Small Business Corner
A recent decision of the Full Bench of the Fair Work Commission in Gregory v Qantas upheld Qantas' decision to dismiss a pilot for serious misconduct, despite his "spiked drink" defence.
This Full Bench decision was made two years after Qantas’ original decision to dismiss the pilot for sexually harassing a colleague. What followed Qantas' original decision included:
On 7 May 2014, a Qantas pilot's employment was terminated because he had engaged in sexual harassment towards a female employee during a layover overseas. The pilot was drunk and had groped his colleague’s breast in a taxi. A drug test taken by the pilot the day after the incident was positive, above the cut-off level tested for cannabis.
Importantly, Qantas, in making its decision to dismiss the pilot from his employment, took into account that the incident was a ‘one–off’ and that the pilot had been employed for a number of years. However, ultimately, these mitigating factors were outweighed by the fact that Qantas needed to have confidence in the pilot’s decision-making capabilities and the events of 7 May 2014 did not provide Qantas with that comfort.
Following his dismissal, the pilot did not accept accountability for his conduct, but argued his dismissal was unfair on the basis that firstly, his drink had been spiked and secondly, someone must have put cannabis in his food. He argued, on this basis, that he was not responsible for his level of intoxication on the night and for that reason, not responsible for the sexual harassment. The medical evidence did not support his argument – although this point was the subject of the various Commission and Court hearings.
What does the ‘spiked drink’ or ‘someone gave me a pill’ defence look like?
In a number of other unfair dismissal cases, various similar defences have been raised by employees in response to testing positive for alcohol or drugs in the workplace:
What proactive steps can a Company take to minimise the risk of a "spiked drink" defence?
There are some proactive steps that you can take point to mitigate the risk of going through a lengthy process like what occurred in Gregory v Qantas:
Interested in seeking more insight into employee relations? Check out eRelations for quality, simple, efficient and low cost options to proactively develop and assess employee relations strategies for your business.
Gillian Bristow | Small Business Corner
If you're transporting or responsible for goods owned by a third party, it's essential that you understand the legal term "bailment".
Our legal expert, Gillian Bristow, make this complex term simple:
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