Fair Work Act 2009

s.394 - Unfair dismissal

[1] On 20 November 2017 Mr Luke Urso made an application pursuant to s.394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by QF Cabin Crew Australia Pty Limited (QCCA or the Company). QCCA is a subsidiary of Qantas Airways Limited (Qantas).

[2] Mr Urso was employed by QCCA as a flight attendant from 22 February 2016 until he was dismissed on 2 November 2017. His dismissal followed an investigation into allegations of misconduct which concluded that he had breached various Qantas policies. Mr Urso seeks reinstatement to his former position.

[3] The application was the subject of conciliation on 11 December 2017 and remained unresolved. The matter then came before me for arbitration in Sydney on 15 March 2018. Final written submissions were provided by the parties on or about 23 March 2018.

[4] At the hearing, Mr N Read, of counsel, with Ms S Garcia of Flight Attendants' Association of Australia (FAAA) appeared for Mr Urso, and Mr S Woodbury of Ashurst appeared for QCCA. Both parties were granted permission to be represented under s.596 of the Act.

[5] The key issue for determination is whether Mr Urso consumed excessive alcohol while on slip in New York, causing him to be unable to perform his flying duties, in breach of the relevant Qantas policies.

[6] Counsel for Mr Urso put the issue for determination in the following way:

The allegation in this case is quite simply, it's one of excessive drinking, and that's what your Honour needs to determine in this case, firstly was the drinking excessive ... And the second part is ... If your Honour finds that an excessive amount of alcohol was consumed, and that was in breach of the policy, then the next step is well what was the nature and gravity of that breach of the policy? Did that actually rise to the level to justify dismissal?[1]

[7] For the reasons set out below, I find that Mr Urso's dismissal was not unfair, and accordingly I dismiss his application.

[8] The background and facts giving rise to Mr Urso's dismissal are largely uncontested, and the matters set out below are established by the evidence.

[9] Mr Urso commenced employment with QCCA on 22 February 2016 on a full-time basis as an international flight attendant.

[10] His terms and conditions of employment were regulated by an enterprise agreement, and by various policies including the Qantas Group Standards of Conduct Policy, the Qantas Cabin Crew Administration Manual, the Qantas Group Safety and Health Policy and the Drug and Alcohol Management Plan (the Policies).

[11] In early July 2017, Mr Urso had heart surgery to correct an irregular heartbeat. On 19 July 2017, Mr Urso was certified by his cardiologist as being fit to return to pre-injury work.

[12] On 20 July 2017, Mr Urso commenced operating on a 7 day flight service (known as a 'pattern') for the sectors Brisbane-Los Angeles-New York- Los Angeles-Brisbane.

[13] Mr Urso was advised by a QCCA Service and Performance Manager, Ms Collins, prior to commencing the pattern to "make sure you take it easy on this trip", given he had just returned from one month's leave after surgery.

[14] After arriving in New York on 22 July 2017, Mr Urso attended the 230 Fifth Rooftop Bar in New York between 10:00 pm and 10:30 pm and consumed alcohol with another crew member, Mr Brent Littmoden. Mr Urso said that he consumed two peach martinis and three gin and tonics.

[15] At around 11.40 pm Mr Urso was found by Mr Littmoden collapsed on the floor of the toilets in the bar. He was conveyed to Greenwich Hospital via an ambulance around midnight. He was discharged from hospital at about 6 am the next morning, 23 July 2017.

[16] While in the hospital, various tests including a toxicology report were undertaken. The toxicology report records that Mr Urso had a blood alcohol level of 205mg/dL.

[17] Mr Urso was due to operate the flight back to Los Angeles which departed at 5:10 pm on 23 July 2017. He advised his manager that he was still feeling unwell and did not attend. He subsequently flew to Los Angeles as a passenger on 25 July and returned to Brisbane on 27 July.

[18] Mr Urso undertook various medical tests and was cleared to return to work on 14 August 2017. On 15 August 2017, Mr Urso was informed by Ms Collins that he would be stood down with pay pending an investigation of allegations against him. This was followed by a letter[2] given to him which states, in part:

"Further to our discussion on 15 August 2017, I am writing to confirm my advice that we have received reports containing allegations of serious misconduct resulting from behaviour that is alleged to have occurred whilst on slip ... in New York on the 22 July 2017. The serious nature of these allegations necessitates them being fully investigated by Qantas.

Subject to a pending investigation, this letter is to advise you that effective as of Tuesday 15 August 2017 you are held out of service with pay in accordance with Clause 11 of the Flight Attendants' Association of Australia - International Division, Qantas Airways Limited and QF Cabin Crew Australia Pty Limited Enterprise Agreement 2017 (EBA 10).

A letter detailing the allegations will be available for you shortly."

[19] A letter dated 5 September 2017[3] (the Allegation Letter) was later received by Mr Urso in which the allegations were set out as follows:

" 1. At the Bar, you consumed an excessive amount of alcohol.

1. At the Bar, you were found vomiting in the lavatory basin, collapsing on the floor and/or becoming unresponsive.
2. You had to be physically removed from the Bar by fellow crew member BFA Brent Littmoden.
3. You were transported via ambulance from the Bar to Greenwich Hospital NYC.
4. On 23 July 2017 at around 2.26am, you were admitted to Greenwich Hospital due to alcohol intoxication, vomiting and/or an altered mental status due to excessive drinking.

6. At Greenwich Hospital, you returned a blood alcohol reading 0.187.

1. On 23 July 2017, you failed to operate home on QF12 JFK-LAX in your safety sensitive role as a flight attendant."

[20] The Allegation Letter stated that Mr Urso's conduct may be in breach of the Policies. It set out the relevant provisions as the 'Potential Breaches' and ended with the following:

"Luke, the allegations are extremely serious. If substantiated, they may result in disciplinary action being taken against you up to and including termination of your employment."

[21] Attached to the Allegation letter were documents listed as follows:

1. Information for the Respondent about the Investigation Process

2. EAP Information Brochure

3. Email from Ian Hosegood dated 11 August 2017

4. Statement CSM Marjolein Bakker signed 2 August 2017

5. Statement BFA Brent Littmoden signed 4 August 2017

6. Email from Whitney Hughes dated 28 August 2017

7. Standards of Conduct Policy

8. Health and Safety Policy

9. Drug and Alcohol Management Plan

10. Cabin Administration Manual - Revision 25 (12 April 2017)

[22] Mr Urso provided written response to Ms Collins in a letter dated 12 September 2017[4]. In the letter, Mr Urso responded to each of the allegations as follows:

"1. At the Bar, you consumed an excessive amount of alcohol.

I did consume alcohol at the bar. However I deny that I consumed an 'excessive amount'. I am well aware of my alcohol tolerance levels and have found that 5 drinks is a quantity that I am able to consume without compromising my ability to operate the next day.

I consumed two peach martinis and three gin and tonics. BFA Brent Littmoden was out with me that night and consumed exactly the same drinks. I now know that most American bars free pour their alcohol however I was not aware of this at the time. Having said that, Brent drank the exact same drinks and five drinks should not be considered excessive for either of us. The fact that I became very ill as a result of these drinks does not mean that the quantity was excessive.

2. At the Bar, you were found vomiting in the lavatory basin, collapsing on the floor and/or becoming unresponsive.

As outlined above, five drinks is the amount that I normally consume. This was my first trip after my surgery on 5 July 2017. My cardiologist advised me that I was under no restrictions and that I was to return to my working and social life as normal. I have attached my cardiologist's letter. I have never experienced such a negative reaction to the standard amount of alcohol that I consume. For this reason, I believe that my drink may have been spiked. I do not recall vomiting or collapsing in the bathroom.

3. You had to be physically removed from the Bar by fellow crew member BFA Brent Littmoden.

I believe that Brent assisted me in leaving the bar.

4. You were transported via ambulance from the Bar to Greenwich Hospital NYC.

I believe that Brent was the one who called the ambulance for me. However, I am unclear as to how this allegation and allegation 3 could be considered misconduct as neither of them involves my behaviour. It was Brent who assisted me in leaving the bar and who called the ambulance.

5. On 23 July 2017 at around 2.26am, you were admitted to Greenwich Hospital due to alcohol intoxication, vomiting and/or an altered mental status due to excessive drinking.

It is correct that I was admitted to hospital. However, the full intake assessment states 'patient is awake alert able to answer questions' and makes no reference to vomiting.

6. At Greenwich Hospital, you returned a blood alcohol reading 0.187.

I believe this to be correct however I was not in breach of the Drug and Alcohol Management Plan at the time.

Section 4.1 of DAMP states that staff are 'responsible for (a) not having an alcohol or other drug level at or above the cut-off level for alcohol or the cut-off level for drugs while at work, on duty or on Qantas Premises or elsewhere in Qantas Group Uniform.' I was not in breach of DAMP at the time.

7. On 23 July 2017, you failed to operate home on QF12 JFK-LAX in your safety sensitive role as a flight attendant.

I did not operate home on the QF12 JFK - LAX as I was still unwell."

[23] On 21 September 2017 Mr Urso attended a response meeting with Mr A Small (a Customer Experience Manager) and Ms Collins. Mr Urso was accompanied by Ms Garcia of FAAA.

[24] On 10 October 2017 Mr Urso was provided with a letter from Ms Collins[5] which detailed the findings and outcome of the investigation. It was held that all seven allegations of misconduct against Mr Urso were found to be substantiated. Mr Urso was asked to provide a written response as to why his employment should not be terminated and he did so on 12 October 2017[6].

[25] In his response, Mr Urso said that he thoroughly enjoyed being a part of the greater Qantas family and was proud of his role. He noted that privileges also come with responsibilities and "it is with genuine regret that I have seen the immense time and support invested in this case by Qantas, the Union, as well as my loving family; and for all this I can only be humbly grateful. Qantas management, from the Service and Performance Managers to Customer Service Mangers have engaged me with utmost professionalism that I have come to appreciate of such a large organisation. Health and safety is a priority for Qantas in the care of their employees, and I understand that this calls for increased vigilance on my part." Mr Urso said that he had learnt 'hard lessons' and had made immediate changes within his own personal life. Mr Urso further indicated that he was willing to be placed on a Drug and Alcohol Management Plan and would refrain from alcohol consumption whilst on duty slips at overseas ports for the next 12 months. Mr Urso asked that consideration be taken for him to remain employed with Qantas.

[26] On 19 October 2017 Mr Urso attended a final meeting with Ms Bowen and Ms K Wallace (a Service and Performance Manager) where discussions were held in relation to his show cause response. Ms Garcia again attended this meeting as Mr Urso's support person.

