| [2018] FWCFB 6370 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Mr Luke Urso
v
QF Cabin Crew Australia Pty Limited T/A QCCA
(C2018/4576)
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 22 OCTOBER 2018 |
Appeal against decision [2018] FWC 4436 of Deputy President Dean at Sydney on 31 July 2018, matter number U2017/12351; arguable case of appealable error; public interest enlivened; permission to appeal granted.
[1] Mr Luke Urso has filed a notice of appeal in which he seeks permission to appeal and to appeal against a decision of Deputy President Dean issued on 31 July 2018 (the Decision). 1
[2] The Decision concerned an application made by Mr Urso for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) with respect to his former employment with QF Cabin Crew Australia Pty Limited (QCCA).
[3] The appeal application was heard on 24 September 2018, to consider whether permission to appeal should be granted. Section 400(1) of the Act is relevantly engaged. Permission was given to both parties to be legally represented pursuant to s.596(2)(a) of the Act. At the conclusion of the hearing we reserved our decision on the issue of permission to appeal, which we now provide.
[4] Mr Urso commenced employment with QCCA on 22 February 2016 on a full-time basis as an international flight attendant. Mr Urso was dismissed by QCCA on 2 November 2017 having been found by QCCA to have breached QCCA’s policies and manuals including, but not limited to, the Qantas Group Standards of Conduct Policy, the Health and Safety Policy and the Cabin Crew Administration Manual. 2
[5] The alleged breaches emanated from events which occurred in New York on the evening of 22 July 2017 and the following day 23 July 2017. On 22 July 2017, Mr Urso and another crew member visited a bar in New York arriving at around 10:00pm. At around 11:40 pm Mr Urso was found by his work colleague collapsed on the floor of the toilets in the bar. He was taken to hospital by ambulance around midnight and discharged at about 6:00am the next morning. Mr Urso said that he consumed two peach martinis and three gin and tonics during the evening. 3
[6] While in the hospital, a toxicology report was undertaken recording that Mr Urso had a blood alcohol content (BAC) of 0.205mg/dL at 2:32am. 4 Mr Urso’s hospitalisation incurred fees of approximately AUD$20,000 which was subsequently paid by QCCA.5
[7] Mr Urso was due to work on a flight back to Los Angeles at 5:10pm on 23 July 2017. 6 He advised his manager that he was unwell and did not attend for duty. He eventually flew to Los Angeles as a passenger on 24 July 2017 and returned to Australia on 27 July 2017.7 Mr Urso undertook a number of medical tests and was cleared to return to work on 14 August 2017.8 On 15 August he was stood down with pay while QCCA conducted an investigation into his failure to attend for duty on 23 July 2017.9
[8] On 5 September 2017, a letter detailing various allegations was sent by QCCA to Mr Urso 10, in summary the allegations were that he:
• consumed an excessive amount of alcohol at a New York City bar on the evening of 22 July 2017;
• was found vomiting in the lavatory basin, collapsing on the floor and/or becoming unresponsive;
• had to be physically removed from the bar by a fellow crew member;
• was transported via ambulance to hospital where he was admitted due to alcohol intoxication, vomiting and/or an altered mental status due to excessive drinking;
• returned a blood alcohol reading 0.187 11; and
• failed to work on 23 July 2017 in his safety sensitive role as a flight attendant.
[9] Mr Urso provided a response to the allegations. 12 However, the allegations were found to be substantiated13 and he was then asked to provide a response as to why he should not be dismissed from his employment.
[10] Mr Urso responded by stating that he had learnt ‘hard lessons’ and had made immediate changes within his own personal life. 14 Mr Urso said he was willing to be placed on a drug and alcohol management plan and would refrain from alcohol consumption whilst on duty slips at overseas ports for the next 12 months. Mr Urso asked that he remain employed with QCCA.15
[11] Having taken into consideration Mr Urso’s response, QCCA determined that his employment should be terminated with 4 weeks’ pay in lieu of notice, stating that it had formed the view that he had not been honest throughout the investigation in maintaining that his drinks were spiked and that he had not consumed more than 5 drinks. QCCA referred to a medical opinion which stated that to record a blood alcohol concentration of 0.187% would likely require a minimum of approximately 18 standards drinks over 3 hours. Significant consideration was said to have been given to the medical information in the hospital report which suggested that his drinks were not spiked.
