DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Steven Gregory
v
Qantas Airways Limited
(U2014/7543)

Application for unfair dismissal remedy - serious misconduct - sexual harassment of female colleague whilst socialising during stopover in foreign port - act of misconduct not disputed - alleged drink spiking asserted to have made conduct not attributable to intentional action of applicant - intoxication at time of misconduct - determination as to whether applicant was responsible for level of intoxication - occupational context relevant to level of personal culpability for misconduct and assessment of harshness - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 27 May 2014. The application was made by Turner Freeman Lawyers acting on behalf of Steven James Gregory (the applicant) and the respondent employer is Qantas Airways Limited (the employer or Qantas).

[2] The application indicated that the date the applicant’s dismissal took effect was 7 May 2014. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 4 and 5 December 2014, and 22 January 2015.

[4] At the Hearing, Ms K Nomchong, Senior Counsel, appeared for the applicant. The applicant and two other witnesses were called to provide evidence in support of the claim. Ms Nomchong also introduced a number of other witness statements which were admitted as evidence. The employer was represented by Mr R Warren, Barrister, who was instructed by Ashurst Australia solicitors. Mr Warren called two witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a man of some 53 years of age who has worked as a Qantas pilot for nearly 20 years. The applicant had progressed in his career to the level of an international pilot rated as a First Officer (F/O) flying B747 aircraft.

[6] The applicant was the F/O as part of a B747 crew which was scheduled to fly Sydney to Santiago, Chile and return, between 8 and 12 February 2014. The flight crew for this trip comprised 4 persons; the Captain named Hawkins; the F/O who was the applicant; and two Second Officers (S/Os), one of whom was a woman who shall be referred to as “S/O x” and the other was named Pratt. S/O x was the only female member of the four person flight crew.

[7] On Saturday 8 February 2014, the Qantas B747 flight QF27 made an uneventful flight from Sydney to Santiago arriving around the middle of the day local Santiago time. The flight crew (as well as the cabin crew) then proceeded to the Intercontinental Hotel in Santiago arriving at the hotel at about 2:00 pm that afternoon, Saturday 8 February. The crew of flight QF27 were accommodated to stay at the hotel during the period of a stopover (or “slip time”) until the return flight, QF28, leaving Santiago on the early afternoon of Monday 10 February 2014. Therefore, the stopover encompassed the remainder of the Saturday, 8 February, all of Sunday the 9th, and then the period of the Monday morning before departure for return to Sydney.

[8] The flight crew arranged to meet and socialise together on the Saturday evening of 8 February. They had planned to meet for a drink before going on to dinner together. The four members of the flight crew met in the applicant’s hotel room from around 5:30 pm. The applicant had purchased a 1.25 litre bottle of rum and he, Captain Hawkins, and S/O x consumed somewhere between less than one half but more than one third, of the bottle of rum as they mixed it with cola during the pre dinner drinks in the applicant’s hotel room. S/O Pratt drank only the cola while in the applicant’s hotel room.

[9] At about 8:30 pm the flight crew walked to a nearby restaurant. At the restaurant both before and during the meal, all members of the flight crew consumed some alcohol in the form of beer and red or white wine. At about 11:15 pm the flight crew decided to catch a taxi from the restaurant to a bar and nightclub precinct of Santiago called Bellavista.

[10] The flight crew arrived at an Irish pub in the Bellavista area at about 11:25 pm. The Irish pub had been selected because the applicant and S/O x had been there about six weeks earlier on a previous stop over. Shortly after arrival at the Irish pub the applicant separated from the other three members of the flight crew. The pub was very busy and crowded and the applicant was seen talking to a person unknown to the other flight crew. The three flight crew who were then without the applicant, sat at a table and consumed alcoholic drinks. At one point S/O x left Captain Hawkins and S/O Pratt at the table and looked for the applicant but she returned to the table after a short time without finding the applicant.

[11] After a period of approximately 25 to 30 minutes the applicant reappeared and came to the table where the three other flight crew were seated. The flight crew group was then reconstituted to include the applicant and the four individuals consumed some more alcohol. Shortly after the applicant’s return to the group the other members of the flight crew noticed a significant change in the applicant’s demeanour and behaviour. The applicant displayed various signs usually associated with being highly intoxicated. He had become rowdy, uninhibited and his speech was slurred and unintelligible. He attempted to engage in conversation with young women at an adjacent table and he attempted to touch the bottom of one of these women.

[12] At about 12:30am the other members of the flight crew decided that because the behaviour of the applicant was making others uncomfortable, they should leave the pub and take the applicant back to the hotel. The applicant agreed with the suggestion to leave the Irish pub and the four flight crew took a taxi from the Bellavista area back to the hotel.