[27] On 2 November Mr Urso received a letter of termination[7] (the Termination Letter). The Termination Letter states, in part:

"Allegations about your conduct - outcome of the investigation

By letter dated 05 September 2017, you were advised of the investigation into allegations relating to your conduct whilst upline in New York (the Allegations Letter). Following an investigation into this matter conducted by Service and Performance Manager Emma Collins (Emma Collins), in the meeting held on 10 October 2017 (Findings Meeting) and as detailed in the letter (Findings Letter) issued to you at this meeting, Emma Collins advised you that the allegations had been substantiated. Your conduct was therefore in breach of Qantas policies and manuals including, but not limited to, the Qantas Standards of Conduct Policy, Safety and Health Policy and Cabin Crew Administration Manual (CAM). You were advised that QF Cabin Crew Australia Pty Limited (QCCA) was considering disciplinary action against you, including termination of employment.

Before a final determination of the outcome to this investigation was made you were invited to provide a written response which was received on 12 October 2017 (Written Response). In your Written Response, you stated 'Health and safety is a priority for Qantas in the care of their employees, and I understand that this calls for increased vigilance on my part'. You went on to state 'I have made immediate changes within my own personal life', which included joining an F45 gym. You also indicated that you would adhere to vigilant health and safety measures from here on whilst in upline ports, which as suggested by you could include being placed on a Drug and Alcohol Management Plan (DAMP) and refraining from alcohol consumption whilst on duty slips at overseas ports for the next 12 months.

In the meeting held on 19 October 2017 (Response Meeting), I asked that you clarify a statement you had made to Emma Collins in the Findings Meeting where you stated words to the effect of, "I take responsibility for going out, but not for what happened to me. I drank responsibly". In the Response Meeting, you advised "When I said I take responsibility I meant I still think my drink was spiked, it was my first trip back after surgery. Alcohol has put me into this stage, I haven't done anything that put me in this situation".

In the Response Meeting, you indicated that having your employment with QCCA terminated would be 'Disastrous'. You further stated words like 'this [your employment with QCCA] is everything. It's been my dream. It would be a big loss. A very big loss".

You also gave further assurances if you were to retain your employment with QCCA, you stated words like 'I won't drink alcohol. I will stay in my room. I will do what I have to do to show the business I am serious about keeping my job. I will go into the DAMP program and I will do what I need to show it won't happen again'.

In the Response Meeting you also spoke of your performance history with QCCA, including sharing a ThankQ recognition nomination submitted by a colleague from QF12 Los Angeles to New York on 22 July 2017.

I have now considered all of the material presented by you in relation to this matter including:

Responses provided in the Response Meeting held on 19 October 2017.

Luke, it is noted that throughout this investigation you have maintained that you consumed only five drinks on the evening in question and that you were the victim of drink spiking.

Whilst I acknowledge that BFA Brent Littmoden supports your response that only 5 drinks were consumed, Dr Ian Hosegood (Dr Hosegood) in his email dated 11 August 2017 explains that to record a Blood Alcohol Concentration (BAC) of 0.187% would likely require a minimum of approximately 18 standards drinks over 3 hours. Significant consideration has also been given to the medical information in the Greenwich Hospital report which suggests that your drinks were not spiked, as well as the statement of CSM Marjolein Bakker (CSM Bakker) in which she refers to a comment made by the Doctor at Greenwich Hospital that 'There was no evidence of drink spiking'. On balance, I have formed the view that you have not been honest throughout this investigation in maintaining that your drink was spiked and you had not consumed more than 5 drinks.

Additionally, it is noted that as a result of your substantiated misconduct, hospital fees of approximately AUD$20,000 will be incurred by QCCA.

Luke, the nature of the substantiated allegations and resulting breaches of Qantas policies and manuals, including but not limited to, the Qantas Group Standards of Conduct Policy, the Health and Safety Policy and the Cabin Crew Administration Manual (CAM) are extremely serious and as a result, QCCA has decided to terminate your employment effective from today, 02 November 2017. QCCA will pay you 4 weeks' pay in lieu of notice, in accordance with EBA10.

[28] It was also not disputed and I find that:

1. Mr Urso was aware of the QCCA Policies that he was subject to during a slip.

2. He understood the requirement that he be ready and able to attend work the following day when he attended the bar.

3. Mr Urso's Blood Alcohol Content (BAC) level recorded at the hospital during the night in question was 0.205%.

4. The allegations made against him arise from one single incident following which he was found to have engaged in excessive drinking.

5. He did not operate the flight from New York to Los Angeles as a result of the incident.

f. QCCA is entitled to regulate the out of hours conduct of employees to the extent that that conduct may impact on its interests or damage its reputation.[8]

Alleged breaches of company policies and relevant provisions

[29] The Allegation Letter referred to the following company policies:

Section 3.2 Employees are responsible for:

(a) their own behaviour and actions at all times;

(b) being aware of and complying with this Policy, other Company and applicable Qantas Group policies, procedures and relevant legislation;

(c) ensuring that their behaviour is, at all times, consistent with the Non-Negotiable Business Principles, the Qantas Group Behaviours and the Qantas Values;

(e) acting in the best interests of the Company and the Qantas Group at all times;

(g) seeking advice and/or authorisation before undertaking an action or activity that may be contrary to Company or applicable Qantas Group policy.

Section 15. Unacceptable Behaviour, Misconduct and Serious Misconduct

Staff must not engage in Unacceptable Behaviour, At-Risk Behaviour, Misconduct or Serious Misconduct including, but not limited to:

15.15 directly or indirectly engaging in activity which could by association cause the Qantas Group or any Qantas Group company public harassment or other damage or which brings, or is likely to bring, the company or Qantas Group into disrepute;

15.21 unauthorised selling, possession, distribution, drinking, or being under the influence of, alcohol (see the Qantas Group Safety and Health Policy for further information);

15.25 Failure to comply with any applicable policy, procedure or rule.

Section 2 Requirements

2.9 Employees must comply with all applicable DAMPs.

Section 3 Compliance Responsibilities

1. understanding and complying with this Policy and any supporting safety and health policies, standards and procedures;
2. conducting their duties in a safe manner to ensure personal safety, the safety of others, including customers and visitors, the safety of operations and assets;

(a) Not having an alcohol or other drug level at or above the Cut-off Level for Alcohol or the Cut-off Level for Drugs while:

(i) at work, on duty or on Qantas Premises or elsewhere in Qantas Group uniform (unless authorised by Qantas to consume alcohol or other drugs); and/or

(ii) in any Aerodrome Testing Area or other area in which consumption of alcohol or drugs is prohibited,

(g) being aware and complying with the DAMP, all applicable DAMPs and other applicable Qantas policies, procedures and legislation at all times.

Cabin crew on operational duty are 'on slip' between sign-off and sign-on away from base and are not required to perform duty during this period.

While on slip Cabin Crew are responsible for ensuring that they are adequately rested and able to perform their next operational duty. Cabin Crew are required to be ready, willing and able to perform their next operational duty following a period on slip. While on slip Cabin Crew must not engage in any activity that manifestly increases the risks of illness, injury or other reason that would prevent them from performing their next operational duty.

A Cabin Crew member who does not comply with their obligations as set out in this section or who otherwise fails to be ready, willing and able to perform their next operational duty following a period on slip may be subject to disciplinary action.

At all times on slip Cabin Crew are expected to conduct themselves in accordance with the highest community standards and to strictly comply with, and respect all local laws, policies, customs and practices.

Cabin Crew must not engage in excessive or illegitimate use of intoxicating liquor (including alcohol).

Cabin Crew must not use drugs or narcotics while on slip. In this paragraph references to intoxicating liquor, drugs or narcotics does not include substances prescribed by (and used in accordance with the prescription) a suitably qualified medical practitioner The Company will not be responsible for the cost of any medical treatment of any illness or injury caused by, or attributable to, the use of intoxicating liquor (including alcohol), narcotics or drug or addiction to intoxicating liquor (including alcohol), narcotics or drugs.

[30] QCCA's Standards of Conduct Policy (the Standards Policy)[9] prescribes the process for dealing with allegations of misconduct at clause 16. The clause also sets out the investigation process guidelines and types of disciplinary action which may be taken. The Standards Policy provides that the relevant Manager and People/HR Representative will determine what type of disciplinary action is appropriate in respect of any substantiated allegations, after taking into account the following factors:

(a) the nature and severity of the substantiated conduct;

(c) the Employee's level of knowledge and awareness of required standards of conduct (or the level of knowledge or understanding that could reasonably be expected of them) and their responsibilities pursuant to Qantas Group policy;

(d) whether the investigation process guidelines set out in the Standards Policy have generally been followed;

(f) if Dismissal or Summary Dismissal is being considered, whether the Employee has been given adequate warning that Disciplinary Action could lead to Dismissal (see sub-clause 16.22) and whether there are any reasonable and appropriate alternatives to Dismissal.

[31] The types of disciplinary action may be taken include formal warnings, demotion, dismissal and summary dismissal. Clause 16.22 (c) of the Standards Policy provides the following in respect of 'Dismissal' and 'Summary Dismissal':

"(i) Dismissal may be an appropriate disciplinary response to substantiated instance(s) of Serious Misconduct or to repeated instances of Misconduct. Disciplinary alternatives to Dismissal should be considered before Dismissal being determined as the most appropriate type of Disciplinary Action.

(ii) Where Dismissal is a possible disciplinary outcome, the Respondent should generally be advised of this fact and given the opportunity to make a written response as to why he or she should not be dismissed.

(iii) The relevant Line Manager, Executive Manager People and IR are responsible for making recommendations for Dismissal and for managing Dismissals.

(iv) If a recommendation is made to Dismiss an Employee, the Dismissal must be approved by the relevant department Head (or the appropriate Executive Committee member if the Employee is an executive). IR must also be consulted about the proposed Dismissal.

(v) If a recommendation is made to Summarily Dismiss an Employee, such action must be approved by the appropriate Executive Committee member. The Group Executive People must also be informed about the proposed Summary Dismissal.

(vi) Employees who are Dismissed or Summarily Dismissed should be informed and notified of the Nominated Person for the purposes of submission of any appeal."

[32] Clause 21 of the Standards Policy provides the following definitions for 'Misconduct', 'Serious misconduct' and 'Unacceptable behaviour':

'Misconduct' means improper or unlawful conduct and includes but is not limited to:

(b) negligence or carelessness in the discharge of duties;

(c) performing work inefficiently or incompetently for reasons within the Employee's own control;

(d) conviction by a court of an offence which renders an Employee ineligible to hold an Aviation Security Identity Card or otherwise constitutes a serious impediment to the carrying out of the Employee's duties;

(f) engaging in conduct which brings, or is likely to bring, the Company or the Qantas Group into disrepute; or

(g) deliberately providing incorrect or misleading information, at any time, which is relevant to the Employee's employment.

'Serious misconduct' means Misconduct of a serious nature and is usually conduct that is inconsistent with the continuation of the Employee's employment. Serious Misconduct may include, but is not limited to:

(a) theft, fraud, unauthorised removal or appropriation of property, assault or intoxication during the course of employment;

(b) conduct in breach of the Cardinal Rules or other conduct such as Reckless Behaviour that causes serious risk to the health or safety of a person;

(c) conduct that damages or is likely to damage the reputation, viability or profitability of the Company or the Qantas Group; or instance(s) of sexual Harassment.

