Encouraging employees to socialise out of hours is good leadership practice, but employers should reconsider whether such encouragement extends to "kicking on" into the night, a Fair Work Commissioner has said in an unfair dismissal dispute.
Commissioner Ian Cambridge said the issue was "worthy of a review" by Qantas Airways Ltd, after he found a long-serving pilot was fairly dismissed for sexually harassing a female colleague after leaving an overseas pub.
The FWC heard a Qantas flight crew – including the pilot, the female colleague (a second officer), another second officer and a captain – travelled from Sydney to Santiago, Chile in February 2014, where they were to stop over for about two days.
After drinking for a number of hours and having dinner, the crew arrived at an Irish pub where the pilot became separated from them for about 30 minutes, before returning "rowdy" and "uninhibited".
During the taxi ride back to the hotel, the pilot held and massaged one of the female colleague's breasts before another crew member pushed his hand away.
The pilot was subsequently stood down from service and required to undergo a drug test, which detected cannabinoids in his system, before being sacked for serious misconduct.
He claimed unfair dismissal, arguing his actions were involuntary and unintentional.
He said that when he became separated from the group at the pub, his drink was spiked and he unwittingly ate food containing cannabinoids.
Qantas argued that the scientific evidence didn't support the pilot's claims, and that he chose to consume significant amounts of alcohol and cannabis while at the pub.
It said the pilot's conduct "amounted to conduct which undermined the employment contract and operated to provide sound, defensible and valid reason for dismissal".
Commissioner Cambridge agreed, and rejected the pilot's claim that he was "an innocent victim of drink spiking".
He heard the pilot was seen talking to an unknown person before he become separated from the crew, and the most plausible explanation for his disappearance was that he was "in the pursuit of imbibing cannabis".
"In all likelihood, this action of the [pilot] occurred because of an invitation or suggestion made by the person or persons with whom he had engaged in conversation shortly after arriving at the Irish pub," he said.
"The [pilot] took a decision which had clear risk attached to it.
"Unfortunately for [him] that risk was realised and therefore personal culpability for his subsequent sexual harassment misconduct must follow."
Commissioner Cambridge said Qantas should ensure that "the standards that have been applied to the [pilot] in this instance are reflective of a consistently applied level of accountability required of all of its pilots".
"As an element of sound management practice and good leadership, it would seem that whilst on any stopover the socialising of the flight crew together should be encouraged," he said.
"However, whether such encouragement for socialising, even on a two night stop over, should extend to what might be described as 'kicking on' after dinner to the nightclubs and bars precinct of a city might be a matter worthy of review."
Gregory v Qantas Airways Limited [2015] FWC 1154 (27 February 2015)
