Fair Work Act 2009
s.394—Unfair dismissal

Margot Crowley
v
Qantas Airways Limited
(U2014/344)

Application for relief from unfair dismissal - whether dismissal was harsh, unjust or unreasonable - whether conduct together with previous instances of misconduct constituted a valid reason for the dismissal - application dismissed.

[1] This is an application made under s.394 of the Fair Work Act 2009 (the Act) by Ms Margot Crowley (the applicant) for an unfair dismissal remedy. The applicant was dismissed from her employment as a flight attendant with Qantas Airways Limited (Qantas) on 31 January 2014.

[2] The application was considered in a conciliation conference held on 25 March 2014 but was not able to be resolved. It was then referred to the Commission as presently constituted for hearing and determination. The hearing was conducted on 1 August 2014 in Sydney. In the proceedings on that day, the applicant was represented by Mr Jason Hart, National Industrial Officer, of the Flight Attendants’ Association of Australia – International Division (FAAA) and Qantas was represented by Ms Helen McKenzie, solicitor, who was granted permission to appear pursuant to s.596(2)(a) and (c) of the Act.

[3] The factual background and the events and circumstances which led to the dismissal of the applicant may be set out in brief terms as follows.

[4] The applicant was employed by Qantas as a flight attendant from 6 January 1986 until 31 January 2014.

[5] On 4 January 2014 the applicant commenced an eight day pattern of work from Sydney. This involved operating with the same cabin crew from Brisbane to Los Angeles, Los Angeles to New York, New York to Los Angeles and Los Angeles to Sydney.

[6] On 7 January 2014 the applicant and her crew had completed the Los Angeles to New York portion of the work pattern and had 24 hours of “slip time” in New York before operating on a flight back to Los Angeles.

[7] On 8 January 2014 the applicant failed to report for duty at the crew hotel lobby as required. When she did not turn up for transport, the Customer Service Manager (CSM) of her crew called her room at approximately 4:20 pm and was told by the applicant that she would make her own way to the airport. The flight was scheduled to depart at 7:05 pm. The applicant’s evidence is that she then fell back to sleep and did not awake until several hours later. She said that her immediate response was to try to find a way to get to the airport to see if she could catch a departing flight from New York to Los Angeles so that she could rendezvous with her colleagues in order to operate the Los Angeles to Sydney leg of the flight the next day.

[8] When the Service and Performance Manager in Sydney became aware of the applicant’s failure to attend for duty on 8 January, he attempted to contact her by telephone. After several attempts he spoke with the applicant, and asked her to wait in the hotel lobby so that she might be accompanied to the airport by another Qantas CSM. At the airport the applicant undertook an alcohol and drug test. The applicant returned a positive breath test of 0.117 at 10:19 pm and a positive confirmation breath test of 0.116 at 10:35 pm.

[9] On 9 January 2014, the applicant was returned home to Sydney via Los Angeles as a passenger. The applicant was held out of service on pay, pending an investigation.

[10] Qantas conducted an internal disciplinary investigation of the incident and in a letter dated 13 January 2014 provided the applicant with allegations against her. The applicant provided a written response to the allegations on 17 January 2014.

[11] On 20 January 2014 a meeting was held with Qantas managers to discuss the applicant’s response to the allegations. The applicant was accompanied at this meeting by Mr Hart from the FAAA.

[12] A further meeting was held 22 January 2014 at which the applicant was given a letter setting out the findings of the investigation. The findings were to the effect that the various allegations regarding the applicant’s failure to report for duty on 8 January 2014 were substantiated and that the applicant’s conduct was in breach of the Qantas Group Standards of Conduct Policy and the Cabin Crew Operations Manual. The letter described the findings as “very serious” and advised that Qantas was considering disciplinary action against the applicant which might be the termination of her employment. The letter also referred to a number of other incidents concerning the applicant in November 2004, March 2005, December 2009 and September 2012. The applicant was asked to provide a written response by 24 January 2014.

[13] In her written response, the applicant apologised for the conduct which led to the incident on 8 January 2014 and asked that her health related problems associated with alcohol be taken into consideration by Qantas. The applicant offered to take an extended period of leave, using her long service leave and other accumulated leave, in order to seek referral to a specialist drug and alcohol addiction facility for treatment. The FAAA also wrote to Qantas on 24 January 2014 indicating that there was scope under the Drug and Alcohol Management Plan (DAMP) adopted by Qantas for the applicant to be given one final opportunity for rehabilitation and to retain her employment. The FAAA’s letter also referred to the approach adopted by Qantas in dealing with another flight attendant in a similar situation as the applicant.