'Unacceptable behaviour' means conduct that does not meet the standard of conduct required by the Company and/or is in breach of Company or Qantas Group policy.

[33] In essence, Mr Urso's case rests on the following:

• He was advised by his doctor that he could resume his 'normal social life' after his surgery.

• He only consumed five alcoholic drinks in the bar on 22 July 2017.

• Five drinks is the usual amount of alcohol that he could normally consume without any negative effects on his ability to operate the following day.

• His drinks were spiked.

• The bartender free-poured his drinks.

• Mr Littmoden consumed the same drinks and was not affected.

[34] Submissions made on behalf of Mr Urso argue that this case turned on whether there was indeed a breach of the relevant policies, and if so whether that conduct was sufficiently serious as to warrant dismissal. Counsel for Mr Urso argued that the dismissal was for no valid reason, or in the alternative, harsh because it was disproportionate to the gravity of the conduct.

[35] Evidence was given by:

1. Mr Urso;

2. Mr A Jackson (Customer Service Supervisor); and

3. Dr Odell (Associate Professor of Forensic Medicine, Monash University).

[36] Mr Urso filed three statements[10] in support of his application and gave oral evidence in the proceedings. In addition to dealing with the largely uncontested factual background, Mr Urso's evidence included the following matters.

[37] Mr Urso said that he prided himself on his impeccable work performance and has received positive reviews from peers, supervisors and customers. He said that all of his performance development forms indicated that he met all expectations and in many areas he was given the highest rating of 'role model'. He has never received a written or verbal warning about his conduct nor placed on any performance improvement plan.

[38] On 18 June 2017, whilst in Los Angeles during a pattern, he was admitted to a hospital for 2 nights due to an episode of superventricular tachycardia. Following this incident, he had a heart surgery on 5 July 2017 and was certified as being fit to return to pre-injury work from 19 July 2017. He has taken one Verapamil each day since the surgery.

[39] The pattern which commenced on 20 July 2017 was his first trip after the heart surgery where he first met Mr Littmoden, a New Zealand based crew member.

[40] Mr Urso said that at the time he and Mr Littmoden arrived the 230 Fifth Rooftop Bar 10pm and 10.30pm local New York time, "... I was aware that I had to be rested and fit to operate the flight back from New York City to Los Angeles the next day."

[41] He claimed that from experience he was able to consume about five alcoholic drinks "without being greatly affected when overseas or in a slip port" and "I would not consider that me consuming five drinks would be excessive and I was confident that I would be able to recover from the effects of the alcohol and be able to perform my duty the following day."

[42] Mr Urso's statement sets out his recollection of the events in the evening of 22 July 2017 and the days following, including:

1. He drank two peach martinis with Mr Littmoden on the rooftop bar. They stayed there for about one and a half hours.

2. They then moved down to another floor of the bar where they each had three house gin and tonics over the course of about two hours.

3. He remembered finishing all five drinks and talking to Mr Littmoden on the dance floor. He said: "I recall a security guard later coming into the bathroom where I was unwell. The security guard told me to get up. I have no idea why I was feeling nauseous after drinking the drinks. I subsequently found out that the bar does not measure its shots (but free pours)."

4. He was discharged from the hospital in the early hours of 23 July 2017 and was accompanied by Ms Bakker.

5. He felt nauseous and in pain and did not feel well enough to operate as a crew member on 23 July 2017. He said: "I was told in my training that if you feel unwell you should not operate because it can put other crew members at risk. I acknowledge that by not being fit to operate I let the crew (and my employer) down."

6. He spoke to Ms Collins on the phone and was told that he would need to have clearance from a Designated Aviation Medical Examiner before returning to work.

7. He returned to Los Angeles as a passenger on 24 July 2017 and returned to Brisbane on the morning of 27 July 2017. He was met by Ms Collins at Brisbane airport.

8. He was asked by Ms Collins to email her with his recollection of the events in New York and he did so within hours of returning to Brisbane.

9. He was also asked by Ms Collins not to 'clear' himself as fit to return work, who then said words to the effect of "I have spoken to Qantas Medical and there will be a full investigation into what happened".

[43] Attached to Mr Urso's statement was a statement of Mr Littmoden containing his recollection of the timeline of events in the evening of 22 July 2017. According to Mr Littmoden, he and Mr Urso both had 2 Peach Martinis and 3 Gin and Tonics. At about 11.30 pm Mr Urso told him that he was not feeling 100% and excused himself to the bathroom. Mr Littmoden followed him to the bathroom to check on him and found that Mr Urso vomiting over the basin and then collapsed on the floor. At about 11.50 pm he called 911 and an ambulance arrived in half a minute. At the time Mr Urso was not responsive and "had no idea who or where he was". On arrival at the hospital about midnight, Mr Urso became far more coherent and was able to tell the paramedics about his medical conditions. Mr Littmoden then contacted Ms Bakker, the CSM for the trip, to inform her what had happened. Ms Bakker arrived the hospital at about 12.30 am. He left the hospital at about 2.30 am and Ms Bakker took over the care of Mr Urso at the hospital.

[44] Mr Littmoden was not called to give evidence.

[45] Following the incident, Mr Urso was directed to undertake various pathology tests. He also contacted his cardiologist, Dr Haqqani, to advise him of the incident in New York, and was told that it was unlikely to have anything to do with his heart or the medication he was taking. On 28 July 2017 he had an appointment with Dr Haqqani and was told that his 'ECG' and blood pressure was normal.

[46] Mr Urso said that he made numerous phone calls to Qantas Medical to follow up the tests results and during a conversation with Ms Collins, he was told that "if the results are fine, you can return to work".

[47] According to Mr Urso, he exhausted his sick leave on or about 28 July 2017 and commenced unpaid sick leave. This placed him under financial strain and he felt a great deal of stress and anxiety during this time. On or around the first or second week of August 2017, he spoke to FAAA to seek advice. "I told them that I was concerned that I was not being paid and had to pay for the tests."

[48] Towards the end of August, he attended a conference with FAAA at this Commission and was later reimbursed his medical costs and backpay.

[49] Mr Urso said that prior to receiving the Allegation Letter, he told the union that he did not feel comfortable with Ms Collins investigating the matter. He thought that it was unfair that "the same person who put me at a disadvantage by putting me on unpaid leave and not immediately reimbursing my medical expenses would be the person making decisions on the allegations." Mr Urso's request for a new investigator was rejected.

[50] Mr Urso said that he was upset by the question put by Ms Collins during the response meeting when he was asked if he was aware that there is a cost involved in calling an ambulance:

"I was quite upset by this question. I never intended for the incident to happen or for it to cost the Respondent money. I did not feel like I had drunk excessively and I don't know how the Blood Alcohol Reading was so high when I had only had five drinks. I subsequently found out that the bar does not measure its shots (but free pours), which may have impacted on the BAC. I did not deliberately cause the Respondent to incur costs and I never imagined I would be as sick as I was that night. I recognise that my actions did result in the respondent incurring costs and I am sorry for this."

[51] Mr Urso said with respect to Ms Collins' finding and outcome letter:

"The letter said that I had breached the Qantas Standards of Conduct policy, Safety and Health Policy and Cabin Crew Administration Manual, although it was not clear to me what particular parts of those policies had been breached. I presumed that the Respondent believed that I had engaged in excessive alcohol use whilst on slip. Whilst I acknowledge that the BAC was recorded as being 0.187 I do not know how this reading could have been recorded. The company was unable to determine whether my action was in breach of the Drug and Alcohol Management Plan however I was told that the company was concerned about the level of alcohol that resulted in a high Blood Alcohol Content (BAC) reading (01.87)."

[52] At the final meeting on 2 November 2017 he was given a termination letter and his employment was terminated with immediate effect. He said:

"In the termination letter, Ms Ashleigh Bowen said that she had formed the view that I have been dishonest throughout this investigation because I maintained that I had five drinks. I have never been dishonest and I maintain that I only drank the five drinks that night. The Respondent also made mention of the hospital fees incurred."

[53] Mr Urso stated that working as a flight attendant was his dream and he thoroughly enjoyed his employment with the respondent. He wanted to be reinstated and is prepared to pay the costs of all the treatment provided to him in New York by way of deduction from his salary or a payment plan.

[54] In a further statement filed on 5 March 2018, Mr Urso stated that his home loan application was refused subsequent to the dismissal due to his 'insufficient borrowing power'. Mr Urso said that he had paid a deposit of $54,999 and signed an 'unconditional contract which was not subject to finance'. If his financial situation does not improve, he would lose the deposit and the first home owners grant.

[55] Mr Urso gave evidence that he obtained new employment on 29 November 2017 and has been working as a passenger services operator on a casual basis.

[56] In cross-examination, Mr Urso:

• agreed that Qantas is careful about who they appoint as flight attendants;

• agreed that during induction and training at the commencement of his employment, a number of company policies and rules were explained to him;

• agreed that these rules are mandatory; and these rules include the cabin crew administration manual, the group standards of conduct policy, group health and safety policy;

• agreed that as a member of a cabin crew, this role is critical to ensure the health and safety of passengers and crew during the course of a flight and thereafter;

• agreed that QCCA needed to be confident in his ability to be able to do the job and this forms an essential part of his ongoing employment;

• agreed that he was familiar with the various policies set out in the Allegation Letter;

• was taken through various provisions of the cabin crew administration manual in respect of responsibilities whilst on slip and agreed that he understood them all;

• agreed that there is a reference at the end of the Allegation Letter that the allegations were extremely serious and if substantiated, may result in disciplinary action being taken against him including termination of his employment;

• when asked if he was unwell and failed to operate on 23 July 2017 because of the effects of the intoxication from the previous night, he said: "I was unwell because I was extremely sick and understanding the role of the flight attendant is not going on board when you're feeling unwell - you're always encouraged to stay until you're fit enough to fly and not put the other crew members at risk";[11]

• said that he always consumes only a reasonable amount of alcohol to make sure that he is fit to fly;
• agreed that at the time he was taken to hospital he was unconscious or was not in a fit state to make an assessment as to what his condition was; and could not dispute that he was vomiting earlier in the night before he was taken to the hospital;
• agreed that he had no memory of what actually happened and relied on what he was told by Mr Littmoden;
• maintained that he did not consume an excessive amount of alcohol;

• said that he was advised verbally by his cardiologist that he was to return to his working and social life as normal and "I did double check as well when I left hospital: 'Can I please return? Do I return, like, you know, do I eat anything different? Do I do anything different?' He said: 'Luke, return to your normal social life as normal.' He actually stated that my heart doesn't even know that I had surgery because it was a simple procedure, yes."[12]

• said that he understood that there is a different alcohol content in differently mixed alcoholic drinks;

• when asked: "So when you say five drinks, do you mean, for example, five drinks from a glass regardless of what is in them?" and said: "... yes just five drinks, yes."[13]

• when asked: "In terms of the content of the drinks, from your answer earlier, I take it that you don't have regard to the alcohol content necessarily of the five drinks. It's just simply five drinks?" and said: "Yes, to be honest, I've never really just - I just ask for the drink that I see on the board or - yes."[14]