[12] The Deputy President found that Mr Urso’s claim that he could have five alcoholic drinks without compromising his ability to operate the next day was unfounded and proved to be wrong. 16 The evidence supported a finding that Mr Urso consumed an excessive amount of alcohol. Mr Urso’s undisputed blood alcohol content was a direct consequence of his voluntary alcohol consumption and led to him being unable to attend for work the next day.
[13] On balance the Deputy President was not convinced that Mr Urso was a victim of drink spiking and stated it was a speculative claim not supported by any evidence. 17 The Deputy President further held that Mr Urso was responsible for putting himself in a situation where his consumption of alcohol caused him to fail to attend for duty on 23 July 2017.18
[14] In the Deputy President’s view, the failure of Mr Urso to attend work because of his voluntary consumption of alcohol constituted a valid reason for his dismissal. 19
[15] Mr Urso’s appeal grounds are set out below:
1 The Fair Work Commission erred in holding directly, or by inference, that:
a. He was responsible for consuming around 14 standard drinks;
b. He voluntarily consumed around 14 standard drinks;
c. He voluntarily or knowingly engaged in excessive drinking or the excessive consumption of alcohol.
2 The Fair Work Commission erred in characterising the relevant conduct of Mr Urso:
a. as serious misconduct;
b. as constituting a valid reason for dismissal.
3 The Fair Work Commission erred in holding that Mr Urso’s lack of intent to engage in serious misconduct did not excuse him for the consequences of his conduct.
4 The Fair Work Commission erred in disregarding the evidence of Mr Jackson regarding the practice of ‘free-pouring’.
5 The Fair Work Commission erred in dismissing Mr Urso’s application for an unfair dismissal remedy.
Significant Errors of Fact
6 The Fair Work Commission made the following errors of fact:
a. That Mr Urso’s claim that he could consume five drinks without compromising his ability to operate was unfounded and wrong.
b. That Mr Urso did not refrain from engaging in the excessive consumption of alcohol.
c. That Mr Urso was not cautious or responsible in his alcohol consumption.
d. That it was implausible that Mr Urso did not feel intoxicated at an earlier time and adjust his alcohol intake accordingly.
e. Mr Urso’s conduct constituted a breach of the relevant policies of the Respondent.
[16] As to whether the grant of permission to appeal is in the public interest it was put that:
1. The Decision manifests an injustice and is counter-intuitive.
2. Where clear error is established, permission to appeal should be granted.
3. The decision relates to an important area of controversy, namely the right of an employer to regulate an employee’s conduct when they are not at work and to take disciplinary action, including the termination of the employee’s employment, with respect to that conduct.
4. The decision relates to a further important issue, namely the extent to which an employee is responsible for unintentional misconduct.
[17] Mr Urso stated at the permission to appeal hearing that the fundamental point and key to permission to appeal is the issue of what Mr Urso intended to do by way of consumption of alcoholic drinks, as opposed to what Mr Urso unintentionally consumed. 20
[18] Mr Urso alleged that the Deputy President failed to properly draw the distinction between what Mr Urso intended to do and the unintended consequences of what he did. 21
Consideration
[19] An appeal under s.604 of the Act is an appeal by way of rehearing and the Fair Work Commission’s (the Commission) powers on appeal are only exercisable if there is error on the part of the primary decision maker. 22 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[20] Being an appeal from a decision made under Part 3-2 of the Act, s.400 of the Act also applies. Section 400 of the Act provides:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
[21] The notice of appeal alleges that the Decision contains significant errors of fact and that the public interest is invoked.