[14] A meeting was held on 29 January 2014 between Qantas management and the applicant to discuss the show cause letter and the responses. Mr Hart was present at the meeting as a support person for the applicant.

[15] On 31 January 2014 Qantas terminated the applicant’s employment. The letter of termination refers to the “serious nature of the substantiated allegations” and the breaches of company policy set out in the letter of 22 January 2014.

Evidence and submissions

[16] In the proceedings before me, the applicant relied upon evidence provided by herself in a written statement and in sworn testimony and a medical report provided by Dr. Clarence Pratt, a general medical practitioner who has run a private drug and alcohol treatment clinic for the last 5 years. Qantas relied upon evidence provided by Mr Donald Wilson, the Service and Performance Manager, who is the Qantas line manager for international cabin crew based in Sydney and who conducted the investigations and made the decision to terminate the applicant’s employment. Mr Wilson provided a written statement and gave sworn testimony. Qantas also relied upon a written statement and sworn testimony of Dr. Russell Brown, who is employed in the position of Medical Officer by Qantas.

[17] The evidence of the applicant and Mr Wilson dealt with the incident on 8 January 2014, the actions taken by Qantas and the investigation conducted and the previous disciplinary investigations concerning the applicant and, in particular, the investigation and findings relating to an incident in September 2012 which resulted in the applicant being given a formal warning and required to meet with Qantas Medical to devise a well-being program. There was also advice that the applicant, since the termination of her employment, has taken various steps to address her alcohol related problem including completing a treatment program at a rehabilitation facility.

[18] The evidence of Mr Wilson also dealt with the responsibilities of Qantas cabin crew as set out in the Cabin Crew Operations Manual and the implementation by Qantas of the Drug and Alcohol Management Plan (DAMP) to support Qantas employees who experience issues with alcohol or substance dependency. He was also questioned about the approach taken by Qantas in relation to another flight attendant with alcohol-related incidents.

[19] The evidence of Dr. Pratt and Dr. Brown mainly relate to the results of the alcohol breath tests on 8 January 2014 and what these might suggest about the amount and timing of the applicant’s alcohol consumption. There was no dispute that the applicant’s readings were high, consistent with a high amount of consumption or at least consumption very close to the testing time. The applicant’s evidence was that she consumed no alcohol after 7:30am on 8 January, although she had consumed a couple of glasses out of a 1.5 litre bottle of wine on the evening of 7 January and some more of the wine in the early morning hours of 8 January. The report of Dr. Pratt concluded that if the applicant “only drank 1 L of wine, then the calculations find that she probably consumed some of this wine after 7.30 am on the day in question, but if she drank the whole 1.5 L of wine or only 1.4 or 1.3 L of wine, then she likely did not drink any wine after 7.30 am.” 1 The conclusion of Dr. Brown was that it was “not possible that (the applicant) did not drink any alcohol from 7:30 am, given her reported alcohol intake and the BAC Result.”2

[20] Both the applicant and Qantas provided written outlines of their submissions and supplemented these submissions at the hearing.

[21] The applicant submitted that her dismissal was harsh, unjust or unreasonable having regard to the factors in s.387 of the Act. It was said that the positive alcohol test on 8 January 2014, albeit high, at no time constituted a danger to aircraft security, safety or operations as the applicant did not sign on for duty on that day. In relation to the other incidents relied upon by Qantas dating back to 2004, it was said that these should not be relied upon as no breath alcohol analysis tests were conducted except for one incident in 2005. It was submitted that the applicant had sought to make Qantas aware of her alcohol problem and has apologised for the incident and indicated her willingness to undergo a treatment program. It was said that the applicant has a long period of service with Qantas and that, outside the alcohol dependency problem, was a much complimented employee. Having regard to the DAMP policy and the way in which other Qantas cabin crew employees with similar problems have been treated, it was said that the applicant should not have been dismissed but transferred to other duties and given the opportunity to attend a treatment program.

[22] It was submitted by Qantas that there was a valid reason for the applicant’s dismissal. The applicant, as a flight attendant, was employed in a safety critical role and returned a positive alcohol test result in breach of her employer’s policies and with no credible explanation. The applicant’s actions on 8 January caused a delay to the departure of the aircraft and caused the crew to have to operate with one less crew member. It was said that the applicant’s misconduct on 8 January 2014, particularly in light of her safety critical role and prior employment history, constituted a valid reason for dismissal.