[13] The taxi ride back to the hotel took between 10 to 15 minutes. In the taxi Captain Hawkins sat in the front seat, the applicant sat in the back left side seat, behind the driver, S/O x sat in the back middle seat and S/O Pratt sat in the back right side seat. During the taxi journey the applicant reached his hand under the arm of S/O x and he held and massaged her left breast despite S/O x leaning forward and twisting around in an attempt to put herself beyond the applicant’s reach. At one point during the taxi journey S/O Pratt noticed that the applicant was touching S/O x’s breast and that she was attempting to get away from that unwelcomed contact so he pushed the applicant’s hand away from S/O x’s breast.

[14] Upon arrival at the hotel, S/O x realised that she did not have her room key so S/O Pratt accompanied her to the reception desk to assist her with obtaining another key. At this point in time Captain Hawkins and the applicant separated from the two S/Os. The S/Os got another room key and went into the elevator together at which point S/O Pratt mentioned his disapproval of the applicant’s action in the taxi. S/O x became upset and she was consoled by S/O Pratt who then took her to her room and ensured that she entered with the replacement key.

[15] S/O Pratt’s room was located on another floor of the hotel so once he had escorted S/O x to her room he returned to the elevator whereupon Captain Hawkins and the applicant stepped out as they had rooms on the same floor as S/O x. S/O Pratt caught the attention of Captain Hawkins while the applicant unsteadily proceeded to his room. S/O Pratt told Captain Hawkins about what had occurred in the back seat of the taxi. Captain Hawkins was alarmed by the incident as reported to him by S/O Pratt. Captain Hawkins then went to his room and telephoned S/O x who agreed to meet with Captain Hawkins in the hotel lobby.

[16] Captain Hawkins and S/O x met in the hotel lobby and they discussed the incident which had occurred in the taxi for nearly an hour. After Captain Hawkins had concluded his discussions with S/O x he walked past the applicant’s room on the way to his own room and he noticed that the door to the applicant’s room was open and that the applicant had passed out on the floor of the room. Captain Hawkins checked that the applicant was breathing, took a photo of the applicant with his mobile phone and shut the applicant’s room door before returning to his own room.

[17] About two hours later at approximately 3:30 am Santiago time, the applicant attempted to make contact with his wife in Australia. The applicant first made telephone and then Skype contact with his wife. The applicant’s communications with his wife at this time were broadly incomprehensible.

[18] On the Sunday morning, 9 February, Captain Hawkins decided to stand down the applicant so that he would not form part of the flight crew for the return trip the next day. Captain Hawkins contacted the applicant in his hotel room at about 1:30 pm and advised him of the stand down. The applicant was remorseful and apologetic and he indicated that he could not remember much about the events of the previous night after the point in time when they arrived at the Irish pub.

[19] Following his discussion with the applicant, Captain Hawkins advised S/O x of the applicant’s remorse and she accepted the applicant’s apology such that she then made contact with the applicant. During the Sunday the four flight crew members met again and discussed the events of the previous night. During these discussions the suggestion was made, initially by S/O x, that the applicant may have had his drink spiked at the Irish pub.

[20] On Monday 10 February, the applicant received written confirmation from Qantas that he had been withheld from service and that he was directed to undertake a drug test in Santiago later that day. The applicant subsequently provided a urine sample at about 4:24 pm on 10 February and he returned to Australia on a flight that departed Santiago the following day, 11 February. The applicant arrived back in his home town of Brisbane on the evening of 12 February and he undertook, at his own volition, further drug tests the following day, 13 February.

[21] The results of the drug test on the urine sample taken on 10 February in Santiago identified the presence of Cannabinoids, specifically 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid (THC) at a level greater than 30 ug/L. The results of the drug test on the urine sample taken in Brisbane on 13 February did not detect the presence of any THC or Benzodiazepines above the relevant cut-off levels.

[22] The applicant remained suspended from duty on pay while Qantas conducted an investigation into the incident involving the applicant’s conduct in the taxi on the evening/ morning of 8/9 February as the flight crew returned to their hotel in Santiago. The applicant was subsequently advised that the investigation had resulted in certain findings being made which amounted to the applicant having committed serious misconduct involving the sexual harassment of S/O x. The applicant was invited to show cause as to why disciplinary action should not be taken against him in view of the findings that arose from the investigation.

[23] Qantas gave consideration to the applicant’s written and verbal responses provided throughout the investigation and show cause phases of the process for dealing with the incident of the evening/morning of 8/9 February in Santiago. Qantas provided the applicant with a letter dated 7 May 2014, which advised that it had decided to terminate the applicant’s employment on the basis of the serious misconduct found to have occurred in respect to the incident of the evening/morning of 8/9 February in Santiago. The applicant was paid five weeks wages in lieu of notice.

The Case for the Applicant

[24] Ms Nomchong, SC, who appeared for the applicant at the Hearing, made extensive verbal submissions in addition to documentary material that had been filed earlier. Ms Nomchong submitted that the determination of the matter had to be approached having regard to the established legal principles upon which a termination of employment would be held to be harsh, unjust or unreasonable. Ms Nomchong referred to various decided cases as Authorities which formed the basis for the legal principles which she submitted were appropriate.