• contended that he seriously believed that his drink was spiked on the night: "I don't know what other reason I would have been so sick for."[15]

• agreed that he did not have any evidence as to the assertion of drink spiking;
• said that his memory of the night was like "a light switch, just on and off" but maintained that he had a memory of the amount of drinks that he actually consumed;
• accepted that there is conflicting evidence or reports in relation to how much was drunk on the night;

• agreed that during his first discussion with Ms Bakker he told her that he only had four drinks but "I literally had just woken up when I said that and wasn't feeling well, and I understand that I said that, yes." and "I don't understand why I said that. I just - I was feeling crap..."[16] and further added: "I said four at first, but then as I woke up and resting and thinking about it, I knew exactly how much I had."[17]

• maintained that there was no collusion or discussion with Mr Littmoden about how much he drank;
• asserted that he had a vivid and clear recollection of exactly what he drank and how much he drank, although he did not remember being unconscious in the bathroom of the bar; being taken out of the bar by Mr Littmoden and being transported by ambulance to the hospital;

• when asked if there was any acceptance of responsibility on his part in the course of his response on 12 September 2017, said: "No, and I actually said to Ms Collins: 'I take responsibility for going out.' I did go out there, but not for what happened to me. It was not deliberate."[18]

• agreed that no apology was provided in his response letter but asserted he would have said it verbally;
• agreed that the Brisbane-Los Angeles-New York trip was substantial by international flying standards for a cabin crew.
• agreed that Ms Collins was concerned about his welfare prior to him taking that trip and spoke to him personally and sent him texts.
• said that for the 5 pm return flight, he would have to report in by getting a wake-up call between 2 to 2:30pm and be ready by 3pm for pick up by a bus;
• said that whilst in LA he had plenty of rest and he was feeling good. He also slept on the bus after landing New York;
• agreed that Ms Collins offered him the option of taking annual leave after his paid personal leave exhausted and he turned down because of a planned personal trip that he wanted to take; and
• agreed that he was on unpaid leave at the time because he did not have any sick leave and had not been certified as fit to return to work.

[57] Mr Jackson has been employed by Qantas for 32 years and is currently a CSS based in Brisbane. He is also an 'info rep' for FAAA.

[58] He provided a footage he took of the drinks prepared by a bartender at the 230 Fifth Rooftop Bar during his visit of the bar with three other crewmembers on the evening of 11 January 2018.

[59] Mr Jackson's statement detailed the steps taken to prepare a peach martini. Mr Jackson said that he observed that many other mixed drinks at the bar were either measured as doubles or poured without any measuring.

[60] Mr Woodbury argued that the evidence of Mr Jackson was of no utility in relation to these proceedings.[19]

[61] In cross-examination, Mr Jackson agreed that he was not at the 230 Fifth Rooftop Bar on 22 July 2017 and had no personal knowledge as to what Mr Urso ordered or drank in that evening. He further agreed that he did not know which bartender prepared Mr Urso's drinks on 22 July 2017.

[62] Dr Odell has been a full-time Forensic Physician at the Clinical Division of the Victorian Institute of Forensic Medicine since 1996. He previously held the position of Forensic Physician in the Department of Forensic Medicine of the Victoria Police between 1991 and 1995.

[63] Dr Odell was engaged by FAAA to provide an opinion about the blood alcohol concentration reading of Mr Urso. A report prepared by Dr Odell dated 9 February 2018 was tendered into evidence[20].

[64] Dr Odell's report concluded with the following:

1. Mr Urso had a blood alcohol concentration (BAC) of 0.205% at 2:32am.

2. In order to achieve this BAC he would have had to have consumed over 10.4 standard drinks. If the five drinks he had contained over two standard drinks each, that could have accounted for the measured BAC.

3. It is likely that his BAC at 5:10 pm would have been 0.02% or lower.

4. If the hospital laboratory report of his blood alcohol was in serum or plasma rather than whole blood, then the amount he would have had to have consumed would have been even less than the figures give above, and the likelihood of him being below 0.02% at 5:10 pm even greater.

[65] In his oral evidence, Dr Odell said that he disagreed with Dr Hosegood's opinion that 0.187 could be reached by drinking 180 grams or 18 standard drinks over three hours. He said that if a male person of Mr Urso's height and weight had consumed 18 standard drinks or 180 grams of alcohol, he would have had a much higher blood alcohol than 0.187.

[66] Dr Odell asserted that a reading of 0.205 per cent is in the high range and the effects of this level of intoxication would be significant.[21]

[67] In answering a question from me, Dr Odell confirmed that there was no suggestion that Mr Urso was not metabolising alcohol in a normal fashion because of any liver or kidney or related issues[22], nor that his alcohol metabolism was affected in any way by the interaction of any pharmaceutical drugs.[23]

[68] As to the statement made by Dr Hosegood that 0.187 could be reached by drinking 180 grams or 18 standard drinks, Dr Odell said:

"... there were certain aspects of that which are a bit hard for me to understand. We do have an objective measurement of blood alcohol, so at 2.32 in the morning he actually had a blood test that measured what the blood alcohol was and there's a number that comes from a laboratory measurement of actual alcohol in blood. So, there's no dispute that his blood alcohol was 0.205 at that time. Dr Hosegood appears to have tried to compare that to a breath alcohol reading which - it's a bit had for me to understand the relevance of, because there was no breath test and there's no assumption of a breath test or any sort of issue that revolves around what a breath test might have showed, even if that was a correct calculation. A blood alcohol is a blood alcohol and the most accurate way of measuring it is to actually get some blood and measure the alcohol in it, which is what the laboratory did. Breath tests are used by the police and others, because they're fast and convenient and cheap to do and you can get an almost instant result. The way in which those devices work is that they measure alcohol in breath and then they do a little internal calculation to display what the equivalent blood alcohol might be. In this case, that's really not relevant at all. You know, there's a measurement of what it was in blood and that's what it was. So, I'm not quite sure why he did that, or what the purpose was behind doing it. Then having had a blood alcohol reading, which is a real blood alcohol actually measured in blood, it's then possible to do that calculation that I describe in my statement where you can use a person's height weight et cetera to calculate what the equivalent alcohol consumption or content would be that's equivalent to a particular blood alcohol measure. That's what I've done; that's how I got my figure of 10.4 standard drinks. That's based on long-established principles of toxicology and forensic science. It's done all the time and I've given evidence about it hundreds of times and there's been no dispute with it. That's a completely standard method of calculating alcohol consumption from blood alcohol that's used all the time in the courts. I'm not sure how Dr Hosegood got to that opinion about 18 standard drinks, but I think that's excessive for a person that only weighs 65 kilos."[24]

[69] Dr Odell confirmed in his oral evidence that in all likelihood, given the blood absorption process and timing, the most likely situation was that Mr Urso consumed around 14 standard drinks.[25]

[70] The written submissions filed on behalf of Mr Urso by FAAA state that the fundamental enquiry in this matter is:

1. Whether there was a valid reason for the dismissal based on Mr Urso's conduct;

2. if the Commission is satisfied that the conduct occurred and was in breach of QCCA's policies, did the conduct give rise to a valid reason for dismissal; and

3. Whether dismissal was the most appropriate disciplinary outcome in the circumstances where Mr Urso was a young man who did not wilfully engage in any misconduct and had an unblemished (although relatively short) service record.

[71] It was submitted that notwithstanding the investigation concluded that Mr Urso had breached various policies, the reason for the dismissal was perceived dishonesty over the number of drinks consumed. It was argued that QCCA drew unreasonable inferences from the evidence in coming to the view that Mr Urso had been dishonest. Contrary to procedural fairness, the allegation of dishonesty was never put to Mr Urso during the investigation and he was deprived of an opportunity to respond.

[72] It was further argued that the dismissal was harsh and its consequences on Mr Urso's personal and economic situation were disproportionate to the gravity of any misconduct. A lesser sanction should be imposed such as a written warning or final written warning.

[73] The submissions go on to set out the background leading to Mr Urso's dismissal which are set out earlier in this decision.

[74] The FAAA submitted that there are limitations to the extent that an employer may regulate the out of hours conduct of employees. It relied on the decision in Rose v Telstra[26] which says:

"It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:

• the conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• the conduct damages the employer's interests; or
• the conduct is incompatible with the employee's duty as an employee.

In essence the conduct complained of must be of such gravity or importance as to indicate a rejection or repudiation of the employment contract by the employee."

[75] The FAAA argued that whilst it accepted that QCCA may in some circumstances regulate employees' out of hours conduct to the extent that it may interfere with its operations, out of hours conduct must be of sufficient seriousness to justify a dismissal.

[76] In respect of breaches of policy generally, the FAAA relied on the decision in Appeal by B, C and D [2013] FWCFB 6191 which held:

"[48] ... a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer's policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable ..." (citations omitted)

[77] The FAAA argued that the seven allegations put to Mr Urso are part of the same course of conduct and the allegations, when viewed independently, are of the type that are not sufficiently connected to the workplace so as to bear the characteristics of out of hours conduct that may be properly regulated by QCCA.

[78] It submitted that:

"had the Applicant been fit to operate on 23 July 2017 it is difficult to see what, if any, conduct may have had the characteristics of Rose v Telstra. It could not be determined that the Applicant's actions had breached his obligations in the DAMP, which required staff to be free from alcohol before flying. The Applicant was discharged from hospital at 5:58 am on 23 July 2017 as being clinically sober with a steady gait clear speech and no medical complaints. The Applicant was not due to attend work until 5:10 pm on 23 July 2017 (almost 11 hours following discharge from hospital). Had the Applicant been fit to operate, and operated, is difficult to see how his conduct could have been of the type that was capable of being regulated by the Respondent."

[79] It was also submitted that Mr Urso:

1. did not deliberately and knowingly set out to breach the CAM or any other policy;

2. consumed alcohol in a manner which he believed was safe and would not expose him to risk of being unable to perform his next operational duty;

3. consumed five drinks between about 10:15 pm and 11.45 pm and was not due to attend work until 5:10 pm the following day;

4. was not aware that he had consumed 'free poured' drinks and it was reasonable to believe that he would be fit to fly if he stopped after five drinks. Mr Littmoden consumed the same amount of drinks at the same time and was able to perform duties the following day.

[80] The FAAA argued that "whilst the Applicant had an adverse reaction to the drinks, and it is unfair to characterise his drinking was 'excessive' or of the type that would put him at risk of being prevented from operating the following evening. It could not be determined that the Applicant would not have been fit to operate by the time that he was required to sign on the duty, and therefore in breach of the DAMP. If the Applicant's blood alcohol level had reduced to zero prior to his shift on 5:10pm, which is likely, then it could not be said that his drinking was 'excessive' - he would have been able to operate. The Applicant must have ceased drinking prior to midnight on 22 July 2017 when he was conveyed to hospital and was not required to sign onto duty until 5:10pm the following day."

[81] The submissions on behalf of Mr Urso also included the following:

"In the termination letter the Respondent's decision-maker, Ms Bowen, advised that she had formed the view that the Applicant had not been honest throughout the investigation in maintaining that he had not consumed more than five drinks.