[23] It was also submitted by Qantas that there was a proper investigation of the 8 January incident conducted by Qantas and the applicant was notified of the findings and given an opportunity to respond to the allegations and the findings against her. It was said that Qantas must be able to have trust and confidence that employees engaged in safety critical roles can fulfil their roles in a safe manner and not be affected by alcohol. The applicant’s prior employment history, culminating in the incident on 8 January 2014, demonstrated that Qantas could no longer hold this trust and confidence in the applicant.

Relevant legislative provisions

[24] The objects of the Act in providing unfair dismissal remedies is set out in s.381 as follows:

“381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.”

[25] The procedures and remedies referred to are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned (s.381(2)).

[26] In the present matter there is no dispute that the applicant is protected from unfair dismissal (s.382 of the Act) or that she was dismissed (ss.385 and 386 of the Act). The issue is whether the dismissal was harsh, unjust or unreasonable.

[27] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must have regard to the matters listed in s.387 which are as follows:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[28] In considering whether there was a valid reason for termination relating to a person’s capacity or conduct, the Commission will have regard to what was said by Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373:

“In its context in s 170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business.” 3

[29] Each of the elements identified in s.387 must be considered independently 4 and consideration of each element is mandatory.5

[30] The assessment as to whether there was a valid reason for the dismissal entails a consideration of the nature of the conduct in the full context in which it occurred. 6 Conduct relied upon to justify a dismissal cannot be considered in a vacuum and consideration must be given to matters which mitigate the seriousness of any conduct relied upon by the employer.

[31] Even if it is found there was a valid reason for the dismissal, an overall assessment must be made as to whether the dismissal was nonetheless harsh, unjust or unreasonable. For example, a dismissal may still be harsh having regard to the circumstances of the employee concerned and the impact of the dismissal. 7 Such considerations may be matters considered to be relevant under s.387(h) of the Act.8

Consideration

s.387(a) Valid reason

[32] The applicant was employed as a flight attendant and was required to comply with the requirements of the Cabin Crew Operations Manual (CCOM).

[33] Paragraph 4.4.1 of the CCOM provides:

“The primary responsibility of Cabin Crew members is the safety of passengers.”

[34] Paragraph 4.8.1 of the CCOM provides:

“Cabin Crew Responsibilities on Slip

Cabin Crew in operational duty are ‘on slip’ between sign-off and sign-on away from base and are not required to perform duty during this period.

While on slip Cabin Crew are responsible for ensuring that they are adequately rested and able to perform their next operational duty. Cabin Crew are required to be ready, willing and able to perform their next operational duty following a period on slip. While on slip Cabin Crew must not engage in any activity that manifestly increases the risks of illness, injury or other reason that would prevent them from performing their next operational duty.”

[35] The importance of these cabin crew responsibilities whilst on international patterns of work was explained in the evidence given by Mr Wilson. If flight attendants do not attend for duty on time following slip time, this can cause delays to flight departures and significant operational costs. Further, for safety reasons, Qantas is required to have a minimum number of cabin crew members operating an aircraft. If a cabin crew member does not attend for duty and fails to notify Qantas operations, this can result in an inability to meet the minimum cabin crew numbers and a cancellation of the flight, which could cause significant financial and reputational costs to Qantas.

[36] The CCOM also makes specific reference to alcohol and drug use by cabin crew. Paragraph 4.8.8 of the CCOM provides:

“Drugs and Alcohol

In addition to the obligations elsewhere in the CCOM regarding drugs and alcohol, Cabin Crew must not engage in excessive or illegitimate use of intoxicating liquor (including alcohol) or any use of drugs or narcotics while on slip...”

[37] Paragraph 5.3.1.1 of the CCOM provides:

“Alcohol

... Operating, or attempting to operate a Company aircraft while under the influence of alcohol or other drugs will result in a review of the Cabin Crew member’s employment. This review may result in serious disciplinary action being taken including termination of employment.”

[38] All flight attendants are provided with a copy of the CCOM and are required to acknowledge their compliance with the requirements of the Qantas Cabin Crew Manual suite (which includes the CCOM) each time their sign on for operational duty.

[39] The applicant, as an international flight attendant, was employed in a safety critical role, with a primary responsibility for the safety of passengers. Qantas required a zero blood alcohol level for all employees while on duty.

[40] It is clear that the applicant failed in her responsibilities as a flight attendant on 8 January 2014. She failed to attend for duty. She advised her CSM that she would make her own way to the airport but did not do so in time to undertake her flight duties. She did not advise her supervisor or other Qantas staff that she was delayed or would not be reporting for duty.