[25] Ms Nomchong submitted that the appropriate legal principles needed to be considered in the context of the provisions of section 387 of the Act. In broad terms, according to the submissions made by Ms Nomchong, the dismissal of the applicant was harsh, unjust and unreasonable because there was no valid reason for the finding of serious misconduct made against the applicant. Further, Ms Nomchong submitted that the termination of the applicant's employment was harsh because it was a grossly disproportionate penalty for a single incident in a long and unblemished career of nearly 20 years as a Qantas pilot, and because of the personal circumstances of the applicant.

[26] In respect to the issue of there being any valid reason for dismissal, Ms Nomchong made submissions which stressed that Qantas had found the applicant guilty of serious misconduct, and serious misconduct required a deliberate intention on the part of the applicant. Ms Nomchong submitted that it was not the Commission's function to stand in the shoes of the employer, but rather to determine on the balance of probabilities, whether the conduct attributed to the applicant had been deliberate and intentional.

[27] Ms Nomchong submitted that an analysis of the evidence regarding the events that occurred at the Irish pub was central to any determination as to whether the applicant could be found to have the necessary intention in respect to the inappropriate touching of S/O x in the taxi. In this regard, it was submitted by Ms Nomchong that there was essentially two theories which were attributable to the conduct of the applicant whilst at the Irish pub.

[28] Ms Nomchong submitted that the first theory as to the applicant's activities at the Irish pub involved a number of conclusions which had been broadly adopted by Qantas. In this first theory the applicant left his colleagues and went upstairs to another bar and got himself stoned or drunk or a combination of both, during the 25 to 30 minutes that he was away from the others. In this first theory, as had been adopted by Qantas, the actions of the applicant were deliberate to the extent that he was responsible for his highly intoxicated state when he returned to his colleagues and then subsequently inappropriately touched S/O x.

[29] The second or alternative theory which was advanced by Ms Nomchong proposed that the applicant separated from his colleagues at the Irish pub when he went upstairs to look for a table and go to the toilet. On his way to the toilet the applicant ordered a beer then while he was in the toilet the drink was spiked. After he came back to the bar and consumed the spiked drink he was given food which contained Cannabinoids or THC. Ms Nomchong further submitted that if this second theory was correct, the actions of the applicant which followed was involuntary and the inappropriate touching of S/O x could not be held to have been intentional and was therefore not serious misconduct. Ms Nomchong said that in these circumstances the absence of serious misconduct meant that there was not a valid reason for the dismissal of the applicant.

[30] Ms Nomchong made further submissions which she said supported the prospect that the second theory, as opposed to the first theory, was more likely to be the correct basis upon which to attribute the activities of the applicant in that period of time that he and the other flight crew were at the Irish pub immediately before the inappropriate touching of S/O x. In support of the second theory, Ms Nomchong relied upon the soundly established unblemished work record of the applicant. According to the submissions of Ms Nomchong, it would be completely out of character and inconsistent with the exemplary work record of the applicant for him to lie about what he did when he separated from his colleagues shortly after arriving at the Irish pub.
[31] Further, Ms Nomchong submitted that the second theory was supported by what she described as the commonsense test. Ms Nomchong said that it did not make sense for the applicant to deliberately consume cannabis and/or large amounts of alcohol in the presence of Captain Hawkins who was at the time, the Acting Captain of the Qantas B747 fleet. As it was put by Ms Nomchong, it did not make sense for anyone who wanted to “go on a bender” to do so in the presence of their boss.

[32] In addition, it was submitted by Ms Nomchong that if the applicant was lying about his activities at the Irish pub and he was endeavouring to fabricate a proposition involving his drink being spiked, he could have easily supported that fabrication by falsely stating that upon checking his wallet the next day money had been missing. Instead the applicant had advised his colleagues that he calculated that he must have spent only about 6000 pesos while he was at the Irish pub. According to Ms Nomchong, further support for the second theory was also provided by factors such as; the applicant's contrition; the apology which was accepted by S/O x; the applicant's immediate cooperation with the investigation into the incident; the absence of any formal complaint by S/O x; and, the evidence that S/O Pratt could not smell marijuana when he was in the close proximity of the applicant in the taxi.

[33] Ms Nomchong urged the Commission to conclude that the second theory as she had described and advocated, correctly accounted for the applicant's activities at the Irish pub. Therefore, according to Ms Nomchong, the subsequent inappropriate touching of S/O x could not be held to have been the intentional action of the applicant as he was an innocent victim of drink spiking. Ms Nomchong said that it consequently followed that there was no valid reason for the dismissal of the applicant.

[34] As an alternative submission advanced by Ms Nomchong, it was proposed that even if the applicant voluntarily consumed a large quantity of alcohol and a large quantity of cannabis, notwithstanding those activities, the dismissal would be too harsh a penalty in the circumstances. In support of this submission, the personal circumstances of the applicant, including his long and unblemished career with Qantas, were factors which were said to provide a basis to conclude that the decision should be held to have been harsh.

