Dismissal Upheld for Conduct Outside Workplace

In July 2018, a former Qantas cabin crew member brought a matter before the Fair Work Commission (FWC) alleging unfair dismissal. He had been terminated for conduct which occurred outside the workplace, yet the Commission still held that the dismissal was fair. Whilst at first glance it may appear somewhat unfair to dismiss someone for their conduct outside the workplace, circumstances do arise where such action is not only permitted, but in fact necessary.

The facts

  • Mr Urso was employed as a member of Qantas cabin Crew, operating on a 7-day flight service (pattern). Over these 7 days he was to fly from Brisbane-Los Angeles-New York-Los Angles-Brisbane.
  • When he arrived in New York he went to a rooftop bar with a colleague. Both were off duty and not working for or representing Qantas in any official capacity at that time.
  • Mr Urso consumed an excessive amount of alcohol, was found passed out in the bathroom and taken to hospital where he registered a blood alcohol reading of 0.205.
  • Mr Urso was still too sick to operate a flight the next day, instead returning to Brisbane via L.A as a passenger.
  • He received a letter stating that there had been allegations of serious misconduct, and that he would be stood down pending investigation.
  • He was ultimately terminated for his conduct, as Qantas argued that such behaviour constituted a breach of their policies.

How can someone be terminated for conduct that took place outside their normal working hours?

What the Commission had to consider was whether this case satisfied the requirements for an unfair dismissal as defined in the legislation. Section 385 of the Fair Work Act 2009 states (among other elements) that a dismissal is unfair if it is “…harsh, unjust or unreasonable”. Section 387 then sets out six elements that must be met to establish that a dismissal was harsh, the first of these relates to inappropriate conduct.

Failing to adhere to workplace policies, whilst not legally binding, can be a cause for termination provided the policies themselves are themselves reasonable.  In the case of Mr Urso, the relevant Qantas policies required that he:

  • ensure that he was adequately rested whilst on slip and able to perform on his next operational duty; and
  • be ready, willing and able to perform his next operational duty following a period on slip; and
  • avoid engaging in any activity that manifestly increased the risk of illness, injury or other reason that would prevent him from performing his next operational duty.

What the FWC found

The Commission found that because of the nature of the employment policy, as well as the established case law regarding employee’s code of conduct outside scheduled working hours, Mr Urso could still be terminated for his conduct for the following reasons:

  1. The circumstances of being on a “pattern” meant that employees still had to adhere to relevant Qantas policies regarding professional conduct even while not working.
  2. Mr Urso’s conduct, despite taking place outside of workplace hours was such that it impacted his ability to work to the required standard. Because of the short period of time between flights, the ill effects of excessive consumption of alcohol would be likely to carry over into his scheduled working hours
  3. The Commission found that the investigation was fair and followed the relevant procedures. These included a description of the severity of conduct, a chance for Mr Urso to respond to the allegations, and the opportunity to have a support person present.
  4. Termination was not an overly severe reaction to Mr Urso’s conduct.

For employers

Employers should ensure that the expectations regarding consumption of alcohol and drugs are made clear to employees. Whilst employers do not have a right to mandate what an employee does outside of working hours, it is a reasonable expectation that employees not engage in any conduct such as drug or alcohol use that is likely to impact their work performance.

If this does occur and claims of misconduct or poor performance are made, employers should consider how mild or severe the action or performance was when considering punishment. The conduct should be measured against the organisation’s drug and alcohol policy to ensure that any investigation is carried out in accordance with established company standards.

We can help

If your organisation requires advice on potential misconduct or poor performance, Employer Services offers a range of relevant templates and fact sheets, as well free phone support for our subscribers.  If you need help with a dismissal matter, contact us now.

Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436