[41] There is little doubt that these failures were the result of the applicant’s alcohol consumption during the 24 hours of “slip time” that she had in New York before operating on a flight back to Los Angeles. When flight attendants are on slip in such circumstances, they remain subject to Qantas’ policies and requirements, including the requirement to ensure that they are adequately rested and able to perform their next operational duty. It is evident from the very high positive alcohol test result recorded several hours after she should have reported for duty, that the applicant failed to meet this requirement. This is so whichever view of the evidence is taken. Whether or not the applicant was intending to report for duty and to operate on the flight on that day, there was a clear breach of the employer’s policies and requirements. The result of the applicant’s misconduct was to cause a delay in the departure of the aircraft and meant that the crew were required to operate the flight with one less flight attendant.

[42] The medical evidence presented does not detract from these findings. It is clear that the level of alcohol consumption by the applicant on the evening of 7 January and morning of 8 January was of such a level as to mean that she would be incapable of fulfilling her responsibilities as a flight attendant. Even if the applicant did not consume any alcohol after 7:30am on 8 January 2014, as she claimed but which seems unlikely having regard to the assumptions and calculations made by both Dr. Pratt and Dr. Brown, the consumption before that time was excessive.

[43] It was submitted by Mr Hart that the applicant should be accorded the benefit of the DAMP policy which refers to termination of employment on the basis of misconduct where there have been three positive alcohol or drug test results over a four-year period. Accordingly it was said that the applicant should have been afforded a further (third) opportunity before her employment was terminated. It is noted, however, that the DAMP policy provides that if a first or second positive test is also associated with acts of misconduct or negligence, other disciplinary action including termination of employment may occur on the basis of such acts. Clearly, as referred to above, the conduct of the applicant on 8 January 2014, including by failing to attend a duty and failing to communicate her delay and absence to crew members, involved a breach of various Qantas policies and requirements.

[44] In addition to the 8 January incident, there have been five instances since 2004 where the applicant has displayed signs of intoxication whilst on duty, and/or where warnings have been issued. The most recent incident occurred in September 2012, and an investigation found that various allegations and breaches of Qantas’ policies by the applicant were substantiated.

[45] The show cause letter issued to the applicant on 4 October 2012 referred to the serious nature of findings and to the applicant’s employment history with Qantas. The letter notes that:

● in November 2004 the applicant was placed on a 6 month random alcohol testing program for breaching Qantas alcohol and cabin crew policies;

● in March 2005 the applicant received a final warning and was placed on a further 6 months of random alcohol testing; and

● in December 2009 the applicant was given a further formal warning in relation to alcohol and agreed to participate in a Safe Return to Work Program for 6 months.

[46] The letter of 4 October 2012 invited the applicant to provide a written response as to why her employment should not be terminated. The applicant provided a response on 8 October 2012.

[47] As a result of the investigation, the applicant was given a formal warning on 12 October 2012 and advised that, if she engaged in unacceptable behaviour and/or misconduct in the future, further disciplinary action including termination of employment may result. In addition the applicant was required to participate in a well being program to support her fitness for duty.

[48] Having regard to the responsibilities of flight attendants, the conduct of the applicant on 8 January 2014, taken together with the previous instances where she displayed signs of intoxication whilst on duty, provided a valid reason for the dismissal. In my view the reasons given by Qantas for the termination of the applicant’s employment were “sound, defensible or well founded”.

s.387(b) Notice of reason

[49] The applicant was notified of the reason for her dismissal. She was provided with a letter of allegation, including copies of witness statements and the results of the alcohol breath tests, and was notified of the findings of the investigation.

s.387(c) Opportunity to respond

[50] The applicant was given an opportunity to respond, and did respond, verbally and in writing to the allegations and the findings against her.

s.387(d) Support person

[51] The applicant was given the opportunity to have a support person present at all meetings in relation to the investigation and dismissal. A representative from the FAAA attended the relevant meetings between Qantas management and the applicant.

s.387(e) Warning about unsatisfactory performance

[52] The dismissal related to the misconduct of the applicant. It is noted that warnings had been given in relation to previous instances of similar misconduct.

s.387(f) and (g) Procedures followed

[53] Qantas is a large employer with well-established procedures in place for the proper investigation and determination of issues relating to the conduct and performance of employees. Qantas employs human resources specialists who assist managers in relation to such procedures.

s.387(h) Other matters

[54] There are a range of additional matters which the applicant submitted are relevant to be taken into account in considering whether the dismissal was harsh, unjust or unreasonable. These included: the length of the applicant’s employment with Qantas; her family and financial circumstances and the impact that the termination of employment would have; the obligations of Qantas under its DAMP policy to assist employees with a problematic use of alcohol and other drugs; and other cases where Qantas has granted concessions to cabin crew employees who have breached the drug and alcohol policy. There was also a suggestion that the applicant had in the past sought to make Qantas aware of her alcohol problem and did ask to be referred to have a treatment program.

