Flight of fancy – flight attendant’s claim that excessive drinking was not his fault rejected by FWC in unfair dismissal case

In Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436 the Fair Work Commission (FWC) considered whether a flight attendant was unfairly dismissed after he failed to attend for work following a night out in New York.

The flight attendant was scheduled to operate a seven-day flight pattern of Brisbane-Los Angeles-New York-Los Angeles-Brisbane.

After arriving in New York, the flight attendant visited a bar with another employee. The flight attendant claimed to have had five drinks in the course of the evening but, at about 11.40pm, he was discovered by his colleague collapsed on the floor of the toilets in the bar and was subsequently taken to hospital where his blood alcohol concentration was tested and found to be 0.205%.

The flight attendant was discharged from hospital at about 6.00am the following morning and was due to operate a flight to Los Angeles departing at 5.10pm that afternoon. The flight attendant contacted his manager to advise that he was still feeling unwell and would not attend for work.

The flight attendant later flew to Los Angeles as a passenger and returned to Brisbane four days after his discharge from hospital.

Upon arrival in Brisbane, the flight attendant was met by the employer’s Service and Performance Manager who advised him that he would not be permitted to operate a flight until he was medically cleared to do so.

The employer then commenced an investigation into the flight attendant’s conduct and the events in New York. The employer’s investigation found that the flight attendant had consumed in excess of five standard drinks and he had breached the employer’s policies and procedures. In particular, the flight attendant had:

  • failed to ensure that while on slip (time off duty between flights) he was adequately rested and able to perform his next operational duty;

  • failed to be ready, willing and able to perform his next operational duty;

  • failed to abstain from activity that would increase the risk of illness that would prevent him from performing his next operational duty; and

  • engaged in excessive use of intoxicating liquor while on slip.

Ultimately, the employer found that the flight attendant had failed to live up to the standards expected of him as their employee.

The employer subsequently commenced a disciplinary process with the flight attendant and invited him to respond to the allegations against him and show cause as to why his employment should not be terminated.

The flight attendant claimed that he had not intentionally placed himself into the situation that eventuated in New York and argued that he would normally be fine after five drinks, but the bartenders at the bar in question did not measure the shots they poured into mixed drinks, but rather “free poured”. The flight attendant claimed that this resulted in the drinks he consumed being stronger than anticipated. The flight attendant also said that he believed his drinks were spiked.

The flight attendant expressed remorse for the totality of the circumstances but denied that his conduct was intentional.

The employer dismissed the flight attendant on the basis of misconduct, and the flight attendant lodged an unfair dismissal application with the FWC.

In the proceedings before the FWC, the flight attendant claimed that there was no valid reason for his dismissal because his conduct had not been intentional, his alcohol consumption was incorrectly characterised by the employer as “excessive” and his drinks were “free-poured” and spiked.

Having considered the evidence presented by the parties, the FWC rejected the flight attendant’s arguments. The FWC considered the evidence of two medical experts regarding the flight attendant’s intoxication and whilst they were unable to agree on the exact number of drinks the flight attendant had consumed, they did agree that it was likely he consumed around 14 standard drinks at the bar in New York during over a 1.5-hour period. The FWC considered this to be an excessive amount of alcohol.

Significantly, the FWC noted that it was the flight attendant’s responsibility to ascertain the content and quality of the drinks he consumed and there was no evidence that his drinks had been spiked. The FWC considered it “implausible” that the flight attendant did not feel intoxicated whilst at the bar such that he would not adjust his intake of alcohol accordingly,

“In the end, it is Mr Urso who is responsible for putting himself in a situation where his consumption of alcohol caused him to fail in his duty to join his scheduled flight as crew member on 23 July 2017.”

Further arguments made by the flight attendant about the harshness of his dismissal were also rejected by the FWC and it was held that the employer had followed a reasonable disciplinary and termination process.

The flight attendant’s unfair dismissal application was dismissed.

Lesson for employers

This case demonstrates the manner in which the conduct of an employee outside of working hours can impact on their ability to perform their duties and the steps an employer can take in response.

Employers should maintain clear policies setting out expectations for employee conduct and the consequences for failing to live up to those standards. Employers should also follow consistent and fair investigation and disciplinary processes to ensure that procedural fairness obligations are met.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog.

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