[35] Ms Nomchong summarised her submissions by concluding that the dismissal of the applicant was unfair because the reason given for dismissal was not a valid reason. She submitted that the absence of valid reason arose from a conclusion that should be drawn from the evidence which she said strongly supported the proposition that the applicant had his drink spiked at the Irish pub.

[36] Further, Ms Nomchong submitted that the personal circumstances of the applicant including in particular, his long and exemplary work record should render a dismissal made in respect of one incident, to be harsh. Ms Nomchong urged that the Commission find in favour of the applicant and as there was no impediment to reinstatement, appropriate Orders for reinstatement, continuity of service and restoration of lost pay should be provided.

The Case for the Employer

[37] The employer was represented by Mr Warren, Barrister, who submitted that the dismissal of the applicant was not unfair. Mr Warren made verbal submissions which relied upon and amplified the written material which had been provided.

[38] Mr Warren commenced his submissions by stating that the matter involved important factual issues which were not in contest. In particular Mr Warren stated that what had happened in the taxi was not in dispute. Further, Mr Warren stated that by any measure what had occurred in the taxi was sexual harassment of a gross kind. Mr Warren submitted that the crucial issue to be determined was whether the applicant voluntarily or knowingly committed the sexual harassment or did he voluntarily put himself into such a state that he did not know what he was doing.

[39] Mr Warren made submissions which analysed the evidence of the activities of the applicant whilst he was at the Irish pub. Mr Warren said that further medical evidence including the drug test results, when considered together with the evidence of the applicant's activities at the Irish pub, did not support the proposition that the applicant had been a victim of drink spiking.

[40] Mr Warren submitted that the evidence confirmed that at the time of the sexual harassment incident the applicant had consumed a significant amount of alcohol, and he also had a significant level of cannabis (THC) in his system. Further, Mr Warren said it was important that subsequent testing had revealed no elevated level of benzodiazepines. According to the submissions made by Mr Warren, there was no medical evidence to support the applicant’s proposition of drink spiking, but instead, there was a strong foundation for the proposition that the applicant had deliberately smoked cannabis during the 25 to 30 minute period when he had separated from his colleagues.

[41] Mr Warren submitted that there was no dispute that when the applicant returned to his colleagues at the Irish pub he had become highly intoxicated within a fairly short period of time. Mr Warren said there was no evidence to support the proposition that the dramatic change in the applicant's level of intoxication should be attributed to drink spiking but instead there was a simple and logical explanation which involved the applicant smoking cannabis. Mr Warren submitted that on the basis of an objective analysis and consideration of all the evidence, the conclusion to be reached supported cannabis and not drink spiking as the reason for the applicant’s quick and dramatic intoxication at the Irish pub.

[42] According to the submissions made by Mr Warren the applicant was responsible for consuming significant amounts of alcohol followed by cannabis at the Irish pub. Therefore it was submitted by Mr Warren that the applicant had clearly conducted himself in a manner which meant that he was responsible for the level of intoxication and that this conduct and any subsequent conduct such as the sexual harassment, amounted to conduct which undermined the employment contract and operated to provide sound, defensible and valid reason for dismissal.

[43] Mr Warren made further submissions which rejected that any reliance should be placed upon the absence of a complaint being made by S/O x and also that she, rather than the applicant, had first raised the suggestion that the applicant’s conduct may have been caused by drink spiking. In this regard Mr Warren said it was important to note that neither the applicant, S/O x or Captain Hawkins took any steps to pursue the possibility of the drink spiking suggestion. Mr Warren made submissions which included strident criticisms that the applicant took no steps to return to the Irish pub to make inquiries about any reports of drink spiking nor did he talk to the police or any other local authorities.

[44] It was further submitted by Mr Warren that no criticism could be made of the procedure that the employer had adopted when it investigated the incident which had been raised by Captain Hawkins. Mr Warren said that the employer had carefully investigated all of the circumstances surrounding the incident in Santiago and it had provided the applicant with ample opportunity to put his position. Following this process, the employer ultimately concluded that the applicant was responsible for the misconduct which was appropriately characterised as being serious misconduct. Further, Mr Warren submitted that the employer had considered the good employment history of the applicant and had balanced all of those relevant factors, particularly including the operational requirements inherent with the position of an international pilot.

[45] Mr Warren summarised his submissions by stating that the applicant had undeniably committed an act of serious misconduct in the form of the sexual harassment of S/O x. Further, Mr Warren said that the applicant was either directly or knowingly responsible for that serious misconduct or he was responsible for putting himself into a state of intoxication such that he committed an act of serious misconduct in an unknowing state for which he was responsible. In any event, Mr Warren submitted that there was valid reason for the dismissal of the applicant and there was no procedural or other deficiency in the manner in which the employer determined to dismiss the applicant. Mr Warren urged the Commission to find that the dismissal of the applicant was not unfair and therefore the application should be dismissed.

