By Michael Selinger

Employers can sometimes be confronted with a decision on how to discipline workers who fail to attend work after a big night.

In the recent case of Luke Urso v QF Cabin Crew Australia Pty Limited T/A QCCA (2018), the Fair Work Commission (FWC) considered whether an international flight attendant, Mr Urso, was unfairly dismissed for his out-of-hours conduct after he didn’t show up for work following a night out in New York.

The events

During a scheduled stopover between two flights, Mr Urso had visited a bar in Manhattan with another Qantas employee and was later discovered collapsed on the floor of the toilets.

When he was taken to hospital, his blood alcohol concentration was tested and found to be 0.205%.

Mr Urso was discharged from hospital the following day and was due to work on a flight departing that afternoon. He instead contacted his manager to advise that he was still feeling unwell and would not be attending work.

After he returned to Brisbane, he was met by Qantas’ Service and Performance Manager who advised him that he would not be permitted to work on a flight until he was medically cleared to do so.

Qantas then commenced an investigation into the flight attendant’s conduct and the events that took place in New York. The investigation found that Mr Urso had consumed in excess of five standard drinks, in breach of the employer’s policies and procedures.

It was concluded that the employee had:

• failed to ensure that during his time off-duty between flights he was adequately rested and able to perform his next operational duty;
• failed to be ready, willing and able to perform his next operational duty;
• failed to abstain from activity that would increase the risk of illness which would prevent him from performing his next operational duty; and
• consumed excessive alcohol while off-duty.

Mr Urso was subsequently dismissed for misconduct.

The case

The FWC stated that an employee may be validly dismissed for out-of-hours conduct in some circumstances and confirmed that workers have an obligation to perform their duties in accordance with their employment contract and reasonable directions given by their employer.

When an employee’s absence cannot be properly remedied by a substitute person, or the transfer of duties to others, the worker is obligated to be ready, willing and able to perform their duties at the time required by the employer.

The FWC found that the conduct engaged in by Mr Urso was a valid reason for his dismissal.

Lessons for employers

Employers have a primary duty of care to ensure that their workers, and others affected by their workers, are safe.

In this case, the employer took appropriate steps to investigate whether the worker had acted in a way that prevented him from performing his duties safely.

Although the employee did not attend work and expose others to risk, the out-of-hours conduct was inappropriate and breached the company’s policies.

Qantas was therefore able to dismiss the employee for out-of-hours conduct which amounted to misconduct.