A Qantas pilot who was sacked for drunkenly touching the breast of a colleague in a taxi while on an overseas stopover, has lost his unfair dismissal claim.
While the Fair Work Commission accepted that the pilot did not know what he was doing at the time due to his level of intoxication, it found that he was ultimately responsible for the sexual harassment because of decisions he had made earlier in the night.
During his nearly 20 years with Qantas, 53 year-old Steven Gregory had progressed to become a qualified First Office on 747 aircraft.
During a trip from Sydney to Santiago, Chile, he was working with three other crew – a senior Captain and two Second Officers, one of whom was female.
The crew of four arrived in Santiago on a Saturday afternoon, and met up for drinks and dinner that night.
Later, they all decided to go to an Irish pub in the city where Mr Gregory separated from the rest of his crew, disappearing for about half an hour.
When he returned, he was clearly intoxicated, and was soon trying to chat up some women sitting at a nearly table, before grabbing one of them on the bottom.
His colleagues decided to get him back to the hotel, and ordered a cab.
The Captain sat in the front seat, while Mr Gregory sat in the back with the two Second Officers.
During the trip, Mr Gregory reached his hand under the arm of the female second officer and held and massaged her breast.
She tried to resist by pushing his hand away and leaning forward and twisting around to put herself out of his reach.
The incident was witnessed by the other Second Officer.
Later, the woman told the Captain of the incident, who immediately stood Mr Gregory down from the return flight to Sydney, which was scheduled to leave on the Monday afternoon.
Mr Gregory was ordered to immediately undergo a drug test, which returned a positive result for cannabis.
After an investigation, Qantas sacked him for serious misconduct.
What was argued in the Fair Work Commission
Lawyers for Mr Gregory argued in the Fair Work Commission that the dismissal was unfair because he was the innocent victim of drink spiking at the Irish pub, and he could therefore not be held responsible for the sexual harassment of his female colleague later that night.
They also pointed to his long unblemished career with Qantas.
But Qantas argued that Mr Gregory’s conduct at the dinner and later at the pub meant that he was responsible for his level of intoxication, and said there was no medical evidence to support his claim that his drink had been spiked.
Further it believed that Mr Gregory had deliberately consumed cannabis during the time he was away from his colleagues in the pub.
What the Commission found
Commissioner Ian Cambridge concluded that Mr Gregory “did not know what he was doing when he molested [the Second Officer]” and “was not in control of his faculties at that time.”
However, he found that that he had “made a significant error of judgement earlier in the evening which has established his personal culpability for the sexual harassment.”
“The standards for personal responsibility are very high in the case of an occupation such as a commercial pilot. Consequently, the substantive reason for the applicant’s dismissal has been held to be valid,” Commissioner Cambridge said.
“Other matters relating to the personal circumstances of the applicant and the loss of long-standing, unblemished employment are tragic. However, any personal sympathy does not negate or diminish the seriousness with which the employer was entitled to treat the misconduct of the applicant. In such circumstances it would be wrong for the Commission to disturb the decision made by the employer to dismiss the applicant.
“The dismissal of the applicant was not harsh, unjust or unreasonable.”
What the experts say
George Calderon, employment lawyer and seconded consultant at Discrimination Claims, said the case is an important lesson regarding sexual harassment.
“Many people think that sexual harassment can only happen in the office, or at the work site, and that is simply not the case,” he said.
“As this matter proves, you can be in a taxi at midnight on the other side of the world, and you are still responsible for your behaviour – and you can be sacked for it.”
Sexual harassment is any unwelcome conduct that is sexual in nature, that offends, intimidates or humiliates.
It can include touching, and leering, and offensive comments, as well as messages and images sent via text message or on social media.
“Workplace sexual harassment can happen anywhere that is work-related, so that means hotels, bars, restaurants, conference centres and yes, even in taxis,” Mr Calderon said.
George Calderon is one of our specialist team at Discrimination Claims who can assist those who have experienced sexual harassment, or workers who have been unfairly dismissed.
If you have experienced sexual harassment, or believe you have been unfairly dismissed from employment, you may be entitled to compensation.
For help and advice, please call our specialist team at Discrimination Claims on
1300 853 837
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