Consideration

[46] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

[47] In this instance, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

387 (a) - Valid reason for the dismissal related to capacity or conduct

[48] The reason for dismissal in this instance has involved the deplorable incident that occurred in the taxi in Santiago. What happened to S/O x in the taxi should not have occurred. The applicant has exhibited genuine remorse and contrition for his actions. The applicant has paid a very high price for his misconduct. The loss of long-standing, unblemished employment as an international pilot particularly in the circumstances revealed in this instance, amounts to a catastrophic fall from grace. In this context, the Commission must very carefully approach the determination of the contested issue as to whether valid reason for dismissal can be substantiated.

[49] There was no contest about the actual actions of the applicant in the taxi during the journey from the Irish pub to the Hotel in Santiago. The contest which has emerged is directed at whether the applicant's actions can be properly held to represent serious misconduct as was found by the employer. Essentially, the challenge that has been made is that the applicant's actions would not represent serious misconduct if, through no fault of his own, he was in a state of excessive intoxication and did not have the requisite consciousness or intention to commit the actions. Without the requisite intention (or mens rea) such actions would not represent serious misconduct and therefore not provide a valid reason for dismissal.

[50] In order to determine the contest as to valid reason for dismissal a number of particular issues need to be addressed in logical sequence and resolved accordingly. The first issue that needs to be addressed is the question of whether the applicant had such a level of intoxication that he was, in all likelihood, dispossessed of consciousness and therefore not acting deliberately when he committed the sexual harassment of S/O x.

Intentional Molestation or Intoxicated Unconsciousness

[51] There were numerous aspects of the evidence which provided support for a finding that, in all likelihood, the level of intoxication of the applicant at the time that he molested S/O x, was of such magnitude that the applicant had lost a significant level of self-control and was acting without conscious intention.

[52] For example, the unchallenged evidence provided by S/O Pratt in his witness report document of 12 February 2014 1 described that upon rejoining the other flight crew at the Irish pub, the applicant's behaviour was “vastly different” and “it was really obvious that something wasn't right, Steve was completely incoherent, and was unable to maintain his focus on the group.” Further, S/O Pratt stated that he observed the applicant trying “to touch the bottom of one of the women, who seemed to be trying to find a way to politely ask him to leave.”2

[53] Further, there was evidence to establish that the behaviour of the applicant after he rejoined the other flight crew at the Irish pub was completely out of character and dramatically different to the state of mild alcoholic intoxication that was apparent before the applicant went missing for 25 to 30 minutes. There is also the evidence in the form of a photograph 3 taken by Captain Hawkins showing the applicant passed out in the hallway of his hotel room and the evidence of the incoherent communications4 that the applicant made with his wife a few hours later.

[54] Against all of this evidence, there is little, if any, material to support the proposition that the applicant was consciously making sexual advances towards S/O x. Consequently, I am satisfied in finding that at the time that the applicant sexually harassed S/O x, he was highly intoxicated to such an extent that he was dispossessed of an ability to act with conscious intention.

Innocent Victim of Drink Spiking or Responsible for Intoxication

[55] The next issue to be examined has involved the question of whether the applicant can be held to have been reasonably responsible for the highly elevated level of intoxication that gave rise to his dissociated state. This issue represents what may be described as the fulcrum of this matter. If there was endorsement, on the balance of probabilities, for the applicant's proposition that his level of intoxication was substantially caused by drink spiking, then it would follow that he could not be held responsible for the sexual harassment of S/O x and the basis for dismissal, serious misconduct, would not be valid.

[56] Although the applicant's case also involved an alternative or supplementary submission which contended that even if the Commission found that the applicant was responsible for the elevated level of intoxication which led to his behaviour, the penalty of dismissal was too harsh because of the personal circumstances of the applicant including, in particular, his long-standing, unblemished employment record. I am not at all attracted by this alternative proposition as I find it counterintuitive to contemplate providing an unfair dismissal remedy for a person who would have, on its most generous representation, provided evidence that was incomplete and misleading.

[57] As a consequence, there has been vital significance attached to conclusions that would be drawn from a careful and detailed examination of the evidence of the activities of the applicant in the time between when the flight crew arrived at the Irish pub, and when the applicant returned to the group after going missing for some 25 to 30 minutes. The evidence of these activities in this period of time has been central to a determination of whether the applicant was an innocent victim of drink spiking, or whether it was more likely that he consciously smoked or otherwise imbibed cannabis or a cannabis derivative.

[58] The evidence of the applicant has, from the outset, included the difficulties associated with his loss of memory which was said to commence from about the time that he separated from the other flight crew. Further, the absence of direct witness evidence from Captain Hawkins and S/O x has not assisted with the resolution of particular factual issues relating to the apparent activities of the applicant shortly after the flight crew arrived at the Irish pub. The evidence provided by S/O Pratt was consistent, logical, objective, unembellished and believable.

[59] The reason for the applicant separating from his colleagues shortly after arriving at the Irish pub is something that I have found to be perplexing. Why would you separate from your colleagues after arriving at the Irish pub? The applicant had been happily dining and socialising with his fellow pilots and they had gone to the Irish pub at the suggestion of both S/O x and himself.

A Vacant Table?

