Australia: Employer had a valid reason to dismiss a flight attendant who called in sick due to intoxication

In a recent case, Luke Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436, the Fair Work Commission found the dismissal of a flight attendant because he was highly intoxicated during a layover was not unfair.

Mr Urso was employed as a flight attendant with QF Cabin Crew Australia Pty Limited (QCCA), a subsidiary of Qantas Airways Limited (Qantas).

On 22 July 2017, Mr Urso was 'on slip', the term used when cabin crew are away from base and waiting for their next operational duty, in New York. He attended a bar with a fellow crew member, Mr Littmoden, between 10:00pm and 10:30pm. Mr Urso said he consumed two peach martinis and three gin and tonics.

At around 11:40 that night, Mr Urso was removed from the toilets by Mr Littmoden as he had collapsed. An ambulance was called around midnight and Mr Urso was admitted to hospital. The hospital toxicology report recorded a blood alcohol level of 205mg/dL and returned a blood alcohol reading of 0.187.

The following day on 23 July 2017, Mr Urso was scheduled to operate on a flight back to Australia. He did not operate on the flight as he felt unwell.

On 15 August 2017, Mr Urso was stood down while QCCA commenced investigation into his conduct while on slip. Mr Urso was advised that there were allegations of serious misconduct.

On 5 September 2017, Mr Urso received an allegation letter stating he had consumed an "excessive amount of alcohol", was found "vomiting in the lavatory basin, collapsing on the floor and/or becoming unresponsive", "had to be physically removed" and was taken to hospital via ambulance where he had a blood alcohol reading of 0.187. The allegation letter also stated that he failed to operate home as a flight attendant on 23 July 2017.

Mr Urso was advised that his conduct may have been in breach of various Qantas policies and his conduct may result in his dismissal.

Mr Urso responded by letter, arguing that he only had five drinks, which was not "excessive" as it was the amount he usually consumed. He believed his drinks must have been spiked as he did not usually have a negative reaction to five drinks. He also brought up that the drinks were "free pour[ed]" which he did not know at the time.

After providing a response to the allegations, Mr Urso met with a Customer Experience Manager and a Service and Performance Manager. He was later informed that all seven of the allegations against him had been substantiated.

Mr Urso claimed he had made changes to his personal life following the events that occurred on slip and would be willing to be placed on a Drug and Alcohol Management Plan. He also said he would agree to refrain from alcohol consumption while on overseas slips for 12 months.

On 2 November 2017, Mr Urso was provided a letter of termination. The reasons for termination was Mr Urso's behaviour while on slip and the resulting breaches of Qantas policies. The letter also stated that Mr Urso was not honest during the investigation as there was no evidence of drink spiking. The Director of Medical Services at Qantas estimated a minimum of approximately 18 standard drinks over 3 hours would have to be consumed to return a blood alcohol reading of 0.187.

Mr Urso argued his termination was harsh, unjust or unreasonable.

Decision

The Fair Work Commission held the dismissal was not harsh, unjust or unreasonable.

Firstly, Mr Urso's submission that he did not intend to engage in serious misconduct and thus his behaviour should be excused, was rejected. Additionally, as no evidence was led that Mr Urso's drink was spiked, this submission was likewise rejected. To the contrary, evidence from expert witnesses suggested that Mr Urso had consumed between 14 and 18 standard drinks in less than two hours. Mr Urso's voluntary consumption of alcohol was held to constitute a valid reason for dismissal as he failed to report to work the following day as a result.

The safety critical role of a flight attendant was also of importance. Citing Farquharson v Qantas Airways Limited (2006) AIRC 488, it was further held by the Commission that as Qantas was subject to quite serious regulatory safety standards, it had a legitimate interest in the slip time conduct of Mr Urso which was far greater than the usual interest of an employer in the out of hours conduct of its employees.

The Fair Work Commission found Mr Urso had breached the QCCA policies and because he was not ready, willing and able to perform his duties. Therefore, QCCA had a valid reason for dismissal, and the dismissal was not disproportionate to the gravity of the offence.

Key issues for employers

Employers should be aware that when a valid reason for dismissal exists, but the employee claims they did not intend to breach a policy or engage in serious misconduct, this does not excuse the behaviour. Therefore, employers may be able to commence disciplinary action against employees even if the employee did not intend the consequences of their actions.

Further, in safety-critical industries, employers will likely have a valid reason to dismiss an employee where the safe performance of their duties is impaired by their out of hours conduct.

Read the full decision here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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