The FWC has confirmed the right of employers in safety-critical industries to dismiss workers whose out-of-hours conduct impairs the safe performance of their duties, in the case of a flight attendant who called in sick during a layover after being hospitalised with a blood-alcohol reading of .205.
In upholding the dismissal by Qantas subsidiary QF Cabin Crew Australia Pty Limited (QCCA) of the employee for breaching numerous company policies, Deputy President Lyndall Dean cited two previous decisions involving the airline that established the tribunal's approach to such cases.
"The issue of off duty conduct of flight attendants in slip ports has been considered by the Commission in [2001's] Roach v Qantas Airways Limited," the deputy president said (see Related Article).
"There [Senior Deputy President Rob] Cartwright held that 'from the point when a flight attendant signs on for a pattern of duty, including slip time, he or she is in a safety critical role, for which Qantas is subject to regulation by the Civil Aviation Safety Authority' and 'the availability and fitness for duty of flight crew through the full pattern is a legitimate concern for the airline'.
"Similarly in Farquharson v Qantas Airways Limited the full bench found that it was 'the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees' (see Related Article).
Deputy President Dean heard evidence that nearing midnight on July 22 last year a colleague had found the flight attendant vomiting in the bathroom basin of a New York rooftop bar after they had each consumed what the colleague initially told management was two peach martinis and six gin and tonics.
When the flight attendant collapsed to the floor his colleague called an ambulance and he was transported to nearby Greenwich Hospital, which recorded a blood-alcohol reading of .205 before releasing him at 6am.
The airline covered the $20,000 bill for the ambulance and hospital treatment.
Due to work on a New York-Los Angeles flight that evening, the flight attendant told the airline he was too ill and he returned to Australia four days later as a passenger.
Qantas suspended him on pay while it conducted an investigation and then dismissed him on November 2, despite his claims that he'd only had a total of five drinks and they must have been spiked to evince such an extreme reaction.
"The key issue for determination is whether [the flight attendant] consumed excessive alcohol while on slip in New York, causing him to be unable to perform his flying duties, in breach of the relevant Qantas policies," Deputy President Dean said.
Evidence from expert witnesses before the tribunal suggested the flight attendant had consumed between 14 and 18 standard drinks in less than two hours.
"After a careful consideration of all the mitigating factors put forward by [the flight attendant]. . . I am unable to conclude that his dismissal by QCCA was unfair and I do not consider his dismissal was disproportionate to the gravity of the misconduct," the deputy president concluded.
Luke Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436 (31 July 2018)