The real basis of the dismissal was one of perceived dishonesty and not one of consuming excessive alcohol or being unable to operate. The Respondent drew an inference from the report of Dr Hosegood (which provided a general opinion that a person would likely required a minimum of 18 standard drinks over 3 hours to reach the Blood Alcohol Concentration detected) that the Applicant had been dishonest in maintaining that he had consumed only five drinks. This inference could not reasonably have been drawn by the decision-maker, in the circumstances where Mr Littmoden provided corroborating evidence about the number of drinks consumed and Dr Hosegood's report acknowledged there were 'wide margins of error' in assessment of estimated consumption.

Further, the allegation of dishonesty was never put to the Applicant. If the Respondent intended to rely upon the inconsistency between Dr Hosegood's report and inferential dishonesty that matter should have been put to the Applicant. Given the potential serious ramifications for the Applicant, procedural fairness required the Respondent to put any matters upon which it intended to rely to him."

[82] The FAAA submitted that whilst the outcome letter did not properly explain what parts of the various policies had been breached, it proffered that QCCA relied upon clauses 4.8.1 and 4.8.8 of the CAM which provide:

1. while on slip Cabin Crew are responsible for ensuring that they are adequately rested and able to perform their next operational duty. Cabin Crew are required to be ready, willing and able to perform their next operational duty following a period on slip. While on slip Cabin Crew must not engage in any activity that manifestly increases the risk of illness, injury and other reason that would prevent them from performing the next operational duty; and

2. cabin crew must not engage in 'excessive' use of intoxicating liquor (including alcohol). It is argued that notwithstanding that the CAM provides that a breach of clause 4.8.1 will be subject to disciplinary action, it does not warn of the potential termination of employment.

[83] The FAAA submitted that QCCA should have given greater weight to the following matters in making its decision to dismiss Mr Urso:

1. the evidence of Mr Littmoden who consumed the same drinks as Mr Urso and was not unwell;

2. Mr Urso's mistaken belief that he would be fit to fly after five drinks and did not know at the time that the drinks were free-poured;

3. Mr Urso's evidence that he had never previously had such a reaction to the amount of alcohol consumed and believed that he would be ready, willing and able to perform operational duty following the period on slip;

4. Mr Urso's cooperation with the investigation process, including undertaking tests that were not strictly relevant to the allegations such as tests relating to long term alcohol exposure;

5. the tests undertaken by Mr Urso showed no ongoing alcohol issues or cause for concern.

6. Mr Urso was remorseful that he was unable to operate the following day and let the crew down;

7. Mr Urso had a previously good employment record and had not received any warnings;

8. Mr Urso acknowledged that he caused QCCA to incur costs related to his care/treatment;

9. the dismissal would bring to an end Mr Urso's dream job; and

10. Mr Urso's conduct was less serious because it did not involve a breach of the DAMP.

[84] The FAAA submitted that the failure to give due consideration to the above matters rendered the dismissal harsh, and a lesser sanction should instead be imposed such as a written warning or final written warning.

[85] It was further argued that Mr Urso was treated differently to other staff who have breached clause 4.8.1 of the CAM. For example, the FAAA said that "a staff member who injured herself skiing whilst in slip and was prevented from performing her next operational duty was issued with a written warning."

[86] Other matters which it was submitted the Commission should consider include that Mr Urso has offered to give undertakings about his future conduct and reimburse QCCA for the costs incurred by it for his care/treatment in New York.

[87] The final submissions made on behalf of Mr Urso included that "whilst an inference may be drawn from the BAC that the applicant drank excessively, it is not conclusively proved that the conduct of excessive drinking". In this regard it was argued that excessive drinking involved an element of knowledge or recklessness on behalf of Mr Urso, and whilst the BAC was high, it argued it was open to find on the evidence of the drinking was not 'excessive'.

[88] The case put on behalf of QCCA maintains that Mr Urso's conduct whilst on 'slip' in New York, which resulted in him being unable to fulfil his duties on 23 July 2017, established a valid reason for the dismissal. The decision to terminate Mr Urso's employment was made after a thorough investigation which concluded that the conduct of Mr Urso was inconsistent with the continuation of his employment.

[89] Evidence for QCCA was given by:

1. Ms E Collins (Service and Performance Manager, Brisbane);

2. Ms A Bowen (Service and Performance Manager, Sydney); and

3. Mr I Hosegood (Director of Medical Services).

[90] Ms Collins is a Service and Performance Manager (SPM) of QCCA and has been in this role since November 2016. According to Ms Collins, she is responsible for supporting and managing approximately 200 flight attendants who work out of Brisbane International Airport in order to achieve the QCCA performance, service and safety standards. Prior to the current position Ms Collins was engaged as a Flight Attendant, Customer Service Supervisor (CSS) and Customer Service Manager (CSM).

[91] Ms Collins said that prior to Mr Urso commencing his flight in July 2017, she spoke to him and said words to the effect: "Make sure you take it easy on this trip and manage your rest given it is your first trip back." This was said to Mr Urso in the context that he had just returned from a month's leave after heart surgery and received medical clearance to recommence work on 19 July 2017.

[92] Ms Collins said that she also met with the CSS and CSM who were rostered to operate the same flight as Mr Urso from Brisbane to New York in order to address their concerns regarding Mr Urso's fitness for work and asked them to contact her if they required any support.

[93] On 23 July 2017 she received an email from Ms Bakker advising her that Mr Urso had been transported by ambulance to a hospital. Ms Collins said that from 23 July to 24 July she kept in contact with Mr Urso through text messages and phone calls to see how he was.

[94] On 27 July 2017 she met with Mr Urso in Brisbane on his arrival. During their conversation, she said to him: "If you feel you have been drink spiked, you can book an appointment with your general practitioner for a toxicology test. You should also see your cardiologist, given your ongoing symptoms, to get a report covering medical recommendations around alcohol use and any other medical restrictions. You will not fly until you have complete medical clearance. I am not confident with you operating an aircraft." She also told Mr Urso to forward any medical reports to Dr Brown and that she would be in contact in relation to future steps.

[95] Ms Collins said that she later contacted the 230 Fifth Rooftop Bar by telephone to request access to their CCTV footage for the night of 22 July 2017 to determine if someone had spiked Mr Urso's drinks, but she was refused access to the CCTV footage.

[96] During Ms Collins' telephone conversation with Mr Littmoden on 27 July 2017, Mr Littmoden told her that he and Mr Urso each consumed two peach martinis and 'half a dozen gin and tonics'.

[97] On 28 July 2017 Mr Urso texted her and advised that his cardiologist confirmed that the New York incident had nothing to do with his heart condition.

[98] On 31 July 2017 she received emails from Ms Bakker and Mr Roderick Callins, an on-call SPM at the time of the New York incident, each setting out their statement of events with respect to the New York incident.

[99] She also received a signed statement of Mr Littmoden dated 31 July 2017. She noted that some details provided by Mr Littmoden during their earlier telephone conversation were not included in the statement and in particular the comment he made that he and Mr Urso each had '2 peach martinis and half a dozen gin and tonics'. She then contacted Mr Littmoden and asked if he could include that information in his statement but was told by him that: "I did not say that. You must have misheard me. I would never consume that amount."

[100] Mr Littmoden provided an amended written statement on 2 August 2017 after being told by her to add details to his first statement that he felt comfortable with.

[101] On 9 August 2017 she was advised by Ms Hughes that Mr Urso should not return to work until Qantas Medical Services collated the blood alcohol information and pending his further CDT blood test results.

[102] On 11 August 2017 Ms Collins received an email from Dr Hosegood regarding blood alcohol calculations.

[103] Ms Collins said that she had discussed all the information she had gathered with Ms Criniti, Manager QF Cabin Crew Australia, but understood that a formal investigation into the matter would be likely conducted after Mr Urso was certified as fit for a return to duty.

[104] On 14 August 2017, she was advised by Ms Hughes that Mr Urso was medically cleared for work. On or about 15 August 2017 she was asked by Ms Criniti to investigate the incident. Ms Criniti decided that Mr Urso would be withheld from service with pay pending the outcome of the investigation.

[105] She advised Mr Urso that he was to be held out of service with pay pending a formal investigation verbally and in writing on 15 August 2017.

[106] On 28 August 2017 she received an email from Ms Hughes regarding the timeline of, and medical reason for, Mr Urso's hospitalisation.

[107] On 5 September 2017 she contacted Mr Urso to advise him that a Letter of Allegations would be issued and later emailed that letter to him.

[108] On 7 September 2017, she was provided with the hospital pathology result from Dr Brown.

[109] On 12 September 2017, she received a written response from Mr Urso responding to the Letter of Allegations.

[110] On 21 September 2017, she attended a Response Meeting with Mr Andrew Small (Customer Experience Manager), Mr Urso and Ms Garcia. During the meeting, Mr Urso provided her with one pamphlet and one internet print out on drink spiking. She said that "my overall impression of Mr Urso's response was that he was taking no responsibility for what happened."

[111] Ms Collins said that after she carefully considered all of the information that she had obtained concerning the incident, she found all allegations against Mr Urso to be substantiated.

[112] On 10 October 2017 she provided Mr Urso with a letter setting out her findings of the investigation. Mr Urso was given an opportunity to show cause as to why his employment ought not to be terminated.

[113] Ms Collins said that following her findings, her role in the process concluded. In her evidence she said that "a decision as to what course ought next be taken was to be made by Ashleigh Bowen, SPM based in Sydney International Airport. This separate process was undertaken to ensure that a fresh review of the investigation and findings could be undertaken and any decision concerning Mr Urso's employment could be made independent from the conduct of the investigation."

[114] Ms Collins explained that she was appointed as the investigator because the QCCA case management model requires managers to investigate any incidents. She was considered as an appropriate person to investigate the incident given she was not in New York at the time of the incident and that she was familiar with Mr Urso's role and how flight attendants operate on-board and on slip.

[115] Ms Collins said that the reason she asked Mr Urso if he was aware that there were costs involved in calling an ambulance was because, under clause 4.8.8 of the Cabin Administration Manual, QCCA was not responsible for the costs of any medical treatment of any illness or injury caused by or attributable to the use of alcohol.

[116] Ms Collins said that she was not aware of any skiing incident involving Ms White and said "that the circumstances of that incident appear different to that involving Mr Urso."

[117] Ms Collins said that although she did not make the decision to terminate Mr Urso, she agreed with the decision. "Mr Urso had demonstrated that he was not able to be trusted to ensure that he could meet the requirements of a Flight Attendant employed by QCCA."

[118] Ms Collins said that if Mr Urso was reinstated, it would cause significant concerns and send the wrong message to other QCCA cabin crew.

[119] Ms Collins said: "The requirement to ensure that you are fit and able to attend for duty whilst working on a pattern is one of the critical features of the role, both from a safety and operational perspective. I have no confidence that Mr Urso appreciates this, and fear that his reinstatement would send a very poor message to the other cabin crew as to the Respondent's safety requirements and how operationally critical it is for cabin crew to take responsibility for their actions whilst working overseas."