[55] It was submitted that the termination of the applicant’s employment was harsh or unreasonable having regard to these matters and her willingness to use her leave entitlements or to take a period of leave without pay to attend a residential treatment and rehabilitation facility.

[56] These are considerations which can be taken into account in making an overall assessment as to whether the applicant’s dismissal was unfair. It is, however, noted that during the course of her employment with Qantas, the applicant has been given several opportunities to ensure that her misconduct relating to alcohol use did not re-occur. Qantas also provided the applicant with support through its DAMP policy in devising a well-being plan and in dealing with alcohol-related issues. It was submitted by Qantas that, despite these efforts, the incident on 8 January 2014 occurred and demonstrated that it could no longer have trust and confidence in the applicant to comply with its policies and to fulfil her duties as a flight attendant in a safe manner.

[57] It was also submitted by Qantas that the decision in relation to the applicant was based on the consideration as to whether she could be trusted to fulfil the inherent requirements of her role as a flight attendant. The approach taken to a different flight attendant in different circumstances was therefore not relevant to the decision in this matter.

Conclusion

[58] Having considered all the above matters, I have come to the conclusion that the dismissal of the applicant was not harsh, unjust or unreasonable.

[59] There were valid reasons for the termination of the applicant’s employment having regard to the incident on 8 January 2014 and the previous instances of alcohol-related misconduct. As a result of the previous instances, and the investigations, meetings and warnings involved, the applicant should have been fully aware of the need to address the problems related to her alcohol use and to ensure that she complied with Qantas policies and requirements. The applicant was employed in a safety-critical role and it is important that Qantas is able to have trust and confidence that she could fulfil this role in a safe matter and not be affected by alcohol.

[60] There was a full and proper investigation by Qantas of the latest incident involving alcohol abuse by the applicant. The applicant was advised of the allegations against her and was given an opportunity to respond to the allegations with the assistance of the FAAA. The outcome of the process was the decision by Qantas to terminate the employment of the applicant.

[61] I have no doubt that the applicant has sought to address the problems and issues which put her employment with Qantas in jeopardy and resulted in previous warnings being given. I also have no doubt that the applicant is sincere in the intention to deal with her alcohol-related problems and to undergo necessary treatment. However the applicant has been given opportunities and assistance in the past to address these problems, especially and most recently in relation to the September 2012 incident. The incident of 8 January 2014 demonstrated that, despite such opportunities, there were continuing problems relating to the applicant’s conduct which directly impacted on her work as a flight attendant.

[62] Despite the long service of the applicant and the significant financial and other implications the termination of employment might have for her and her family, it cannot be concluded in all the circumstances that the termination was unfair.

[63] For all the above reasons, I am not satisfied that the dismissal was harsh, unjust or unreasonable. Accordingly, the application is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

J Hart of the Flight Attendants’ Association of Australia (FAAA) for the applicant.

Ms H McKenzie, solicitor, for the respondent.

Hearing details:

2014.

Sydney:

1 August

 1   Exhibit H4, Medical Report of Dr. Clarence Pratt, 11 July 2014, p 7.

 2   Exhibit M3, Statement of Dr. Russell Brown, 23 June 2014 at p 2.

 3   See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 144; Annetta v Ansett Australia (2000) 98 IR 233 at 235; Bo Vu v State of Victoria (2001) 110 IR 383 at [80]; Potter v WorkCover Corporation (2004) 133 IR 458 at [14]; Rail Corp (NSW) v Vrettos (2008) 176 IR 129 at [51].

 4   Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth (2010) 202 IR 388 at [13].

 5   Coal & Allied Mining Services Pty Ltd v Lawler (2011) 207 IR 177 at [4] per Cowdroy J (which whom Marshall J agreed).

 6   Qantas Airways Ltd v Cornwall (1998) 83 IR 102 at 106; Rail Corp (NSW) v Vrettos (2008) 176 IR 129 at [51].

 7   Windsor Smith Ltd v Liu (Giudice J, Polites SDP and Gay C, Q3462, 13 July 1998); Smith v Moore Paragon Australia Pty Ltd (2004) 130 IR 446 at [45]; Rail Corp (NSW) v El Hawat (2006) 156 IR 385 at [25].

 8   Barclay v Nylex Corporation Pty Ltd (2003) 126 IR 294 at [278] - [280].

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