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[65]
[2019] FWCFB 1322
General information, not legal advice.
Fair Work Commission (Full Bench)
2019-03-06
Original judgment source is linked above.
s.604 - Appeal of decisions
Appeal against decision [2018] FWC 4436 of Deputy President Dean at Sydney on 31 July 2018 in matter number U2017/12351.
[1] Mr Luke Urso has lodged an appeal against a decision issued by Deputy President Dean on 31 July 2018[1] (Decision) in which his application against QF Cabin Crew Australia Pty Limited (QCCA) for an unfair dismissal remedy was dismissed. Permission to appeal was granted in accordance with ss 400(1) and 604(2) of the Fair Work Act 2009 (FW Act) by a differently constituted Full Bench in a decision issued on 22 October 2018[2] (PTA decision). This decision is concerned with the merits of Mr Urso's appeal.
[2] The basic facts of this matter are relatively uncontroversial. QCCA is a subsidiary of Qantas Airways Limited (Qantas) and employs flight attendants who work on Qantas international flights. Mr Urso commenced employment as a flight attendant with QCCA on 22 February 2016. In early July 2017 Mr Urso was required to undergo heart surgery to correct an irregular heartbeat, and on 19 July 2017 he was certified by his cardiologist as being fit to return to his full duties. On 20 July 2017 Mr Urso commenced work on a 7-day Brisbane-Los Angeles-New York-Los Angeles-Brisbane flight pattern. He was advised by a QCCA manager to make sure to "take it easy" before he left.
[3] On 22 July 2017 the flight landed in New York at about 5.15pm local time. He had eaten during the flight. The return flight to Los Angeles was due to leave New York at 5.10pm the following day. He and a work colleague, Brent Littmoden, arranged to go out that evening, and they attended the 230 Fifth Rooftop Bar at about 10.00pm. Initially they were located at a bar on the rooftop itself where they consumed alcohol, but it began to rain. They then retreated downstairs to an interior area in the venue, where there was more consumption of alcohol and dancing. There is no evidence that Mr Urso ate anything while at the bar or had eaten anything since he disembarked from the flight.
[4] At about 11.40pm Mr Littmoden found Mr Urso collapsed and unconscious on the floor in the bar's toilets. He was conveyed by ambulance to a hospital. A toxicology report showed that Mr Urso had a blood alcohol level of 205mg/dL (which is equivalent to a blood alcohol concentration of 0.205%) at 2.32am on 23 July 2017. Expert evidence adduced before the Deputy President demonstrated that Mr Urso must have consumed around 14 standard drinks to be at that blood alcohol level at that time. There was no suggestion that Mr Urso was not metabolising alcohol in a normal fashion or that his metabolism was affected by consumption of any pharmaceutical drugs. Mr Urso was discharged from hospital at about 6.00am, but he informed his manager that he remained unwell and he was unable to attend work for the return flight to Los Angeles that afternoon. He flew to Los Angeles as a passenger on 25 July 2017 and returned to Brisbane on 27 July 2017. Mr Urso's hospitalisation cost about $20,000, which was paid by QCCA.
[5] On 15 August 2017, having been cleared to work after undertaking medical tests, Mr Urso was stood down with pay pending an investigation of the New York incident. On 5 September 2017 QCCA sent a letter to Mr Urso containing a number of misconduct allegations against him. The gravamen of these were that he had consumed an excessive amount of alcohol on the evening on 22 July 2017 which caused him to fail to attend work in his safety sensitive role as a flight attendant the following day. Mr Urso provided a response to the allegations, which included the contention that he had only consumed five drinks (that is, five glasses of alcohol), which was not excessive in number and led him to believe that his drinks had been spiked. Having considered Mr Urso's response, QCCA found that the allegations against him were substantiated. He was then asked to show cause why he should not be dismissed. Mr Urso responded to this and gave certain guarantees about his future behaviour, but nonetheless QCCA proceeded to dismiss him, with four weeks' pay in lieu of notice, effective from 2 November 2017. The dismissal was communicated in a letter dated 2 November 2017, and the letter included the following statement: "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".
[6] Mr Urso's unfair dismissal remedy application was filed on 20 November 2017. In the proceedings before the Deputy President, Mr Urso contended that there was no valid reason for his dismissal for reasons which included the following:
he had not intended to consume the amount of alcohol that he did;
he had consumed only five drinks which was consistent with his normal practice and which he considered to be a safe amount that would allow him to attend for work as normal the following day;
the excessive amount of alcohol consumed was because his drinks were spiked and/or the bar had "free poured" its drinks (that is, the quantity of alcohol in each drink was not measured).
[7] Mr Urso also contended that his dismissal was harsh, having regard to his prior good record of service, his lack of any history of alcohol abuse, his preparedness to provide assurances about his future conduct and submit to regular testing, and the serious personal and financial consequences of the dismissal for him.
[8] In the Decision the Deputy President, after outlining in detail the evidence and submissions of the parties, proceeded to consider whether the dismissal has harsh, unjust or unreasonable and in doing so dealt separately with each of the matters required to be taken into account by s 387. In respect of the existence of a valid reason for the dismissal under s 387(a), the Deputy President first found, by reference to a number of previous authorities, that Mr Urso remained bound by QCCA's policies and requirements concerning conduct during "slip time" in New York. The Deputy President then considered Mr Urso's consumption of alcohol, and stated the following conclusions (footnote omitted):
"[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 ( [2015] FWCFB 2599) 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."
[9] The Deputy President then considered Mr Urso's claims that he was the victim of drink spiking or "free pouring". In relation to the claim of drink spiking, the Deputy President found that this was speculative and not supported by the evidence.[3] In relation to "free pouring", the Deputy President found:
"[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."
