“A catastrophic fall from grace”: sacking of doping and groping pilot underlines need to protect staff via thorough workplace investigations
The Fair Work Commission full bench has rejected a sacked pilot's argument that spiking of his drink meant he couldn't be held responsible for sexually assaulting a female flight crew member during a stopover in Chile.
The bench upheld a February ruling by a Fair Work Commissioner, who refused to accept that the first officer's drink was spiked at an Irish pub during a half-hour period in which he was away from his flight crew colleagues.
The first-officer was part of a four-member flight crew on a return flight from Sydney to Santiago, Chile, in February last year.
The crew — which also included the pilot's captain and two second officers — arrived in the Chilean capital on a Saturday afternoon, and decided to go out socialising together that night as they were not scheduled to return to Sydney until Monday.
After some pre-dinner drinks in the pilot's hotel room, the four crew members headed to a restaurant, then kicked on to an Irish pub at about 11pm.
The pilot disappeared for half an hour following a conversation with a person he met in the pub just after the group arrived. When he returned to the crew's table, he was clearly much worse for wear, becoming disruptive and attempting to touch the bottom of a young woman at an adjacent table.
As a result of the pilot's behaviour, the crew decided to catch a taxi back to the hotel, and he sat next to the female second officer in the back seat. During the journey, he reached his hand under the second officer's arm and held and massaged her left breast, prompting her to lean forward and twist around to put herself beyond his reach.
Back at the hotel, the other second officer reported the incident to the captain, who had been sitting in the front seat of the cab, while the pilot passed out in his room. The captain stood him down the next day after talking to the female officer, and he returned home as a passenger two days later.
Before leaving Santiago, however, the pilot provided a urine sample which identified the presence of Cannabinoids above 30 ug/L. Qantas dismissed the 53-year-old first-officer on May 7 following an investigation, and paid him five weeks wages in lieu of notice.
The pilot argued in his unfair dismissal claim that the only rational explanation for his behaviour was that his drink was spiked in the interval during which he was separated from the crew. His actions in molesting the second officer were not therefore intentional, and Qantas did not have a valid reason for sacking him, he told the FWC.
The FWC agreed that the pilot had not made conscious sexual advances towards the second officer, finding that he was "highly intoxicated to such an extent that he was dispossessed of an ability to act with conscious intention".
But the Commissioner did not buy the drink-spiking theory, landing on the "significantly more plausible proposition" that he had deliberately left his colleagues "in the pursuit of imbibing cannabis, or a cannabis derivative, or some other substance".
"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," the Commissioner said.
He said the pilot had made a decision which had clear risk attached to it, and "therefore personal culpability for his subsequent sexual harassment misconduct must follow".
The Commissioner said he had "great sympathy" for the pilot, whose unblemished 20-year career had been "decimated as a result of one bad decision". He said that if he had personally assessed the disciplinary action, he would "probably" not have opted for dismissal.
But he said it was not his role to stand in the airline's shoes.
"The standards for personal responsibility are very high in the case of an occupation such as a commercial pilot," the Commissioner said. He said the pilot had paid a very high price for his misconduct.
"The loss of long-standing, unblemished employment as an international pilot, particularly in the circumstances revealed in this instance, amounts to a catastrophic fall from grace."
The bench also rejected the pilot's other grounds for challenging the unfair dismissal ruling. iHR observes that employers can be held vicariously liable for harassment and bullying behaviour, so it is essential that a complaint be handled properly and efficiently.
One way of doing this is to conduct a thorough and expert workplace investigation. iHR provides a range of investigation services, from dealing with informal complaints to significant and complex formal investigations. We are experienced in dealing with complaints at operational to senior executive and board level, including liaising with unions involved in representing parties to a complaint. iHR can also review your internally-conducted workplace investigations, providing advice or recommendations, and can help ensure that internal workplace investigations are sound and will stand up to external testing.