Pilot Dismissed by Qantas for Sexual Misconduct
Wednesday 3 June 2015 @ 11.50 a.m. | Industrial Law
The Fair Work Commission has upheld Qantas’ decision to dismiss a pilot who sexually harassed a colleague while intoxicated in the case of Gregory v Qantas Airways Ltd [2015] FWCFB 1154. The pilot had argued that though his behavior was inappropriate, it was not voluntary due to his drink being spiked prior to the incident and so he should not be held responsible. However, the Commission rejected this claim on the balance of probabilities.
Background Facts
The pilot was part of a flight crew that flew from Sydney to Santiago on the 8th February 2008. Upon arriving, the crew checked into a hotel for a stopover period prior to returning to Sydney two days later. The pilot as well as the rest of the crew began alcohol consumption at approximately 5:30pm upon checking into the hotel. The crew continued to enjoy the night at various establishments where more alcohol was consumed. After dinner, the crew arrived at an Irish pub selected by the pilot on the basis that he had prior knowledge of the pub.
Upon arrival, the pilot went away from the crew for a period of twenty five to thirty minutes in which time he was seen to have spoken to an unknown person. When he returned, the crew noticed a significant change in his behaviour which they concluded meant he was highly intoxicated. The party decided to return to the hotel via a taxi cab. During the trip, the pilot had held and massaged one of his colleague’s breasts. The pilot would later apologise to the crew insisting that his drink had been spiked on the night of the event.
Qantas terminated the employment of the pilot on the basis of serious misconduct found to have occurred in respect to the incident of the evening/morning of 8/9 February in Santiago.
Commission Decision
The pilot appealed his termination on the basis that the decision was harsh, unjust and unreasonable. He asserted that he had left his crew at the pub to order a drink to visit the bathroom and while he was in the bathroom, his drink had been spiked and his food had been laced with cannabis so that his behaviour was involuntary. In support of this theory, the pilot stated that he had worked for Qantas for over 20 years without incident and that it did not make sense for him to consume cannabis and large amounts of alcohol in the presence of the Captain of the flight.
The Commission found no available evidence to suggest this drink and food had been tampered with. Qantas submitted that the actual course of event was that the pilot had left the crew to smoke cannabis and drink even more alcohol. The Commission found this to be the more likely scenario on the balance of probabilities. Therefore the pilot was knowingly responsible for the serious misconduct by putting himself into a state of intoxication. Therefore the dismissal of the pilot was not harsh, unjust or unreasonable.
The Commission did note that he would not have dismissed the pilot based on one bad decision. However, he affirmed that it was not the position of the Commission to stand in Qantas’ shoes and that it was the decision of the employer based on the nature of the occupation.
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