The Full Bench of the Fair Work Commission has recently upheld the dismissal of a pilot who sexually harassed a co-worker while intoxicated.
Mr Gregory was a pilot employed by Qantas with a 20-year unblemished record. During a stopover in Santiago, Chile, Mr Gregory went out for drinks with his flight crew. This was not unusual behaviour for Qantas flight crews during stopovers while overseas. However, later that night Mr Gregory became intoxicated and grabbed the breasts of a female co-worker. When Mr Gregory woke up the next morning, he claimed to have been the victim of drink-spiking and apologised for his actions.
Mr Gregory was dismissed for sexual harassment after his co-worker complained about his actions.
Mr Gregory made an unfair dismissal claim, repeating that he was the victim of drink-spiking and arguing that his punishment for ‘one bad decision’ was grossly disproportionate.
The Commission did not accept Mr Gregory’s claim, finding that his drink was not spiked and that, instead, before groping his colleague Mr Gregory had separated from his co-workers for a time with the specific intention of purchasing and imbibing a cannabis-based substance.
The Commission therefore accepted that Qantas had a valid reason for Mr Gregory’s dismissal which was not outweighed by Mr Gregory’s clean record, and that overall the dismissal process adopted by Qantas was fair.
Mr Gregory challenged the above findings but was unsuccessful when the Full Bench refused his appeal last month.
Lessons for employers
The Commission’s decision can be contrasted with a decision of the NSW Industrial Relations Commission last year where an employee dismissed for sexual harassment at a Christmas party was reinstated because a colleague who engaged in similar behaviour was not also dismissed.
The decision reinforces that an employer can discipline an employee for unacceptable conduct occurring outside of work hours if that conduct has a bearing on the workplace or the working relationships between employees. However, any disciplinary action must be proportionate, fair and consistent.
Employers should ensure that they have workplace policies that adequately identify appropriate and inappropriate behaviours for employees at work-related functions, regardless of whether those events are away from the office or outside working hours. In Mr Gregory’s case, the Commission suggested that Qantas develop clear policies about the behaviour expected of its staff while on stopovers to try and avoid similar situations occurring in the future.