[120] In cross-examination, Ms Collins:

• agreed that she was not aware of any performance issues involving Mr Urso prior to the incident;[27]

• agreed that Mr Urso kept her 'in the loop' about his medical position whilst in Los Angeles;[28]

• agreed that cabin crew are not expected to stay in their hotel rooms in slip ports and that they go out and socialise including going to bars and drinking alcohol;[29]

• said that a person can't put themselves in a position which puts at risk the person being able to attend their next flight or perform their next operation or duty;[30]

• did not resile from her evidence that Mr Littmoden told her during their first telephone conversation that he and Mr Urso each consumed 2 peach martinis and half a dozen gin and tonics. She said: "When I did speak to Brent he was very bubbly, willing to talk about his experience, and very open about how much he did consume in the way of alcohol. And the second conversation with Brent was: I never said that, and he was quite shut down. So his personality did change between the first and second phone call.";[31]

• maintained that she had followed the necessary guidelines to start a workplace investigation based on the information provided to her;[32]

• said that throughout the investigation she had the support and resources from Qantas IR lawyers and her performance and culture manager;[33]

• when asked if she had made any inquiries at any stage of the investigation about the amount of alcohol that might be contained in each of those drinks, said: "I think I did ask the bar when I had first called and they weren't specific with the recipes of the Peach Martini.";[34]

• agreed that the content or the amount of alcohol in the drinks that were consumed was a relevant matter;[35]

• acknowledged that she did not make any inquiries about whether the bar free-poured the drinks;[36]

• accepted that all seven breaches alleged arose from a single incident and from the same conduct;[37]

• confirmed that Ms Bowen was the person responsible for making the decision on what disciplinary action was to take place;[38]

• said that Mr Urso called her on the day he found out the outcome and said 'thank you for looking after me when I was sick'. Mr Urso also sought advice about his US visa as he 'wanted to potentially move overseas and look for a new life';[39]

• agreed that the purpose of handing the investigation over to Ms Bowen was to make sure that somebody who is independent would make the decision on what disciplinary action was to happen;[40]

• agreed that Dr Hosegood's opinion was a very important consideration in reaching her finding;[41]

• said that in forming the view that Mr Urso's drinks were not spiked, she relied on Ms Bakker's statement and Ms Bakker's interaction with the doctor at the hospital;[42]

• accepted that Mr Urso did not act deliberately by putting himself in the state he was in but "there has to be some personal accountability when you do go out especially in a foreign port with someone that you don't know. ... I'm not sure that he took all of accounts of responsibility to ensure his own safety.";[43]

• agreed that she did not make a finding that Mr Urso's conduct was deliberate;[44]

• agreed that it was not a deliberate contravention of the policies but it was 'reckless behaviour';[45] and

• agreed that if Mr Urso was reinstated she would be able to continue to have a professional working relationship with him.[46]

[121] Ms Bowen has been employed by Qantas since March 2010. She has been on secondment with QCCA in her current role as a SPM since January 2016.

[122] Prior to working full time as SPM in Sydney from September 2016, she worked in Brisbane on average 2 days a week and was responsible for managing QCCA staff based in Brisbane including Mr Urso. She facilitated Mr Urso's 'Our Standards at Qantas' training on his first day at work and had a few conversations with him regarding his career progression with QCCA but had limited involvement with Mr Urso since.

[123] In October 2017 she was requested by Ms Zamudio (Manager QCCA) to consider Ms Collins' findings of the investigation against Mr Urso and determine an outcome. "At Qantas, it is common practice for there to be a different investigator and decision maker, in order to ensure fairness and due process."

[124] She received the following documents from Ms Collins with respect to the investigation:

• (a) Written statement of Marjolein Bakker of 2 August 2017;

• (b) Written statement of Brent Littmoden of 4 August 2017;

• (c) Email from Dr Ian Hosegood to Ms Collins dated 11 August 2017 regarding blood alcohol calculations;

• (d) Email from Ms Hughes to Ms Collins dated 28 August 2017 confirming time of, and medical reason for, Mr Urso's hospitalisation;

• (e) Letter of Allegations to Mr Urso dated 5 September 2017;

• (f) Email from Dr Brown to Ms Collins dated 7 September 2017 confirming reimbursement of medical costs;

• (g) Emails between Ms Collins and Ms Garcia dated 7 and 8 September 2017 regarding access to medical reports;

• (h) Written response of Mr Urso dated 12 September 2017;

• (i) Bundle of emails between Ms Collins, Ms Garcia and the Fair Work Commission in September and October 2017 regarding dispute;

• (j) Email from Dr Brown to Ms Collins dated 10 October 2017 recommending DAMP;

• (k) Letter of Findings to Mr Urso dated 10 October 2017; and

• (l) Email from Ms Hughes dated 13 October 2017 regarding request for medical invoices.

[125] On 12 October 2017 Ms Bowen received a letter from Mr Urso which set out his reasons as to why he considered that his employment should not be terminated.

[126] On 18 October 2017 she met with Ms Natalie Velickovich (Manager Performance and Culture) and Ms Jessica Farah (Manager Industrial Relations - EEO). Ms Collins joined the meeting by telephone. The purpose of the meeting was for Ms Collins to provide Ms Bowen with an overview of her findings before she considered Mr Urso's response.

[127] On 19 October 2017 Ms Bowen attended the Show Cause Response Meeting with Ms Kathryn Wallace (SPM) and Mr Urso. Ms Garcia attended by telephone as Mr Urso's support person. At the meeting Mr Urso was asked a number of questions. Ms Bowen said that based on the responses provided by Mr Urso, she formed the impression that Mr Urso was not willing to take responsibility for his actions.

[128] Ms Bowen said that Mr Urso was asked about his comments in the show cause response that 'he understood that this calls for increased vigilance on my part' and that he had made 'immediate changes within my own personal life', was inconsistent with his response during the Response Meeting with Ms Collins where he said: 'I take responsibility for going out, but not for what happened to me. I drank responsibly.' Mr Urso maintained that he had not 'done anything wrong' to put himself in a poor situation.

[129] Ms Bowen's statement sets out her considerations into the Incident:

"(a) I did not accept that it was likely that Mr Urso only consumed 2 peach martinis and 3 gin and tonics. I took into account Mr Littmoden's witness statement dated 4 August 2017, which provides that Mr Urso had 2 peach martinis and 3 gin and tonics. I also took into account the fact that the BAC Email confirmed that Mr Urso returned a blood alcohol reading equivalent to 0.187 units for breath testing. I considered Dr Hosegood's medical opinion to be more reliable than Mr Littmoden's statement, and formed the view that Mr Urso either was, or should have been, aware that he was consuming an excessive amount of alcohol.

(b) I did not accept that Mr Urso's explanations that he was 'drink spiked' was a likely explanation for his BAC. I took into account the fact that:

(i) Dr Brown's email dated 7 September 2017 provides that the hospital toxicology report indicates 'the provisional diagnosis was alcohol intoxication, no other significant medical findings, no comment about any spiking concerns'.

(ii) Ms Bakker's statement dated 2 August 2017 provides that she 'had a conversation with Luke's attending doctor who told me his heart was all good, blood tests had come back clear and that there was no evidence of drink spiking'.

(c) I took into account the fact that, based on the graph in the BAC email, it was possible for Mr Urso's blood alcohol level to reduce to zero prior to his shift at 5.10 pm. However, even if that were the case, I considered that someone with a blood alcohol reading of 0.187 at 2.32 am would not be fit to operate in a safety critical role that same day, regardless of their blood alcohol level at the time of their shift.

(d) I took into account that Mr Urso expressed remorse in his Show Cause Written Response and in the Show Cause Response Meeting. However, I considered that Mr Urso did not appreciate the seriousness of his actions. Mr Urso maintained that he drank responsibly throughout the night and did not do anything wrong to put himself in that situation.

(e) I also took into account Mr Urso's employment record, his performance reviews and other mitigating factors, including his co-operation throughout my interactions with him."

[130] Ms Bowen said that after taking into account all the information available to her, she came to the view that termination of Mr Urso's employment was the appropriate disciplinary outcome. Mr Urso's conduct was in breach of various policies, including the Qantas Standards of Conduct Policy, the Health and Safety Policy and the Cabin Crew Administration Manual. In particular, the requirement that Mr Urso:

• (a) ensure that he was adequately rested whilst on slip and able to perform on his next operational duty; and

• (b) be ready, willing and able to perform his next operational duty following a period on slip; and

• (c) avoid engaging in any activity that manifestly increased the risk of illness, injury or other reason that would prevent him from performing his next operational duty.

[131] Ms Bowen said that she had considered outcomes other than termination such as demotion or warning, but decided that any such outcomes which 'would result in Mr Urso continuing to operate as a QCCA staff member would not address the concerns in relation to his ability to be trusted whilst operating away from base and the possible risks to the safety of QCCA staff and customers'.

[132] On 2 November 2017 she provided Mr Urso with a written termination letter.

[133] In cross-examination, Ms Bowen:

• said that Mr Urso came across to her as 'extremely engaging and passionate about the company'.[47]

• agreed that prior to the incident, there was nothing to show that he was not able to be trusted to meet the requirements of the flight attendant role.[48]

• agreed that there was nothing which caused her concern about the manner in which Mr Urso had performed his role or about his commitment to safety prior to the incident.[49]

• agreed that there was nothing which demonstrated to her that Mr Urso did not appreciate the requirement to be fit and able to attend work when working slip ports.[50]

• accepted that Mr Urso's case involved one single incident but argued that '[i]t was his behaviour whilst upline and then also him subsequently not being able to operate home on his planned duty.'[51]

• agreed that the cabin crew go out regularly and socialise in slip ports.[52]

• agreed that it was the first instance of misconduct issue involving Mr Urso.[53]

• said that 'for somebody who has been released from hospital, who has consumed to the point that they recorded a 0.187 alcohol level and were hospitalised, ... when they knew they were due to operate a pattern home, that demonstrates - I won't say negligence, but in my own words, it's a poor exercise in judgment';[54]

• and: "I certainly do believe that by drinking yourself to that level of intoxication, and then not being able to operate home, certainly does demonstrate a level of negligence and also recklessness in the sense that someone is drinking to 0.187 and become hospitalised because of that.[55]

• agreed that the letter of Ms Collins' findings did not specifically identify whether it was misconduct, serious misconduct or unacceptable behaviour.[56]

• agreed that she did not believe Mr Urso about the quantity of drinks that he said he had consumed.[57]

• said that she had considered Mr Littmoden's statement but chose to rely on, or give a greater weight to, Dr Hosegood's statement and came to the conclusion that it was unlikely that Mr Urso had only consumed five drinks.[58]

• in relation to Mr Urso's claim of drink spiking, she relied on the medical information from the hospital and Ms Bakker's statement indicating that she had a conversation with the treating doctor that there was no evidence of drink spiking.[59]

• agreed that she did not tell Mr Urso that she thought he was being dishonest.[60]

• agreed that she relied on Dr Brown's toxicology report, which indicated that there was no comment about drink spiking.[61]

• said that if drink spiking was evident, that level of information, given its significance, would have been included in the report.[62]

• agreed that Mr Urso did the right thing by not operating home.[63]

• said that she was aware that the decision of termination would bring an end to Mr Urso's dream job.[64]

• agreed that this is not a case where there were repeated instances of misconduct over a period of time.[65]

• agreed that she did not make a finding that Mr Urso had consciously engaged in the behaviour.[66]

• agreed that she did not consider Mr Urso's conduct was negligent, reckless, careless or conscious.[67]

• said that she formed the view that it was serious misconduct.[68]

• agreed that Mr Urso did not breach any cardinal safety rules.[69]

• agreed that Mr Urso provided some assurances both orally and in writing to her and there was no reason to believe that he was not genuine about those assurances.[70]

[134] In re-examination, Ms Bowen said that she would not change her view if Dr Hosegood's conclusions were incorrect and the blood alcohol level was 0.205% and not 0.187, and Mr Urso had consumed 14 standard drinks and not 18 standard drinks.[71]

[135] Dr Hosegood has been employed by Qantas as Director of Medical Services since April 2012.

