Full bench nips 'free-pouring' defence in the bud

Cases

Full bench nips 'free-pouring' defence in the bud

A Qantas flight attendant who was sacked after a boozy night in Manhattan has failed to convince a FWC full bench there was an "innocent explanation" for his behaviour.

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A Qantas flight attendant who was sacked after a boozy night in Manhattan has failed to convince a FWC full bench there was an "innocent explanation" for his behaviour.

Luke Urso maintained he had only five drinks on the night, however his blood alcohol reading (0.205) suggested it was more like 14 drinks. He blamed his intoxication on the bar's practice of 'free-pouring'.

However, a full bench rejected his claim, finding that Mr Urso "got himself in that condition" as a result of "recklessness and misjudgment on his part".

Breach of company policy


QF Cabin Crew Australia (QCCA) dismissed Mr Urso after he failed to attend work after a night of drinking. A colleague had found him unconscious in a bar bathroom and he was hospitalised. Qantas ended up footing his $20,000 medical bill.

Mr Urso lodged an unfair dismissal claim, however the Fair Work Commission confirmed QCCA's right to fire Mr Urso for his off-duty conduct.

Mr Urso challenged that decision on the grounds the commission didn't deal with the central issue of his case; that he only intended to, and did, consume five drinks, but became intoxicated because of the bar's 'free-pouring'. The key to his appeal was what he intended to consume that night, as opposed to what he unintentionally consumed.

Permission to appeal was granted. 

Decision


The primary challenge to the dismissal was founded on the premise Mr Urso only consumed five drinks.

The full bench agreed with QCCA that it was 'inherently implausible and unbelievable' that Mr Urso consumed only five drinks.

It said the evidence did not sustain Mr Urso's 'innocent explanation' that he became intoxicated due to 'free-pouring', saying it could not "on the most generous view result in five glasses adding up to 14 standard drinks. It also beggars belief that Mr Urso could consume drinks as strong as he suggests they must have been without noticing the amount of alcohol in them."

The full bench found Mr Urso failed to attend work as a result of excessive alcohol consumption and that was sufficiently serious to constitute a valid reason for dismissal. 

It also that while it might be accepted the flight attendant didn't intend to become intoxicated to the degree that he could not attend for work the following day "we do not accept that intention is a necessary element of misconduct which might constitute a valid reason for dismissal for the purpose of s 387(a). Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement. In this case, Mr Urso’s responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree which ensured he would be able to attend for work and safely perform his duties the following afternoon. That necessarily required close and continuing attention to the amount of alcohol he was consuming and its effect upon him, since it is notorious that alcohol will operate to progressively diminish personal responsibility and impair a person’s sense of judgment. It defies common sense that a person exercising the requisite degree of restraint could put themselves in the position of consuming 14 standard drinks and then passing out in a period of well under two hours. That Mr Urso got himself in that condition was, we consider, the result of recklessness and misjudgement on his part.

The bench acknowledged that mitigating factors could have been taken into account had Mr Urso acknowledged his responsibility for his intoxication and his consequent failure to attend for duty.

"However, he advanced his case primarily on the basis that what occurred was not his fault, and once that central element of his case was rejected it obviously became difficult for the alternative proposition that he was genuinely remorseful and would ensure that the conduct did not recur in the future to be accepted. We certainly do not consider that the Deputy President’s rejection of this alternative case to have been unjust or unreasonable such as to justify appellate intervention."

The appeal was dismissed.

Read the judgment


Luke Urso v QF Cabin Crew Australia Pty Limited t/a QCCA (C2018/4576)[2019] FWCFB 1322

See also: Qantas steward blames boozy night on 'free-pouring'
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