Unfair dismissal proceedings were commenced before the Fair Work
Commission in May 2014 by a Qantas pilot, Mr Gregory, following
termination of his employment as a result of an incident which took
place with fellow crew members on a layover in Chile.
Mr Gregory, a 747 First Officer employed by Qantas for 20 years,
flew into Santiago on 8 February 2014 and was due to fly out two
days later. On the evening of arrival during social drinks with his
work colleagues he left the group for 30 minutes or so. On his
return the group noticed his conduct had become problematic and
they decided to return him to the hotel.
While travelling in a taxi Mr Gregory touched the breast of the
female Second Officer who was visibly upset. This was observed by
colleagues and reported to the Captain who informed Mr Gregory the
next afternoon of his behaviour and that he would be stood down for
the return trip and subject to a drug test. Mr Gregory apologised
to the Second Officer and his apology was accepted.
On 10 February 2014 Mr Gregory underwent a drug test which
showed the presence of cannabinoids indicating he had ingested or
smoked cannabis. He was dismissed by Qantas on 7 May 2014 on
account of serious misconduct, namely sexual harassment of a female
Fair Work Commission
Mr Gregory then made an unfair dismissal application to the FWC.
He argued that he had not taken cannabis but rather been the victim
of drink spiking and as such there was no valid reason for
termination of his employment rendering the termination unfair. Mr
Gregory did not deny the sexual harassment but maintained he was
not responsible for the conduct due to his drink being spiked.
Qantas argued the evidence, namely the drug test results, did
not support the argument that Mr Gregory's drink was spiked and
rather indicated Mr Gregory had smoked cannabis while absent from
his colleagues, returned affected by the drug and alcohol he had
been drinking and then sexually harassed the Second Officer.
At first instance Commissioner Cambridge concluded the evidence
did not support any finding that drink spiking caused Mr Gregory to
be affected by drugs, and that rather he had separated from
colleagues as a deliberate act in pursuit of cannabis which he then
imbibed. Commissioner Cambridge also held Mr Gregory was culpable
for his sexual harassment of a female colleague, even though he did
not consciously intend to sexually harass that colleague, on
account of his decision to imbibe cannabis which presented a risk
that his behaviour would be altered. The Commissioner also had
regard to the confidence Qantas must have in its pilots which was
eroded by Mr Gregory's conduct.
Mr Gregory sought to appeal the decision. In dealing with leave
to appeal the Full Bench of the FWC concluded there was no
appealable error in Commissioner Cambridge's judgment.
Federal Court of Australia
Mr Gregory then appealed the Full Bench of the FWC's
decision to the Full Court of the Federal Court of Australia
(FCA). The Full Court of the FCA found the Full
Bench of the FWC had not properly performed its task in dealing
with the application for leave to appeal Commissioner
Cambridge's decision. In particular the Full Bench had exceeded
its jurisdiction by purporting to deal with the merits of the
appeal without conducting a hearing enabling Mr Gregory to advance
However, the Full Court of the FCA also dismissed the argument
that there was any jurisdictional error in Commissioner
Cambridge's decision and remitted the application for leave to
appeal to the Full Bench of the FWC.
Key learnings from this case
Employees engaged in the taking of
illicit drugs in social outings with work colleagues are
responsible for their actions while affected by those drugs;
The nature of the job and its
responsibilities will be relevant when examining serious
Think carefully about appealing a FWC
Full Bench decision not allowing an appeal when the first instance
decision of a single Commission member is a comprehensive and
An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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