In this case, thirty years of service was outweighed by a single severe incident, and dishonesty when it was being investigated.
A Qantas flight attendant has had her application for unfair dismissal remedy denied after the Fair Work Commission (FWC) decided that her dishonesty and intoxication was reason enough to fire her, despite having a blemish free track record for the previous 30 years.
In July last year, the flight attendant was working on an 11 hour flight from Sydney to Johannesburg.
It is alleged that the attendant drank a quarter of a litre bottle of vodka during the flight whilst on her own at the front gallery. A colleague notified their employer after the flight of the flight attendant’s drinking. Upon arriving at her hotel after landing in Johannesburg, the flight attendant was required to take an alcohol breath test which was positive.
The truth comes out
During the investigation into her misconduct the attendant told her employer and support person that she had bought the vodka from a duty-free store. But in September last year the duty-free store sent an email to the employer’s service and performance manager indicating that no cash purchases of alcohol were made in the relevant period.
When the attendant was presented with this evidence, she acknowledged that she had knowingly misled the investigation as she had drank the vodka from Qantas’s own supply on board. She was contrite about her dishonesty.
“I allowed the company to investigate something that I knew was false, I didn’t tell my support that I had misled the investigation until the evidence was overwhelming. I can only say that in my mind drinking company stores was worse than drinking my own,” the flight attendant told FWC Deputy President Geoff Bull.
“I deeply regret being untruthful about the source of the alcohol; I panicked and I lied. As the investigation continued the lie was perpetrated and in fact caused me even greater stress in hindsight than I would have experienced…if I told the complete truth from the beginning.”
The attendant said she was very willing to make up for it.
“[The flight attendant] states that she would have been prepared to undertake any program to keep her job or accept any other punishment from Qantas other than dismissal,” says the decision.
She submitted to the court that her dismissal was unfair because there was “inadequate consideration of [her] length of service, work performance, circumstances surrounding her misconduct and her financial issues”.
Those financial issues, she says, put stress on her family to the point where the night before her shift she had an argument and felt she couldn’t work the next day. Instead of calling in to say she wasn’t able to work she decided to go in because she felt “pressure to not call in unfit”.
HRM previously spoke to Michael Byrnes, a partner at Swaab law firm, about isolated cases of misconduct.
“If an employee has no blemishes on their record either in terms of conduct or performance and then it is found that they have engaged in some misconduct then the employee’s previous record would be a highly relevant consideration in determining what is the appropriate disciplinary action,” says Byrnes.
“Just because an employee breaches their obligations to their employer or engages in misconduct doesn’t mean that a termination of employment will be fair.
“The FWC will pose the question ‘Why was termination required in this particular case?’ And unless the isolated case of misconduct was so serious as to effectively render the continued employment of employee untenable then it is likely that the FWC will find that termination of employment for the isolated misconduct disproportionate.”
It’s clear that the employer thought her misconduct was severe. Her employer argued that dishonesty and intoxication and theft of Qantas alcohol were justifiable reasons for terminating her employment. They also said that her inability to fulfil her safety obligations on the plane was a determining factor.
It was the senior manager of cabin crew operations who advised termination was the best option.
In justifying his decision, the manager referenced the Cabin Administration Manual section 220.127.116.11 which says “a person acting as a member of the operating crew of an aircraft … shall not … be in a state in which…having consumed, used, or absorbed any alcoholic liquor, drug, pharmaceutical or medicinal preparation or other substance”.
The employer submitted that “[The flight attendant] was aware of the safety risks associated with the consumption of alcohol whilst engaged in a safety critical role and that consuming alcohol breached Qantas’s policies.”
On top of that, the Civil Aviation Regulations “prohibit any person acting as a member of the operating crew of an aircraft to have consumed any alcoholic liquor during the period of eight hours immediately preceding the departure of the aircraft or to be under the influence of alcohol while part of the operating crew.”
This fact alone was reason enough to dismiss her employment and it was one of the reasons why Bull found that Qantas had a valid reason for dismissal.
“A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a ‘valid reason’ for dismissal,” wrote Bull.
“Consuming on her own admission one quarter of a litre bottle of vodka provided the respondent with a valid reason for her dismissal.
“The applicant’s untruthfulness also provided a valid reason for her dismissal. It was an ongoing course of deception that led the respondent into inquiries over a lengthy period that it need not have embarked upon.”
A complex case
Bull writes that dismissals are never black and white. This case is particularly complex and he shows that by referencing the case of McHugh and Gummow JJ in Byrne v Australian Airlines.
“It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap.”
He went on to say that “Of all the matters put forward on [the flight attendant’s] behalf alleging unfairness including her personal circumstances, I consider her 31 years of good service as the most compelling.”
However length of service does not automatically outweigh a decision. Bull this time references the decision of Dawson v Qantas Airways Limited.
“We note the Applicant has been a long serving employee of the Respondent for 28 years and that, at 50 years of age, it may be difficult to gain employment as a flight attendant. Further, we empathise with the personal, family and financial circumstances of the Applicant. However, we are not satisfied that those circumstances outweigh the prohibited conduct the Applicant engaged in when employed by the Respondent.”
Bull empathised with the flight attendant as “it is regrettable that her poor judgement…has resulted in her loss of employment…There may have been a different outcome had [the flight attendant] been upfront and honest when it was first alleged she had consumed alcohol from company stores while on duty.”
The takeaway is exactly this point. What constitutes “unfair dismissal” is decided upon a case by case basis, and arrived at by looking at the particulars of the dismissal decision and the context around it. Qantas confirming with the duty-free store about its purchase history seems like it may have been crucial. So, for HR, the lesson is to gather all the appropriate evidence before making employment decisions. Because sometimes a single reason won’t be enough.
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