Superyacht Captain Sails into Choppy Waters in Fair Work Commission

The captain of a luxury motor yacht has lost his unfair dismissal claim, with the Fair Work Commission (FWC) finding he engaged in serious and wilful misconduct before and after the vessel collided with a channel marker.

What happened

The motor yacht, a 35m vessel manufactured by Sunseeker, was deployed on charter work in the Whitsundays when the collision occurred on 15 May 2024.  Video footage of the collision also showed a deck hand was almost crushed between the yacht and the channel marker.  At the time of the incident, there were twelve guests and seven crew members on board.  Approximately $150,000 worth of damage was caused to the vessel.

Following the collision, the charter company’s Yacht Manager travelled to Airlie Beach to investigate.  That investigation found:

  • there had been no lookout or helmsman posted in the bridge during the collision;
  • the Captain had turned off the radar prior to the collision;
  • the Captain had left the bridge helm with a guest on the bridge while the vessel was underway to take control of the port wing station;
  • the post collision emergency response procedure was not carried out completely.

The Captain was dismissed by the charter company on 31 May 2024 on the grounds that he had breached his contract and company policies.

In the FWC

The Captain told the FWC he had been a captain for 27 years and this was the first and only major incident he was involved in.  While conceding the incident was severe and extreme, he put it down to fatigue and other factors.  He argued the dismissal was unfair because he was told he was not going to dismissed and because he had explained what led up to the incident to his employer.  He said he had been distracted with guests in the bridge but that he was simply trying to comply with the employer’s request that he keep the guests happy.

The employer argued there was a valid reason for the Captain’s dismissal including that:

  • the collision could have been catastrophic, endangering the lives of crew and guests, particularly in circumstances where the Captain abandoned the bridge, while the vessel was still underway, without a helmsman and leaving a guest unsupervised in the bridge;
  • there are clear policies and procedures with respect to the safe operation of the vessel, and the steps to be taken after a collision, which the Captain either wilfully or negligently breached;
  • in addition to the company’s clear policies and procedures, the Captain was bound by the International Regulations for Preventing Collisions at Sea (referred to as “Colregs”).  The Captain’s use of a mobile phone while operating a vessel, together with leaving the bridge unattended (with a guest present) are separate breaches of the Colregs;
  • video footage shows the Captain using his mobile phone on multiple occasion on 12 May 2024, and indicates a pattern of behaviour that amounts to a flagrant disregard for safety obligations.

Deputy President Cross of the FWC was ultimately satisfied that the conduct allegedly engaged in by the Applicant as specified in the Yacht Manager’s investigation report actually occurred and constituted serious and wilful misconduct.  The Deputy President said:

It is without doubt that the collision was caused by there being no lookout/helmsman posted in the bridge during the time of navigation pre collision. The Applicant’s various excuses for that failure were nothing short of disingenuous.

While there were procedural shortcomings in the process used to dismiss the Captain, the Deputy President found that this would not have affected the outcome and that the seriousness of the misconduct outweighed any procedural faults.