Slip time slip up: questions over a fair dismissal12 December 2018 | Employer's Liability
The Full Bench of the Fair Work Commission has granted leave to an employee of Qantas to appeal against a finding of the Fair Work Commission dismissing the employee's application for an unfair dismissal remedy.
Whether leave should be granted for a worker to appeal his dismissal.
In our last EPL.Files we reported on an Application for unfair dismissal remedy brought by Luke Urso against his employer QF Cabin Crew Australia Pty Limited trading as QCCA (read here). In that case the Commission accepted evidence from expert witnesses that Mr Urso had consumed between 14 and 18 standard drinks less than two hours during “slip time” and concluded that:
“After a careful consideration of all the mitigating factors put forward by Mr Urso 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 Urso was for a valid reason and was otherwise harsh, unjust or unreasonable.”
Mr Urso’s application for an unfair dismissal remedy was dismissed.
The Issues on Appeal
On 24 September 2018 an appeal application was heard to consider whether permission to appeal the decision should be granted to Mr Urso.
The Decision on Appeal
The Full Bench upheld the application for permission to appeal on the basis that it was at least arguable that an appealable error had been made at first instance, namely that it was at least arguable that Deputy President Dean should have made a finding as to how the worker came to consume the very significant quantity of alcohol on the basis there was an unchallenged innocent explanation.
The Commission held that the worker’s proposition that he became intoxicated because of a practice of “free pouring” alcohol was an essential element of his case and had not been given due consideration.
Whilst the Commission did not hear the parties on the merits of the appeal it considered that an appeal could not be said to have no reasonable prospects of success.
The Commission was satisfied on the limited submissions advanced that sufficient doubt existed as to whether the Deputy President failed to reach the necessary conclusion central to the worker’s case about the extent to which the worker was responsible for his inability to attend work.
The Full Bench granted permission to appeal and will reconvene to hear the substantive appeal in due course.
We will report on the outcome of that appeal once a decision is handed down.
Implications for you
Employers in safety critical industries have a legitimate interest in the off duty conduct of their employees that may effect 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.
The appeal decision highlights that the Fair Work Commission must consider alternatives about why a worker is responsible for his inability to attend work.