[136] Dr Hosegood said that in his previous role as Director of the Office of Aviation Medicine with the Civil Aviation Safety Authority (CASA) in 2006, he was responsible for the development and delivery of the CASA regulations for Alcohol and Other Drugs into law. During this process he had extensive consultations with forensic toxicologists, experts in drug and alcohol use and experts in aviation medicine and learnt a tremendous amount about the effects of drugs, and alcohol and drug and alcohol testing.

[137] In his current role with Qantas, he is responsible for the administration of the Qantas Drug and Alcohol Management Plan (DAMP) and for performing the role of Medical Review Officer (MRO) under the DAMP. He is also responsible for passenger health, aviation medicine, occupational health, workers' compensation, human factors and the Qantas health and wellbeing program.

[138] Dr Hosegood said that he sent an email to Ms Collins on 11 August 2017 in response to her request for information concerning the blood alcohol content reading of a test conducted on Mr Urso whilst working a flying pattern in New York. In preparing the email to Ms Collins, he relied upon information contained in a report on tests conducted on Mr Urso at the Hospital in New York. The Toxicology Report provided to him revealed that the alcohol test was collected at 2.32 am on 23 July 2017. He understood this was approximately two hours after Mr Urso was admitted into hospital.

[139] Dr Hosegood said that the Toxicology Report indicated that at 2.32 am Mr Urso had a blood alcohol reading of 0.187. He said: "Assuming Mr Urso had ceased ingesting alcohol prior to being transported to hospital, it is very likely that Mr Urso had a higher blood alcohol level prior to 2.32 am."

[140] Dr Hosegood said that he would expect that if Mr Urso raised his drink spiking concerns with the hospital, the medical staff would have conducted a forensic urine drug screen and reported this in the medical notes.

[141] He said that a blood alcohol reading of 0.187 was 'significant'.

[142] He said the method he used to calculate the blood alcohol content utilised the industry standard for male total weight. "Although actual height and weight when known can be used in further refining blood alcohol concentration estimations, there would be no material change to the figures that I provided in this case."

[143] Dr Hosegood gave evidence that his figure of 0.187 in his statement was based on a converted figure for a breath alcohol equivalent, and explained that "in the CASA Regulations, the breath alcohol figure is the one that is used, but in this context of calculating blood alcohol, the 0.205 per cent figure is correct."[72]

[144] He further said that he did not dispute Dr Odell's evidence that 14 standard drinks were likely to have been consumed, given Mr Urso's slim build and small BMI, meaning his total body water was lower and it would take less alcohol to reach the same figure. He also agreed with Dr Odell's evidence that it was not possible to determine the actual alcohol consumption on the basis of the information available.[73]

[145] Dr Hosegood was asked whether there would have been any ongoing effects as a result of Mr Urso's level of intoxication, even if his BAC level had reduced to 0.02%, and said: "[i]n my opinion yes, and in fact that's backed up by evidence that the post-alcohol impairment is significant and can, at these sort of levels can persist for up to 24, 48 hours after reaching 0.01 which is what we would say is a zero equivalent. So it's significant and can have obviously impacts on various physiological parameters, concentration, fatigue levels, balance, judgment and various other physiological parameters That's called post-alcohol impairment commonly known as a 'hangover'."[74]

[146] QCCA submitted that it conducted a comprehensive and thorough investigation which involved taking statements from work colleagues including Mr Urso himself and interviewing witnesses. Mr Urso was given clear notice in writing of the allegations against him and was afforded numerous opportunities to respond, both in writing and in person. Mr Urso was also given every opportunity to have a support person with him during any discussions concerning his alleged misconduct and availed himself of that opportunity.

[147] QCCA submitted that the findings were made on reasonable grounds and had regard to all available information. Those findings made against Mr Urso related to breaches of Qantas policies and include that he:

1. consumed an excessive amount of alcohol at a bar whilst on slip in New York.

2. was found vomiting in the lavatory basin in the bar, collapsed on the floor and unresponsive.

3. had to be physically removed from the bar by a fellow crew member.

4. was transported via ambulance from the bar to Greenwich Hospital NYC.

5. was admitted into Greenwich Hospital due to alcohol intoxication, vomiting and/or an altered mental status due to excessive drinking.

6. returned a blood alcohol content reading of 0.187.

7. on 23 July 2017, failed to fulfil his role as a flight attendant.

[148] QCCA submitted that Mr Urso's contraventions of the Policies binding on his employment amounted to a valid reason for his dismissal. Mr Urso's conduct whilst on 'slip' in New York, which resulted in him being unable to fulfil his duties on his scheduled return flight, was not a 'trivial misdemeanour', but rather misconduct of a level which clearly establishes a valid reason for termination.

[149] The Policies, QCCA contended, required the following of Mr Urso:

1. that he ensured his behaviour was at all times consistent with specified Qantas Group behaviours and values;

2. that he act in the best interests of QCCA at all times;

3. that he not engage in unacceptable behaviour, at risk behaviour, misconduct or serious misconduct including engaging in activity which may bring Qantas into disrepute;

4. that he be responsible for conducting his duties in a safe and compliant manner to ensure the safety of himself and others, and in compliance with all his legal and regulatory obligations regarding health and safety;

5. that whilst on slip, he be responsible for ensuring that he was adequately rested, and be ready, willing and able to perform his next operational duty;

6. that he not engage in any activity that manifestly increased the risk of illness, injury or other reason that would prevent him from performing his next operational duty;

7. that he conduct himself in accordance with the highest community standards;

8. that he not engage in excessive or illegitimate use of intoxicating liquor including alcohol; and

9. that he may be responsible for the cost of any medical treatment for any illness or injury caused by or attributable to the use of intoxicating liquor, including alcohol.

[150] QCCA said that it places a high degree of trust in its employees and its various policies make it clear that employees are responsible for their behaviour and actions at all times. The Cabin Crew Administration Manual also makes it clear that while on slip, cabin crew are responsible for ensuring that they are adequately rested and able to perform their next operational duty.

[151] QCCA contended that although Mr Urso maintained that he had consumed only five drinks and that his drinks may have been spiked, it relied on matters arising from the investigation which include:

1. The statement by Mr Littmoden, who had been with Mr Urso at the bar.

2. Mr Urso's further responses including that he did not notice a change in the taste of alcohol in the five drinks he had consumed.

3. Ms Bakker's statement to the effect that while she was in attendance at Greenwich Hospital with Mr Urso: "I had a conversation with Luke's attending Doctor who told me that his heart was all good, blood tests had come back clear and that there was no evidence of drink spiking".

4. Advice from Dr Ian Hosegood that to record a BAC of 0.187% would require a minimum of approximately 18 standard drinks over three hours.

5. The report from Greenwich Hospital which suggested that Mr Urso's drinks were not spiked.

[152] There is no dispute and I am satisfied and find that Mr Urso is a person protected from unfair dismissal by virtue of s.382 of the Act.

[153] I will now consider if the dismissal of Mr Urso was unfair within the meaning of the Act.

[154] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

[155] There is no dispute, and I find, that Mr Urso was dismissed and that subsections (c) and (d) do not apply.

Was the dismissal harsh, unjust or unreasonable?

[156] The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

1. Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

[157] The ambit of the conduct which may fall within the phrase 'harsh, unjust or unreasonable' was explained in Byrne v Australian Airlines Ltd[75] as follows:

'... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.'

[158] In Blyth Chemicals Ltd v Bushnell[76], Dixon and McTiernan JJ said:

'Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal... But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that grounds for uneasiness as to future conduct arises.'[77]

[159] I am required to consider each of these criteria in reaching my conclusion[78], which I now do.

[160] The meaning of 'valid reason' in s.387(a) is drawn from the judgement of Northrop J in Selvachandran v Peteron Plastics Pty Ltd[79]. This meaning has been applied by this Commission and its predecessors for many years:

'..., the adjective 'valid' should be given the meaning of sound, defensible or well-founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that' the employer and employee are treated fairly, ...'[80]

[161] In other words, the reasons should be justifiable on an objective analysis of the relevant facts.

[162] The question I must address here is whether there was a valid reason for the dismissal related to Mr Urso's conduct.

[163] In cases concerning conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred[81]. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct and therefore acted in the belief that the termination was for a valid reason. The Commission must make a finding as to whether the conduct occurred based on the evidence before it[82].

[164] Further, the Commission does not 'stand in the shoes' of the employer but will need to be satisfied itself that the termination of the employee was for a valid reason[83].

[165] In the present case, the incident that led to Mr Urso's dismissal involved conduct when he was off duty (on slip) in New York.

[166] It is well established that in some circumstances an employee may be validly dismissed because of out of hours conduct.[84]

[167] The issue of off duty conduct of flight attendants in slip ports has been considered by the Commission in Roach v Qantas Airways Limited[85]. There SDP Cartwright held that "from the point when a flight attendant signs on for a pattern of duty, including 'slip time', he or she is in a safety critical role, for which Qantas is subject to regulation by the Civil Aviation Safety Authority" and "the availability and fitness for duty of flight crew through the full pattern is a legitimate concern for the airline." [86]

[168] Similarly in Farquharson v Qantas Airways Limited[87], the Full Bench found that it was "the peculiar circumstances attending slip time in a foreign port that give Qantas a legitimate interest in the slip time conduct of its flight crew that is far greater than the usual interest of an employer in the off duty conduct of its employees."[88]

[169] The nature of the employment in question, and the statutory, contractual and other legal obligations applicable to such employment, affect the capacity of an employer to issue lawful directions concerning out-of-hours conduct.[89]

[170] I find that when flight attendants are on slip in an overseas port, despite being off duty, they nonetheless remain subject to the relevant QCCA policies and requirements regarding their conduct. Mr Urso did not challenge the assertion that he was aware of the policies that he was obliged to comply with.

