can sometimes be outweighed by the employer’s work health and safety obligations.”
In her ruling overturning Macnish’s dismissal last month, the Fair Work commissioner Pearl Lim said Virgin’s conduct when investigating the hotel incident was “mystifying”. She said it was not unusual for friends or family to stay with staff in hotels.
Ridge acknowledged under cross-examination that it was common practice for employees staying in Virgin-provided accommodation on layovers to use dating apps.
“During Ms Ridge’s cross-examination, Ms Ridge 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,” Lim said in her 13 August ruling.
“There is nothing wrong with using dating apps for casual sex. What happens between informed and consenting adults is their own business, unless it breaches a lawful and reasonable workplace policy.”
Lim also ruled it was “not unreasonable” that Macnish would have understood Virgin’s eight-hour alcohol rule as “a guideline”.
The United Workers Union, which covers workers in industries including tourism, told a Victorian parliamentary inquiry on workplace surveillance in July that its members had reported CCTV “over-reach” with footage used for disciplining and terminating workers.
“Typically, management will retroactively review security footage in an attempt to find a worker infraction,” the union said in a submission.
The Victorian Trades Hall Council’s submission to the inquiry said often the only option for workers was to consent to surveillance or not take the job – and that needed to change.
“Employers are not agents of law enforcement, psychiatrists or priests – the private lives of working people are none of their business,” the council said.
“It is not their place to meticulously monitor workers’ personality dispositions … when they go to bed, how they spend their weekends … their gender identity or their medical histories.
“The only legitimate information to gather during the employment relationship is that concerning a worker’s ability to undertake their role under fair and reasonable condition.”
Turner said workplace surveillance was a “vexed issue”.
“There’s a critical need to balance the rights of workers to privacy, but also there can be some safety considerations that mean that some level of surveillance is warranted,” he said. “But invading people’s privacy when they’re sleeping somewhere, when they’re staying overnight, I think is a bridge too far.”
