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Unfair DismissalAugust 31, 2018
The story of a Qantas flight attendant who was sacked after an off-duty drinking session resulted in a missed shift and a $20,000 hospital stay has many employers wondering: can I dismiss staff for their out-of-hours conduct?
The attendant in question was on a stop-over in New York when they spent an evening drinking peach martinis and gin and tonics at the popular 230 Fifth Rooftop Bar.
According to the AFR the attendant was later hospitalised, recording a blood-alcohol reading of .205 and racking up a medical bill topping $20,000. Not surprisingly, they were unable to attend their shift the next day, a 5.10pm flight to Los Angeles.
Upon their return to Australia the attendant was stood down and then fired following a disciplinary process for breaching Qantas code of conduct and safety policies due to ‘drinking excessively’.
The Fair Work Commission found that the dismissal was not unfair as the employee had a duty to be ‘ready and able’ to work.
The Fair Work Commission held that although the conduct occurred out of hours, it had significantly impacted the business. An additional consideration was that the employee worked in a ‘safety critical’ position.
“I find that when flight attendants are on slip in an overseas port, despite being off duty, they nonetheless remain subject to the relevant Qantas policies and requirements regarding their conduct.”
“Arguably the obligation to be ready and able to work at the requisite time is greater when an organisation clearly relies on the employee in circumstances where his or her absence cannot be properly remedied by a substitute person or the transfer of duties to others.”
The ruling found that the dismissal was valid.
The finding begs the question: do small business employers have the same ability to dismiss staff for their out-of-hours conduct?
The short answer is yes, you can dismiss a staff member for their out-of-hours conduct. But as in most things workplace relations, it is rarely so straightforward. Dismissing an employee for their out-of-hours behaviour means making sure their conduct only falls within the following parameters:
Dismissal of any kind is a difficult issue for any small business, and serious misconduct based on off-duty behaviour is especially complex. Before taking action speak to an Employsure Adviser to get the most up-to-date advice.