Gregory v Qantas Airways Ltd [2016] FCAFC 7

Unfair dismissal proceedings were commenced before the Fair Work Commission in May 2014 by a Qantas pilot, Mr Gregory, following termination of his employment as a result of an incident which took place with fellow crew members on a layover in Chile.

Mr Gregory, a 747 First Officer employed by Qantas for 20 years, flew into Santiago on 8 February 2014 and was due to fly out two days later. On the evening of arrival during social drinks with his work colleagues he left the group for 30 minutes or so. On his return the group noticed his conduct had become problematic and they decided to return him to the hotel.

While travelling in a taxi Mr Gregory touched the breast of the female Second Officer who was visibly upset. This was observed by colleagues and reported to the Captain who informed Mr Gregory the next afternoon of his behaviour and that he would be stood down for the return trip and subject to a drug test. Mr Gregory apologised to the Second Officer and his apology was accepted.

On 10 February 2014 Mr Gregory underwent a drug test which showed the presence of cannabinoids indicating he had ingested or smoked cannabis. He was dismissed by Qantas on 7 May 2014 on account of serious misconduct, namely sexual harassment of a female colleague.

Fair Work Commission

Mr Gregory then made an unfair dismissal application to the FWC. He argued that he had not taken cannabis but rather been the victim of drink spiking and as such there was no valid reason for termination of his employment rendering the termination unfair. Mr Gregory did not deny the sexual harassment but maintained he was not responsible for the conduct due to his drink being spiked.

Qantas argued the evidence, namely the drug test results, did not support the argument that Mr Gregory’s drink was spiked and rather indicated Mr Gregory had smoked cannabis while absent from his colleagues, returned affected by the drug and alcohol he had been drinking and then sexually harassed the Second Officer.

At first instance Commissioner Cambridge concluded the evidence did not support any finding that drink spiking

caused Mr Gregory to be affected by drugs, and that rather he had separated from colleagues as a deliberate act in pursuit of cannabis which he then imbibed. Commissioner Cambridge also held Mr Gregory was culpable for his sexual harassment of a female colleague, even though he did not consciously intend to sexually harass that colleague, on account of his decision to imbibe cannabis which presented a risk that his behaviour would be altered. The Commissioner also had regard to the confidence Qantas must have in its pilots which was eroded by Mr Gregory’s conduct.

Mr Gregory sought to appeal the decision. In dealing with leave to appeal the Full Bench of the FWC concluded there was no appealable error in Commissioner Cambridge’s judgment.

Federal Court of Australia

Mr Gregory then appealed the Full Bench of the FWC’s decision to the Full Court of the Federal Court of Australia (FCA). The Full Court of the FCA found the Full Bench of the FWC had not properly performed its task in dealing with the application for leave to appeal Commissioner Cambridge’s decision. In particular the Full Bench had exceeded its jurisdiction by purporting to deal with the merits of the appeal without conducting a hearing enabling Mr Gregory to advance arguments.

However, the Full Court of the FCA also dismissed the argument that there was any jurisdictional error in Commissioner Cambridge’s decision and remitted the application for leave to appeal to the Full Bench of the FWC.

Key learnings from this case

  • Employees engaged in the taking of illicit drugs in social outings with work colleagues are responsible for their actions while affected by those drugs;
  • The nature of the job and its responsibilities will be relevant when examining serious misconduct; and
  • Think carefully about appealing a FWC Full Bench decision not allowing an appeal when the first instance decision of a single Commission member is a comprehensive and supportable one.