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Full Bench upholds Qantas flight attendant’s ‘big night out in New York’ dismissal

24th March, 2019

A Full Bench of the Fair Work Commission (FWC) has determined the appeal brought by dismissed Qantas flight attendant, Luke Urso, upholding the finding at first instance that the airline had reasonable cause for the dismissal.

The facts are set out in a previous post previous post. In essence Qantas dismissed Mr Urso for serious misconduct in that he had breached Qantas policies by consuming excessive alcohol at a rooftop bar while ‘on slip’ in New York. He was then unable to perform duties on a flight back to Los Angeles the following day.

In the appeal, Mr Urso argued that he had only consumed a maximum of five drinks at the bar in New York and that there was an innocent explanation for his becoming intoxicated: the bar engaged in a practice of ‘free pouring’. The consequences that followed weren’t intended by him, and couldn’t constitute misconduct justifying dismissal.

However the Full Bench (see: Urso v QF Cabin Crew Australia Pty Ltd t/a QCCA [2019] FWCFB 1322) found that the evidence simply didn’t support the proposition that Mr Urso only consumed five drinks. Further, he could not have a reliable recollection of what occurred and precisely how many drinks he consumed.

The Full Bench was dismissive of the proposition that Mr Urso reached such a high state of intoxication as a result of ‘free pouring’ (described as a ‘hitherto unknown practice’). Rather the evidence suggested ‘that he had significantly more than five drinks, in which case “free pouring” loses whatever capacity it had to exonerate him’.

Finally, the Full Bench rejected Mr Urso’s argument that some element of intention was required to support a misconduct-based dismissal. This is probably the most significant part of the decision. The Full Bench stated as follows:

[30] It may be accepted that Mr Urso did not positively intend to become intoxicated to the degree that he could not attend for work the following day when he went to the bar in New York on 22 July 2017. However we do not accept that intention is a necessary element of misconduct which might constitute a valid reason for dismissal for the purpose of s 387(a) [of the Fair Work Act]. Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement. In this case, Mr Urso’s responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree which ensured he would be able to attend for work and safely perform his duties the following afternoon. That necessarily required close and continuing attention to the amount of alcohol he was consuming and its effect upon him, since it is notorious that alcohol will operate to progressively diminish personal responsibility and impair a person’s sense of judgment. It defies common sense that a person exercising the requisite degree of restraint could put themselves in the position of consuming 14 standard drinks and then passing out in a period of well under two hours. That Mr Urso got himself in that condition was, we consider, the result of recklessness and misjudgement on his part.

His subsequent failure to attend for the scheduled return flight the next day was serious enough to amount to a valid reason for dismissal; and various mitigating factors (e.g. his passion for the job) might have been considered further at first instance had he acknowledged responsibility for the events leading to dismissal.

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