Out of work hours behaviour still a problem

Legal Case - Sexual Harassment

​Published: 30 Aug. 2016​

A long running unfair dismissal case by a Qantas pilot accused of sexual harassment while out drinking with colleagues was recently rejected for the second time.​

The facts   

The crew on a return flight from Sydney to Santiago, Chile had several days’ layover and went out together in Santiago. One of the pilots left the group at one stage and returned after thirty minutes, apparently worse for wear. After he tried to touch the bottom of a young woman at a nearby table, the crew decided to catch a taxi back to their hotel. 

During the taxi ride he attempted to touch a female colleague sexually and she reported this to the captain. The captain stood him down and a subsequent urine sample identified the presence of cannabinoids. After an investigation, he was found guilty of serious misconduct involving sexual harassment and was dismissed and given five weeks pay in lieu of notice. ​

The arguments

To decide whether or not a dismissal is unfair, the Fair Work Commission must first consider whether there was a valid reason for the dismissal. It then has to determine whether or not it was ‘harsh, unjust or unreasonable’.

The pilot claimed that his drink must have been spiked while he was away from the crew, and he did not touch the female crew member intentionally. He argued that there was therefore no valid reason for his dismissal, and to dismiss someone with his unblemished 20 year record was harsh and disproportionate. 

The Fair Work Commissioner agreed that the pilot’s advances were not intentional because he was so intoxicated that he was unable to act with conscious intent. However the Commissioner was not persuaded by the drink spiking theory, and thought it more likely that the pilot had left the others to go in search of cannabis. There was therefore a valid reason for his dismissal.  

Harsh, unjust or unreasonable?​

The Commissioner said that standards of behaviour had to be very high in the case of an occupation such as commercial pilot, and the pilot’s dismissal was not harsh, unjust or unreasonable in all the circumstances of the case. 

The Commissioner also suggested that Qantas should reconsider its policy on the activities of flight crews to clarify expected behaviour while on stopovers.

Decision​

This decision has now been twice upheld on appeal by the Full Bench of the Fair Work Commission. The Full Bench agreed with the Commissioner that the argument that his drink was spiked was ‘somewhat speculative’ and that expert evidence on the issue was inconclusive. He had knowingly consumed cannabis and alcohol and put himself in a state in which he sexually harassed a colleague.

The Commissioner had ‘logically concluded’ that Qantas had a valid reason to dismiss him and that dismissal was not ‘harsh, unjust or unreasonable’ in the circumstances. 

Take home points​

  • Behaviour to work colleagues at a social function can still be sexual harassment.
  • Employers should make sure that employees understand what is acceptable behaviour in all work-related contexts.
Gregory v Qantas Airways Limited [2015] FWC 1154 (27 February 2015); Gregory v Qantas Ltd [2015] FWCFB 2599 (24 April, 2015); Gregory v Qantas Airways Ltd [2016] FWCFB 2108 (3 May, 2016)

Back to September 2016 - Equal Time Newsletter​​​​​

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