[60] The applicant's witness statement introduced two reasons for the applicant leaving his colleagues and walking upstairs to an adjoining bar. The applicant stated that there were no empty tables when they arrived at the Irish pub and he went to look upstairs for a vacant table and to also use the toilet. These propositions, on their face, seem to make sense and provide reason for the applicant separating from the others. However, they do not explain why the applicant would, while looking for a table for the group, purchase a drink for himself at the bar.

[61] This conundrum about why the applicant would separate from his colleagues is made more curious when one examines the evidence provided by others in the group about the occurrences upon and shortly after their arrival at the Irish pub.

[62] Relevantly, S/O Pratt provided the following evidence in his witness statement: “Soon after we got there, I observed F/O Gregory talking to somebody. He seemed to know him, but he did not introduce the man to us.... Capt Hawkins, S/O [x] and I went to look for a table and left F/O Gregory talking to the man. We found a table next to a wall inside downstairs and sat down.” 5

[63] This evidence is consistent with a documentary report made by S/O x and dated 11 February 2014, wherein she stated: “On arrival there we took a seat at the table at an Irish bar. The evening was very social and enjoyable and relaxed. When we sat down we noticed that the FO was not with us. After a few minutes we thought he might not have seen where we were so I got up to look for him. I couldn't find him and returned to the group. He rejoined the group I would estimate somewhere from 20-30 minutes later.” 6

[64] The more contemporaneous documentary accounts that were made by the two S/Os about finding a table at the Irish pub are consistent with the contemporaneous documentary report of Captain Hawkins 7 and conflict with the applicant's witness statement and his more contemporaneous documentary outline of events provided to the employer as an annexure to a letter dated 26 February 2014. In this outline of events document the applicant stated: “We could not find a spare table so I offered to go upstairs to the open air bar to look for a table. I left the other three to go upstairs, use the toilet and see if there were any tables.”8

[65] The corollary of a careful consideration of this particular point of detail of the evidence has established that on balance and weight, the applicant did not separate from the others to look for a vacant table. The other three flight crew moved away from the applicant while he was talking to another unknown person and they found a vacant table near the wall downstairs and sat down. The evidence does not support the proposition that the applicant advised the other flight crew that he would look for a vacant table or go to the toilet. I am unable to accept that the applicant separated from the other flight crew for the purpose of finding a vacant table.

The Toilet, a Conversation with a Local, and a Drink Alone

[66] The applicant also provided evidence that he bought a drink from the bar upstairs. The proposition which has subsequently emerged is that the applicant may have separated from the group to go to the toilet. However, there is no evidence from any of the other flight crew that the applicant gave any indication to any of them as to the reason for him separating from the group. He simply did not follow them to the table where they were seated after he finished his conversation with the unknown person. Further, if the applicant was simply going to the toilet, perhaps without advising his colleagues, why would he purchase a drink for himself which he then apparently left unattended while he went on to the toilet?

[67] The applicant provided very guarded responses to questions about the unknown person that he spoke to shortly after arriving at the Irish pub. The applicant said that he could recall events up to the point in time when he went upstairs and that the conversation that he had with the unknown person was unconnected with his movement upstairs. There appeared to be a suggestion from the applicant that he may have had more than one conversation with different people at or shortly after they arrived at the Irish pub. The applicant provided the following evidence when cross-examined about his activities at this point in time:

“PN385

It's suggested, what's more, that you went somewhere with this person.  You left your colleagues and you went upstairs with this person.  You don't recall?---No, it's not that I don't recall.  I recall things up until that point and I didn't go upstairs with anybody.  I went upstairs to go to the toilet and to look for a table, and I didn't go with anybody.

PN386

Are you maintaining also that you didn't speak to someone you knew?---I spoke to somebody, not that I knew, and I have a penchant for doing that.  That's part of my personality.

PN387

So you remember speaking to someone?---Yes, I remember that I spoke to somebody on the way into the place, as we walked past some tables.  Who I spoke to, I couldn't tell you, and when we came out the other side - I talk to people all the time.

PN388

You see, Mr Pratt certainly got the impression that you knew this person and that you were speaking with this person separate from them.  You don't recall that?---I recall talking to another person there; another guy there.”

[68] The applicant’s evidence clearly sought to downplay the conversation that he had with the unknown person or persons and it contrasted significantly with the evidence provided by S/O Pratt and Captain Hawkins. A careful consideration of all of the evidence regarding the applicant’s conversation with the unknown person or persons has established that there was more than a fleeting, casual exchange with a passerby or two. On any objective assessment the applicant engaged in a significant conversation with this unknown person (or persons) and this occurred at a point in time that the applicant says was before his memory loss. However the applicant did not offer any evidence about the substance of the conversation or conversations that he had with any unidentified person or persons.

