Legal: Bad behaviour can have dramatic consequences, even if you are off duty

A recent decision by Commissioner Cambridge of the Fair Work Commission, in which he declined to intervene in the dismissal of a Qantas pilot, is an important reminder of the need to keep the consumption of alcohol within limits that minimise the risk of inappropriate behaviour.

The pilot, who held the rank of First Officer, was 53 and had worked for the airline for nearly 20 years. He was the second-most senior of a flight crew of four on a trip from Sydney to South America and back. The plane arrived on a Saturday and was due to leave on a Monday morning. On the Saturday evening, the flight crew had some pre-dinner drinks then went to a restaurant and had dinner, with alcohol consumed during the dinner. They then went to a pub, and for part of the time there the First Officer separated from the others. After he rejoined his colleagues, they noticed after a short while that he had become rowdy, uninhibited, and his speech was slurred and unintelligible. He attempted to engage in conversation with young women at an adjacent table and attempted to touch the bottom of one of those women.

A decision was made that, because of his condition, the crew would return to the hotel. They did so in a taxi.

During the taxi journey, the First Officer reached his hand under the arm of a (female) Second Officer and “held and massaged her left breast despite (her) leaning forward and twisting around in an attempt to put herself beyond his reach”.

There was no dispute about these essential facts.

The First Officer was removed from duty by the Captain (after he received a report) and returned as a passenger.

He was subsequently dismissed on the basis of the (undisputed) serious misconduct in relation to the Second Officer.

The essence of his application to the Fair Work Commission was that termination was harsh “because it was a grossly disproportionate penalty for a single incident in a long and unblemished career of nearly 20 years as a Qantas pilot” and because of his personal circumstances. This submission was ultimately unsuccessful.

Although he was held to have been “highly intoxicated to such an extent that he was dispossessed of an ability to act with conscious intention”, his conduct could still amount to serious misconduct because “whatever may have been the precise reason for his elevated level of intoxication, the applicant took a decision which had a clear risk attached to it. Unfortunately for the applicant, that risk was realised and therefore personal culpability for his subsequent sexual harassment misconduct must follow”.

Although the Commissioner had “great sympathy” for him and indicated that if he was personally assessing the disciplinary action he “would have probably have avoided dismissal”, it was not the role of the Commission to stand in the shoes of the employer. He added: “Further, I understand and accept that because of the nature of the applicant’s occupation and in particular the requirements for employers’ confidence in the decision making capability of its pilots,” the dismissal did not call for any intervention by the Fair Work Commission and had not been established to be harsh, unjust or unreasonable.
This case, of course, turns on its particular facts, but it is a reminder that conduct closely associated with work on a work trip, even though at a time when not discharging duties, can lead to serious employment consequences. It also confirms that responsibility can be attributed even for unintended behaviour if that is the result of intoxication resulting from conscious decisions taken.

While it is appropriate that informal gatherings of work colleagues while on work trips will occur, and that alcohol will be involved, this case is an important reminder of the need to keep the consumption of alcohol within limits that minimise the risk of inappropriate behaviour, particularly behaviour in the nature of sexual harassment, which tribunals will treat as a serious matter in contemporary circumstances.

Andrew Knott
TressCox Lawyers

Queensland Teachers' Journal, Vol 120 No 3, 24 April 2015, p25