Slip time slip up: a fair dismissal11 September 2018 | Employer's Liability
The Fair Work Commission confirms that employers of workers in safety critical industries such as the airline industry may dismiss workers whose conduct out of working hours impairs the worker's ability to safely perform their working duties.
- Whether the worker’s dismissal for misconduct out of hours was unfair.
The worker, Mr Orso, was employed by QF Cabin Crew Australia (the Company), a subsidiary of Qantas Airways, as a flight attendant from 22 February 2016 until he was dismissed for misconduct on 2 November 2017.
On 22 July 2017 Mr Orso attended a roof top bar in New York during “slip time” during a seven day flight pattern for the sectors Brisbane- Los Angeles- New York- Los Angeles- Brisbane. “Slip time” is the layover period during the flight pattern when the crew have time off.
At the bar, Mr Orso consumed an excessive amount of alcohol and was conveyed by ambulance to hospital and then discharged the following morning at 6:00am. Mr Orso was due to operate a flight at 5:10pm that afternoon however he advised his manager that he was feeling unwell and could not attend. He subsequently flew home to Australia as a passenger on 27 July 2017. He was ultimately dismissed for his conduct effective from 2 November 2017.
In deciding that the dismissal was not unfair in all the circumstances of the case, the Fair Work Commission considered two previous decisions involving the Company and the conduct of flight attendants during slip time.
Deputy President Dean cited Roach v Qantas Airways Limited and noted that it had been held in that case that “from the point when a flight attendant signs on for a pattern of duty, including slip time, he or she is in a safety critical role, for which Qantas is subject to regulation by the Civil Aviation Safety Authority and the availability and fitness for duty of flight crew through the full pattern is a legitimate concern for the airline”.
He noted that the particular circumstances in which flight attendants have slip time, gives the Company a legitimate interest in the off duty conduct of its flight crew far greater than the usual legitimate interest an employer might have in the off duty conduct of an employee.
The Court accepted evidence from expert witnesses that Mr Orso had consumed between 14 and 18 standard drinks in less than two hours during slip time and concluded that:
“After a careful consideration of all the mitigating factors put forward by Mr Orso and in the circumstances of this matter, and for the reasons set out earlier, I am unable to conclude that his dismissal by [the Company] was unfair and I do not consider his dismissal was disproportionate to the gravity of the misconduct… Having considered each of the matters specified in Section 387 of the Act I’m satisfied that the dismissal of Mr Orso was for a valid reason and was not otherwise harsh, unjust or unreasonable.”
Accordingly, Mr Orso’s application for an unfair dismissal remedy was dismissed.
Implications for you
Employers in safety critical industries have a legitimate interest in the off duty conduct of their employees that may impact the employee’s work. Subject to all the circumstances of the case, employers of workers in safety critical industries may have a right to dismiss employees whose out of hours conduct impairs the safe performance of their work duties.