[69] Regrettably for the applicant I have concluded that I am unable to accept as an inference from his evidence that his conversation or conversations with unidentified persons shortly after arrival at the Irish pub were matters of insignificance. Almost directly after this conversation the applicant separated from the other flight crew and he went upstairs. I have earlier rejected that the applicant went upstairs to look for a vacant table as he suggested. Further, it is plainly implausible that on the way to the toilet, having left his colleagues downstairs with whom he had been drinking all night, the applicant decided to purchase a drink from himself and leave that drink on the bar while he then went into the toilet. There is also an amplified implausibility attached to the proposition that the drink was spiked with cannabis or that the drink was spiked with GHB and then the applicant ate food which contained THC.

[70] As mentioned earlier in this Decision, S/O Pratt was a witness who provided truthful and believable evidence. He impressed me as a person of integrity who would not wish to do any disservice to any of his work colleagues, including the applicant. He was called to give evidence on behalf of the applicant and he was clearly intent on giving a complete and truthful account of the events which were relevant to the dismissal of the applicant.

[71] Consequently, I have readily accepted the evidence of S/O Pratt that he did not smell any marijuana when in close proximity to the applicant during the taxi trip back to the hotel. However I have discounted this evidence as being of any significant assistance to the applicant’s case because of the following factors.

[72] There was about an hour which elapsed between when the applicant separated from the rest of the flight crew and the taxi ride back to the hotel. During this period of time the applicant consumed at least two more alcoholic drinks and perhaps other substances. This consumption would have been likely to have the effect of masking any residual marijuana odour. Further, and in combination, there would have been a plethora of odours that could have reasonably been expected to pervade the night air of the Bellavista district and a taxi transiting through that area. In addition, the inhalation of THC can be facilitated by various methods including via water filtered pipes or “bongs” or by way of smoking of hashish. These methods of inhalation can reduce the prospect of there being a residual marijuana-like odour.

[73] I have made a careful and thorough assessment of all of the evidence which both supports and detracts from the competing propositions as to whether the applicant was or was not an innocent victim of drink spiking. The conclusion that I am compelled to make is that, on the balance of probabilities, having regard for the elevated level of satisfaction required because of the serious nature of the conduct under examination, the applicant was not an innocent victim of drink spiking. The significantly more plausible proposition which is most strongly supported by the totality of the evidence is that the applicant separated from his colleagues as a deliberate act in the pursuit of imbibing cannabis, or a cannabis derivative, or some other substance. In all likelihood, this action of the applicant occurred because of an invitation or suggestion made by the person or persons with whom he had engaged in conversation shortly after arriving at the Irish pub.

[74] It must be recognised that the applicant would not have intended to have become as intoxicated as he did. There was considerable logic and reason inherent in the commonsense argument as was advanced by Ms Nomchong. However, the applicant, as a novice or perhaps experimental cannabis or other substance user, may not have even known what he was given to inhale or he may have dramatically underestimated the strength of the substance. Whatever may have been the precise reason for his elevated level of intoxication, the applicant took a decision which had clear risk attached to it. Unfortunately for the applicant that risk was realised and therefore personal culpability for his subsequent sexual harassment misconduct must follow.

[75] Consequently, the applicant was dismissed for valid reason. In view of the findings that I have made regarding particular aspects of the evidence provided by the applicant there may be only limited prospect that some other factor may militate against the valid reason. Nevertheless, a dismissal for valid reason can be unfair because of other factors and therefore I am required to address all of the elements contained in s.387 of the Act.

387 (b) - Notification of reason for dismissal

[76] The employer provided written notification of the reason for the applicant's dismissal.

387 (c) - Opportunity to respond to any reason related to capacity or conduct

[77] The employer conducted an extensive investigation into the events that involved the applicant and the other flight crew during their stopover in Santiago on 8 to 10 February 2014. The applicant was given ample opportunity to respond in respect of both the factual matters which gave rise to the reason for dismissal, and also to the appropriateness of any subsequent disciplinary action.

387 (d) - Unreasonable refusal to allow a support person to assist

[78] The applicant was permitted to have a support person present during interviews that were conducted as part of the employer’s investigation.

387 (e) - Warning about unsatisfactory performance

[79] This factor has no relevance in this instance.

387 (f) - Size of enterprise likely to impact on procedures

[80] This factor has no relevance in this instance.

387 (g) - Absence of management specialists or expertise likely to impact on procedures

[81] This factor has no relevance in this instance.

387 (h) - Other relevant matters

[82] Other matters, such as the personal circumstances of the applicant, including his long unblemished work record, his genuine remorse and contrition, and the financial and career impacts suffered as a result of the dismissal have all been considered.

[83] In particular, I have great sympathy for a person in circumstances where their unblemished long-standing career has been decimated as a result of one bad decision. If I was personally assessing the disciplinary action in this instance I would have probably avoided dismissal. However, it is not the role of the Commission to stand in the shoes of the employer. Further, I understand and accept that because of the nature of the applicant’s occupation and in particular, the requirement for the employer to have confidence in the decision-making capabilities of its pilots that it determined that dismissal of the applicant was appropriate.