[22] Granting permission to appeal will rarely be appropriate unless an arguable case of appealable error is demonstrated. In the absence of appealable error an appeal cannot succeed. 23 The fact that the member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.24
[23] As can be seen from the above, an appeal against an unfair dismissal decision can only proceed on the ground that it is in the public interest that permission to appeal be granted and where an error of fact is alleged it must be a significant error of fact.
[24] These proceedings are restricted to permission to appeal considerations. Mr Urso is not required to present full or developed argument about his appeal grounds. Our task is to determine whether it is in public interest that permission to appeal against the Decision should be granted, and relevantly in doing so to consider whether an arguable case of appealable error has been made out.
[25] In O’Sullivan v Farrer 25, the High Court stated (at 216):
“… the expression “in the public interest”, when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only “in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view”: Water Conservation and Irrigation Commission (N.S.W.) v. Browning, per Dixon J.
(Citations omitted, editing in original)
[26] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a stringent one”. 26 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment.27 In GlaxoSmithKline Australia Pty Ltd v Makin, a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 28
[27] It is put by Mr Urso that the public interest is enlivened as the decision manifests an injustice or is counter intuitive as Mr Urso was held responsible for consuming 14 standard drinks 29 despite the uncontested evidence that he consumed only 5 actual drinks.
[28] Mr Urso submits that the Deputy President should have made a finding as to how Mr Urso came to consume the equivalent of 14 standard drinks on the basis that there was ‘an unchallenged innocent explanation’. 30
[29] Mr Urso argues that the Decision fails to deal with a central element of the Applicant’s case by not making a finding as to how Mr Urso came to consume the equivalent of 14 standard drinks. 31
[30] The failure to consider a central element of Mr Urso’s case may provide a foundation for an arguable case of appealable error. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs 32 the Full Court of the Federal Court said:
[47] The inference that the tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where, however, there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked. 33
[31] The medical evidence was that it was not possible to calculate the exact number of standard drinks consumed, although it was likely to be 14 standard drinks. The Decision does not disclose that the Deputy President made a finding as to how Mr Urso’s BAC of 0.187, which was agreed to be equivalent to having consumed approximately 14 standard drinks, came about given the uncontroverted evidence that Mr Urso consumed 5 drinks.
[32] The Deputy President drew no conclusions on how many “standard drinks” Mr Urso consumed, other than stating that the evidence supported a finding that he consumed an excessive amount of alcohol. 34The Deputy President found that Mr Urso was unable to attend for work as a consequence of his voluntary excessive alcohol intake the previous evening.35The two reasons advanced by Mr Urso as possible explanations for the high BAC reading three hours after his last drink were dealt with by the Deputy President.
[33] The Deputy President concluded that the suggestion of drink spiking was not supported by any evidence. During the permission to appeal hearing Mr Urso recognised that drink spiking was unlikely. 36
[34] The Deputy President stated that if ‘free pouring’ 37 occurred leading to a higher alcoholic content it was implausible that Mr Urso did not feel intoxicated and adjust his intake accordingly.
[35] Hence the Deputy President did not find it necessary to determine how the consumption of 5 drinks equated to approximately 14 standard drinks, finding that Mr Urso’s claim that he could have 5 alcoholic drinks without compromising his ability to work the next day was wrong. The Deputy President concluded that it was Mr Urso who was responsible for putting himself in a situation where his voluntary alcohol consumption prevented his attendance at work the following day. 38
[36] The appeal grounds allege that the Deputy President erred in holding that Mr Urso’s lack of intent to engage in serious misconduct did not excuse him from the consequences of his conduct. The Deputy President determined that the decision in Gregory v Qantas Airways Limited 39 was authority for finding that lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which would otherwise amount to misconduct.40 We are unable to discern how the decision supports the proposition for which it is cited. In any event the decision was quashed by a Full Court of the Federal Court in Gregory v Qantas Airways Limited.41
[37] It may be that the Deputy President intended to refer to the later Full Bench decision of Gregory v Qantas Airways Limited 42(Qantas No 2). In that decision the Full Bench found where the employee was intoxicated that it was open to the Commissioner to reject the defence of drink spiking given the limited evidence to support it, as such the employee was responsible for his own actions while in a state of intoxication.43
[38] While the Deputy President dismissed the drink spiking proposition, she did not make a finding as to whether ‘free pouring’ happened, stating instead that if it occurred it was implausible that Mr Urso did not feel intoxicated and adjust his intake accordingly.