[171] It is uncontested that Mr Urso had a BAC recorded at the hospital at 2:32am of 0.205%, having been admitted to hospital at about midnight. It is not disputed that Mr Urso's alcohol consumption took place within a short time frame, that being between around 10:15pm to 11:45pm. It is also not disputed that he was not physically well enough to perform scheduled flight duty on 23 July 2017.

[172] I have considered the opinions of Dr Odell and Dr Hosegood. Both doctors agreed that while it was not possible to calculate the exact number of standard drinks consumed, it was likely Mr Urso consumed around 14 standard drinks. The evidence does not allow me to make a finding with any certainty as to the exact quantity of alcohol Mr Urso consumed. What is clear however is that he drank a sufficiently large quantity of alcohol to record a BAC of 0.205% some three hours after his last alcoholic drink (and after having vomited), and in circumstances where he knew the importance of reporting for duty at the requisite time. One would think that Mr Urso, having just undergone a heart surgery, would have been cautious as to his alcohol consumption, particularly where concern was expressed from his manager regarding his wellbeing during his first long haul trip after returning from sick leave.

[173] The final submissions made on behalf of Mr Urso included that "whilst an inference may be drawn from the BAC that the applicant drank excessively, it is not conclusively proved that the conduct of excessive drinking."

[174] It was Mr Urso's responsibility to ascertain the content and quantity of the drinks he consumed. Mr Urso conducted himself in a manner which placed himself in a heavily intoxicated state. He consumed the alcohol voluntarily.

[175] Mr Urso's claim that he could have five alcoholic drinks without compromising his ability to operate the next day, in my view, was unfounded and was proved to be wrong.

[176] The evidence in my view clearly supports a finding that Mr Urso consumed an excessive amount of alcohol. His undisputed BAC was a direct consequence of his voluntary alcohol consumption and it was because of his alcohol consumption that he was unable to attend for his next operational duty.

[177] Further, I reject the submission that Mr Urso's lack of intent to engage in serious misconduct should somehow excuse him for the consequences of his actions. As found in Gregory v Qantas Airways Limited[90], a lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which otherwise amount to misconduct.

[178] Having considered the material before me, I am not convinced, on balance, that Mr Urso was a victim of drink spiking. It is a speculative claim that is not supported by any evidence.

[179] No medical evidence was led on behalf of Mr Urso to support his claim that the high alcohol reading was due to drink spiking or that it was elevated by any prescription drugs taken by Mr Urso for his heart condition. In fact, the evidence which is set out earlier in this decision, was to the contrary.

[180] The undisputed evidence also confirms that Mr Urso and Mr Littmoden drank from two different bars within the 230 Fifth Rooftop Bar. In these circumstances it is even less likely that all of his drinks were spiked.

[181] Mr Littmoden, who accompanied Mr Urso and allegedly consumed the same number of drinks, did not make any suggestion of drink spiking during the investigation, nor does Mr Littmoden suggest that his drinks were spiked, despite the evidence that they consumed the same drinks at the around same time.

[182] The evidence also confirms that Mr Urso was not affected by any prescription drug/ alcohol interaction.

[183] The claim that the bartender free-poured drinks does not assist Mr Urso. If free-pouring occurred, I find it implausible that Mr Urso did not feel intoxicated at an earlier time and adjust his intake accordingly. The claim that Mr Littmoden consumed the same drinks over the same period and was able to perform duty the next day is irrelevant, as no two people react to alcohol in the same way. In the end, it is Mr Urso who is responsible for putting himself in a situation where his consumption of alcohol caused him to fail in his duty to join his scheduled flight as a crew member on 23 July 2017.

[184] Mr Jackson's evidence in this regard does not assist either. Mr Jackson was not with Mr Urso on the night in question and he had no personal knowledge as to what Mr Urso consumed.

[185] In that context, the failure of Mr Urso to report to work because of his voluntary consumption of alcohol constitutes a valid reason for his dismissal.

[186] The evidence supports a finding that Mr Urso's conduct was in breach of the Policies to the extent that he did not refrain from engaging in excessive consumption of alcohol and did not refrain from engaging in an activity that manifestly increased his risk of illness, and his conduct prevented him from performing his next operational duty.

[187] I accept that it was open to QCCA to reach the conclusion it had in relation to the appropriate disciplinary action to be taken. QCCA, in reaching its decision, had properly considered all material before it and the mitigating factors put forward by Mr Urso which were set out in the Termination Letter. QCCA is entitled to be able to have trust and confidence that their flight attendants can perform their safety critical roles in a safe manner.

[188] Employees have obligations to perform their duties in accordance with their contract of employment including complying with reasonable directions given by their employer. Fundamental to these obligations is to be ready, willing and able to perform their duties at the relevant time. 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.

[189] The conduct engaged in by Mr Urso amounted to a valid reason for his dismissal. Overall, I am satisfied, on balance, that the reason for the dismissal of Mr Urso's employment was sound, defensible and well-founded.

Notification of the valid reason and opportunity to respond - s.387(b) and (c)

[190] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made,[91] in explicit terms[92] and in plain and clear terms[93]. In Crozier v Palazzo Corporation Pty Ltd[94], a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

'[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.'[95]

[191] An employee protected from unfair dismissal must also be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality.[96]

[192] The requirement to notify of the reason, together with the requirement to provide an opportunity to respond to the reason, involves consideration of whether procedural fairness was afforded to Mr Urso before his dismissal was effected.

[193] Satisfaction of these requirements will usually require a straightforward factual inquiry to be made, namely: what was Mr Urso told about the reason for the dismissal, before the dismissal took place, and was he given the opportunity to respond?

[194] In this case, Mr Urso agreed that he was notified of the reasons given for his dismissal and that he was given an opportunity to respond to the allegations set out in the Allegations Letter. However, Mr Urso asserted that he was not given the opportunity to respond to an allegation that he had been dishonest throughout the investigation or that as a result of his misconduct, significant hospital fees had been incurred by QCCA.

[195] In this regard, contentions were made on behalf of Mr Urso that QCCA relied heavily upon Dr Hosegood's opinion and formed the view that Mr Urso lied about the number of drinks consumed and that perceived dishonesty was one of the reasons for the dismissal. It was argued that QCCA failed to put these matters to Mr Urso for his response and therefore procedure fairness was not afforded to him. I find this argument unsubstantiated and must be rejected. Dr Hosegood's email of 11 August 2017 was amongst the material provided to Mr Urso when the Allegation Letter was issued. Mr Urso was aware of Dr Hosegood's opinion before he responded to the allegations against him. The notes taken by Mr Small[97] for the meeting on 21 September 2017 also indicate such discussions had taken place. Further, I accept the evidence of QCCA that this was not a reason for his dismissal and was therefore unnecessary for it to be put to him as a formal allegation for response.

[196] I am satisfied that QCCA conducted its investigation appropriately. The Allegations Letter made clear that the allegations were serious and if found to be substantiated would result in disciplinary action which could include the termination of Mr Urso's employment.

[197] As to the question whether Ms Collins was an appropriate person to investigate, there is no evidence before me to suggest that Ms Collins could not conduct the investigation appropriately or was in any way biased. On the contrary, the evidence suggests that Ms Collins was supportive of Mr Urso before and after the incident. In any event, Ms Collins was not the decision-maker in relation to Mr Urso's dismissal.

[198] I am satisfied that Mr Urso was treated fairly and was given a sufficient opportunity to respond to the allegations relied upon in effecting his dismissal. Mr Urso was represented by FAAA throughout the process and was accompanied by union officials at the meetings with QCCA managers and personnel.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[199] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[200] It is not disputed that Mr Urso was provided with the opportunity to have a support person. Mr Urso was assisted by FAAA throughout the process.

Warnings regarding unsatisfactory performance - s.387(e)

[201] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee's capacity than their conduct.[98]

[202] Given this is not a case in which Mr Urso's performance was unsatisfactory, this consideration is not relevant.

Impact of the size of the Respondent on procedures followed (s.387(f)), and the absence of dedicated human resources management specialist/expertise on procedures followed (s.387(g))

[203] The FAAA submitted that s.387(g) was a "neutral factor".

[204] I am satisfied that the size of the QCCA's enterprise and its dedicated human resource expertise did not impact on the procedures followed by it in effecting the dismissal.

Other relevant matters - s.387(h)

[205] Section 387(h) of the Act provides the Commission with a broad scope to consider any other matters it considers relevant.

[206] I have had regard to Mr Urso's personal and economic circumstances and the consequences of his dismissal. Those matters include:

1. His age and employment history with the QCCA;

2. The seriousness of the misconduct;

3. His capacity to obtain other work;

4. his clear passion about flying;

5. his positive performance reviews;

6. That Mr Urso has lost the job that he held dearly; and

7. The financial impact of the dismissal on him.

[207] I have also taken into account Mr Urso's offer to give undertakings about his future conduct whilst in slip ports if reinstated, and his offer to reimburse QCCA for the medical costs incurred in New York.

[208] The final submissions made on behalf of Mr Urso argued that, even if the Commission was satisfied that there was a valid reason for his dismissal, "it may be that the termination may still be unfair". In support of this submission were references to a number of decisions dealing with dismissals that were found to be harsh, because the dismissal was disproportionate to the gravity of the misconduct and/or because of the consequences for the personal and economic situation for the applicant.

[209] After a careful consideration of all the mitigating factors put forward by Mr Urso and in the circumstances of this matter, and for the reasons set out earlier, I am unable to conclude that his dismissal by QCCA was unfair and I do not consider his dismissal was disproportionate to the gravity of the misconduct in respect of which QCCA acted.

[210] Having considered each of the matters specified in s.387 of the Act, I am satisfied that the dismissal of Mr Urso was for a valid reason, and was not otherwise harsh, unjust or unreasonable.

[211] Accordingly, Mr Urso's application for an unfair dismissal remedy is dismissed. An order to that effect will issue with this decision.

S Woodbury for QF Cabin Crew Australia Pty Limited.

[26] [1998] AIRC 1592.

[75] (1995) 185 CLR 410 at 465 per McHugh and Gummow JJ.

[76] [1933] HCA 8; (1993) 49 CLR 66.

[78] Sayer v Melsteel [2011] FWAFB 7498.

[79] (1995) 62 IR 371.

[81] Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561.

[82] King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) Print S4213 [24].

[83] Miller v University of New South Wales [2003] FCAFC 180; (2003) 132 FCR 147.

[84] See Rose v Telstra Corporation Limited (1998) Q9292; Appellant v Respondent (1999) 89 IR 407.

[85] [2001] AIRC 1346.

[87] [2006] AIRC 488.

[89] See King v Catholic Education Office Diocese of Parramatta [2014] FWCFB 2194.

[90] [2015] FWCFB 2599.

[91] Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

[92] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151.

[93] Previsic v Australian Quarantine Inspection Services Print Q3730.

[94] (2000) 98 IR 137.

[96] RMIT v Asher (2010) 194 IR 1, 14-15.

[98] Annetta v Ansett Australia Ltd (2000) 98 IR 233 at 237.

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