[84] I have been troubled by the absence of Captain Hawkins as a witness. Ms Nomchong invited the Commission to draw adverse inferences as established by the principle recognised in the case of Jones v Dunkel,  9 from the absence of witness evidence from Captain Hawkins and S/O x and others. There was evidence which provided adequate explanation for the absence of S/O x as a witness. There was no acceptable explanation for the absence of Captain Hawkins as a witness. It is also relevant to consider that despite being legally represented the applicant did not seek to summons Captain Hawkins to give evidence.

[85] I believe that it is open and reasonable to infer that in certain respects, the witness evidence of Captain Hawkins would not have assisted the employer’s case. I have inferred that if he had given evidence as a witness, Captain Hawkins would have confirmed, in particular, that the excessive level of intoxication of the applicant on the night in question meant that he was dispossessed of his faculties and not conscious of his behaviour. Further, I have inferred that Captain Hawkins would have confirmed the genuine remorse and contrition shown by the applicant on the day and days following the incident. However, these are issues of fact that I have found in favour of the applicant and which do not go directly to the more significant evidence surrounding the activities of the applicant at the Irish pub in the period of time immediately before he went missing.

[86] There would have been significant benefit obtained from evidence provided by Captain Hawkins about his consideration on the following day, 9 February, as to the drink spiking suggestion and why there was apparently no contemplation given to at least initiate some inquiry with management of the Irish pub, and/or the police, and/or some other local authority. I am unable to make firm inferences as to what the evidence of Captain Hawkins may have been about these issues. However, it has become clear that Captain Hawkins made the correct decision to stand the applicant down, for if he had not done so the applicant would have been operating the B747 under the influence of THC (cannabis) at a level of more than twice the Australian cut-off reporting figure.

[87] Consequently, although adverse inferences have been drawn about the absence of witness evidence from Captain Hawkins, those inferences have not disturbed the critical factual findings which underpin the serious misconduct of the applicant. Other aspects of the potential evidence of Captain Hawkins cannot be deduced and I remain particularly perplexed by his absence as a witness.

[88] The flight crew and the Captain of that crew in particular occupy positions which have extremely high levels of responsibility. Although there can be no excuse for the applicant’s decision-making which led to his ultimate culpability for the serious misconduct for which he was dismissed, it should be recognised that the applicant went to the Irish pub along with the entire flight crew. Captain Hawkins was the leader of that crew and therefore, in my view, he was duty bound to give evidence as a witness in these proceedings. Unless his absence was at the insistence of Qantas and not his personal choice, the failure to give evidence as a witness can be construed to represent something of an abdication of his responsibilities as the Captain of the crew.

[89] Importantly for Qantas, it should take steps to ensure that the standards that have been applied to the applicant in this instance are reflective of a consistently applied level of accountability required of all of its pilots, especially Captains. As an element of sound management practice and good leadership, it would seem that whilst on any stopover the socialising of the flight crew together should be encouraged. However, whether such encouragement for socialising, even on a two night stop over, should extend to what might be described as “kicking on” after dinner to the nightclubs and bars precinct of a city might be a matter worthy of review.

Conclusion

[90] In this instance the applicant was dismissed for serious misconduct which involved the sexual harassment of a female colleague. The particular actions of the applicant involving the molestation of S/O x were not disputed. However, it was asserted that these actions did not constitute serious misconduct because the applicant was an innocent victim of drink spiking and therefore he could not be held responsible for his actions.

[91] Upon hearing and careful examination of the evidence I have concluded that the actions of the applicant were not consciously intended. The applicant did not know what he was doing when he molested S/O x, he was not in control of his faculties at that time. However, from my analysis of the entire evidence which was presented I have concluded that the applicant made a significant error of judgement earlier in the evening which has established his personal culpability for the sexual harassment.

[92] The level of personal culpability for the consequences which have regrettably followed from the applicant’s defective decision making are properly assessable in an occupational context. The standards for personal responsibility are very high in the case of an occupation such as a commercial pilot. Consequently, the substantive reason for the applicant's dismissal has been held to be valid.

[93] Other matters relating to the personal circumstances of the applicant and the loss of long-standing, unblemished employment are tragic. However, any personal sympathy does not negate or diminish the seriousness with which the employer was entitled to treat the misconduct of the applicant. In such circumstances it would be wrong for the Commission to disturb the decision made by the employer to dismiss the applicant.

[94] The dismissal of the applicant was not harsh, unjust or unreasonable. Consequently, the application for unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Ms K Nomchong of Senior Counsel, together with Mr D Taylor of Turner Freeman appeared for the applicant;

Mr R Warren of Counsel, together with Ms M Ma of Ashurst Australia appeared for the employer.

Hearing details:

2014.

Sydney:

December, 4 and 5.

2015.

Sydney:

January, 22.

 1   Exhibit 13, page 45.

 2   Exhibit 7, paragraph 15.

 3   Exhibit 11.

 4   See Transcript @ PN731

 5   Exhibit 7, paragraphs 12 and 13.

 6   Exhibit 13, page 43.

 7   Exhibit 13, page 46.

 8   Exhibit 13, page 70.

 9   Jones v Dunkel (1959) 101 CLR 298.

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