In Steven Gregory v Qantas Airways Limited  FWCFB 2108, a Full Bench of the Fair Work Commission found Qantas justified in dismissing pilot Steven Gregory, after he sexually harassed a colleague while heavily intoxicated on a lay-over in Santiago, Chile.
Implications for employers
- In order to defend a decision to terminate an employee summarily, an employer must satisfy the Commission that the relevant misconduct was intentional. This may be difficult to show where there are doubts as to whether the employee may have been, through no fault of their own, in a state of excessive intoxication and did not have the requisite consciousness or intention to commit the actions (for instance, in a case of “drink spiking”).
- However, in circumstances where the evidence shows that it was the employee’s own actions which led to their degree of intoxication, excessive intoxication will not excuse the employee’s misconduct.
Steven Gregory had been an international Qantas pilot for nearly 20 years. On a night out on a lay-over in Chile, he became highly intoxicated and groped a fellow crew member in the back of a cab. Qantas suspended Gregory and requested he undergo drug testing before returning to Australia. Traces of cannabis were detected in his system and Gregory was terminated for serious misconduct, being the sexual harassment of a co-worker. Gregory commenced proceedings in the Commission for unfair dismissal.
The decision at first instance
Gregory did not contend that he did not engage in the conduct. However, in asserting that his dismissal was unfair, he argued his conduct was involuntary and unintentional and was a result of drink spiking which had occurred earlier that evening.
Qantas did not dispute Gregory’s heightened level of intoxication, but alleged Gregory consumed significant amounts of alcohol and cannabis voluntarily. It was therefore, in its submission, irrelevant whether he sexually harassed his colleague deliberately or in an unknowing state. The fact that it occurred at all was sufficient to justify his dismissal.
The Commission rejected any suggestion of drink spiking, but acknowledged that it was unlikely Gregory consciously intended to reach the level of intoxication that he did or to harass a colleague. However, the Commission found that Gregory made decisions which had risks attached for which he ought to be responsible. Commissioner Cambridge deemed it of particular importance that Qantas have faith in the decision-making capabilities of its international pilots at all times, including during lay-over periods. The Commission found that the dismissal was justified.
The decisions of the Full Bench of the FWC and Federal Court
Gregory appealed the decision and alleged the Commission failed to consider vital evidence which indicated drink spiking had occurred. The Full Bench of the Commission rejected this allegation, finding that the evidence was both inconclusive and speculative and did not need to be considered.
Gregory then appealed to the Full Federal Court on similar grounds and also argued that he was not given an adequate opportunity to develop and present submissions in relation to the evidence. The Court agreed with the Full Bench that the Commission did not overlook or simply discard the evidence. Rather, it was not necessary to consider. However, the Court agreed that Counsel had not been given the opportunity to develop submissions about the evidence on the merits of the appeal because the Court had already formed a strong opinion of the case. The Court quashed the decision of the Full Bench of the Commission and remitted the case back for further consideration.
The final decision
On 3 May 2016, the Full Bench of the Commission heard the appeal for the second time. The Full Bench agreed that the expert evidence was inconclusive and the Commission was not compelled to conclude Gregory was the victim of drink spiking or to even consider the evidence. Although it would have been desirable for the Commission to have explained this position at first instance, the Commission did not err by failing to do so. The evidence did not have any material bearing on the finding that Gregory engaged in the sexual harassment. It was the misconduct rather than the intoxication that was relied upon to justify termination. The Full Bench refused the appeal, concluding that Gregory’s termination was valid despite him being intoxicated.