[39] The ‘free pouring’ submission was a central element of Mr Urso’s case and provides a foundation for an arguable case of appealable error if it was not addressed below. We accept that it is at least arguable that the Deputy President should have made a finding as to how Mr Urso came to consume the equivalent of 14 standard drinks on the basis that there was ‘an unchallenged innocent explanation’ and should have taken such a finding into account in assessing whether Mr Urso’s dismissal was harsh, unjust or unreasonable. This might merit attention by way of appeal.
[40] Further, because of the circumstances in Qantas No 2, where the employee’s only explanation for his excessive alcoholic intake was rejected, we are not persuaded that the decision is authority for finding that lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which would otherwise amount to misconduct. But even if Qantas No 2 stood for such a proposition, rigid application of it without regard to the circumstances of a particular case would amount to adopting a decision rule with the result that a discretion would miscarry. 44 It is to be remembered that the reason for the dismissal of the Applicant the subject of the Qantas proceedings concerned conduct which involved inappropriate touching of a female colleague during a taxi journey while the Applicant was intoxicated. There is no misconduct of that kind alleged here. It is at least arguable that appealable error is thereby disclosed.
[41] Without hearing the parties on the merits of the appeal, the appeal could not be said to have no reasonable prospects of success if fully argued. The matters identified above are at least arguable. We are thus satisfied on the limited submissions advanced that sufficient doubt exists as to whether the Deputy President failed to reach a necessary conclusion central to Mr Urso’s case and about the extent to which Mr Urso is responsible for his inability to attend for work. Consequently, we are persuaded that permission to appeal against the Decision is in the public interest.
[42] We therefore grant permission to appeal.
[43] The Full Bench will reconvene to hear the substantive appeal.
DEPUTY PRESIDENT
Appearances:
G Fredericks of Counsel and S Gorval for Mr Luke Urso.
S Woodbury Solicitor and M Azzi for QF Cabin Crew Australia Pty Limited.
Hearing details:
2018.
Melbourne and Sydney (by video):
September 24.
2 Appeal Book, p.155-157
3 Ibid, p.97 at [30]
4 Ibid, p.192
5 Ibid, p.156
6 Ibid, p.98 at [35]
7 Ibid, p.98 at [40]-[41]
8 Ibid, p.99-101 at [44]-[59]
9 Ibid, p.101 at [60]-[61]
10 Ibid, p.132-136
11 Dr Hosegood provided this figure based on CASA Regulations PN1978
12 Appeal Book, p.102 at [70]
13 Ibid, p.142-150
14 Ibid, p.152
15 Ibid
17 Ibid at [178]
18 Ibid at [183]
19 Ibid at [185]
20 Transcript at PN11, PN14
21 Transcript at PN13
22 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ
23 Wan v AIRC (2001) 116 FCR 481 at [30]
24 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28]
25 (1989) 168 CLR 210
26 (2011) 192 FCR 78 at [43]
27 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46]
28 [2010] FWAFB 5343, 197 IR 266 at [27]
29 QCCA’s medical witness accepted that the applicant may have had consumed 14 drinks due to his slim build and small BMI; see [144] of Decision.
30 Applicant’s outline of submissions regarding permission to appeal dated 18 September 2018 at [13]
31 Ibid
32 [2003] FCAFC 184; (2003) 75 ALD 630
33 Ibid at [47]
34 [2018] FWC 4436 at [176]
35 Ibid at [176]
36 Transcript at PN27
37 Where drinks are not measured in nips or poured in shot glasses
38 [2018] FWC 4436 at [176] and [183]
40 [2018] FWC 4436 at [177]
43 Ibid at [72]
44 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901
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