[10] The Deputy President then concluded that Mr Urso's excessive consumption of alcohol in breach of QCCA policy, and his failure to report to work because of that voluntary consumption of alcohol, constituted a valid reason for his dismissal.
[11] It is not necessary to refer to the Deputy President's consideration of all of the s 387(b)-(g) matters. In relation to s 387(h) and the question of harshness generally, the Deputy President said:
"[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:
f. That Mr Urso has lost the job that he held dearly; and
[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."
[12] The Deputy President then concluded that Mr Urso's dismissal was not harsh, unjust or unreasonable and dismissed his application.
Grounds of appeal and the grant of permission to appeal
[13] Mr Urso's grounds of appeal were as follows:
The Fair Work Commission erred in holding directly, or by inference, that:
(a) He was responsible for consuming around 14 standard drinks;
(b) He voluntarily consumed around 14 standard drinks;
(c) He voluntarily or knowingly engaged in excessive drinking or the excessive consumption of alcohol.
6. The Fair Work Commission made the following errors of fact:
(a) That Mr Urso's claim that he could consume five drinks without compromising his ability to operate was unfounded and wrong.
(b) That Mr Urso did not refrain from engaging in the excessive consumption of alcohol.
(c) That Mr Urso was not cautious or responsible in his alcohol consumption.
(d) That it was implausible that Mr Urso did not feel intoxicated at an earlier time and adjust his alcohol intake accordingly.
(e) Mr Urso's conduct constituted a breach of the relevant policies of the Respondent.
[14] At the hearing concerning whether permission to appeal should be granted to enable Mr Urso to pursue these appeal grounds, Mr Urso submitted that:
the fundamental issue was what Mr Urso intended to do by way of consumption of alcoholic drinks, as opposed to what he unintentionally consumed;
the Deputy President failed to properly draw the distinction between what Mr Urso intended to do and the unintended consequences of what he did;
the Deputy President should have, but did not, make a finding as to how Mr Urso came to consume the equivalent of around 14 standard drinks on the basis that he had an "unchallenged innocent explanation" based on the evidence that he only consumed five drinks, and thereby failed to deal with a central element of Mr Urso's case.
[15] The Full Bench concluded that the grant of permission would be in the public interest on two bases. Firstly, while the Full Bench observed that the Deputy President had rejected the claim of drink spiking in the Decision and noted drink spiking was conceded to be unlikely by Mr Urso at the hearing on permission to appeal, it considered that the Deputy President had not dealt with the "free pouring" issue. The Full Bench said:
"[38] While the Deputy President dismissed the drink spiking proposition, she did not make a finding as to whether 'free pouring' happened, stating instead that if it occurred it was implausible that Mr Urso did not feel intoxicated and adjust his intake accordingly.
[39] The 'free pouring' submission was a central element of Mr Urso's case and provides a foundation for an arguable case of appealable error if it was not addressed below. We accept that it is at least arguable that the Deputy President should have made a finding as to how Mr Urso came to consume the equivalent of 14 standard drinks on the basis that there was 'an unchallenged innocent explanation' and should have taken such a finding into account in assessing whether Mr Urso's dismissal was harsh, unjust or unreasonable. This might merit attention by way of appeal."
[16] Secondly, the Full Bench did not consider that the decision in Gregory v Qantas Airways Limited cited by the Deputy President supported the proposition that that a lack of intent to engage in serious misconduct did not excuse him from the consequences of his conduct. In this respect the Full Bench said:
"[36] The appeal grounds allege that the Deputy President erred in holding that Mr Urso's lack of intent to engage in serious misconduct did not excuse him from the consequences of his conduct. The Deputy President determined that the decision in Gregory v Qantas Airways Limited ( [2015] FWCFB 2599) was authority for finding that lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which would otherwise amount to misconduct. We are unable to discern how the decision supports the proposition for which it is cited. In any event the decision was quashed by a Full Court of the Federal Court in Gregory v Qantas Airways Limited ([2016] FCAFC 7).
[37] It may be that the Deputy President intended to refer to the later Full Bench decision of Gregory v Qantas Airways Limited ( [2016] FWCFB 2108) (Qantas No 2). In that decision the Full Bench found where the employee was intoxicated that it was open to the Commissioner to reject the defence of drink spiking given the limited evidence to support it, as such the employee was responsible for his own actions while in a state of intoxication (at [72]).
[40] Further, because of the circumstances in Qantas No 2, where the employee's only explanation for his excessive alcoholic intake was rejected, we are not persuaded that the decision is authority for finding that lack of conscious intent does not exculpate an employee from being held responsible for the consequences of their actions which would otherwise amount to misconduct. But even if Qantas No 2 stood for such a proposition, rigid application of it without regard to the circumstances of a particular case would amount to adopting a decision rule with the result that a discretion would miscarry (Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd [2018] FWCFB 901). It is to be remembered that the reason for the dismissal of the Applicant the subject of the Qantas proceedings concerned conduct which involved inappropriate touching of a female colleague during a taxi journey while the Applicant was intoxicated. There is no misconduct of that kind alleged here. It is at least arguable that appealable error is thereby disclosed."
[17] Mr Urso's submissions in the appeal were primarily directed at challenging the Deputy President's conclusion that there was a valid reason for his dismissal. In this respect Mr Urso submitted:
the evidence showed that Mr Urso only intentionally consumed five alcoholic drinks consisting of two peach martinis and three gin and tonics, and that he was aware from previous experience that he could consume five drinks without difficulty;
the bar keepers at the bar in question engaged in the practice of "free pouring", but Mr Urso was not aware of this at the time;
for this reason it was manifestly unjust and unreasonable for Mr Urso to be held responsible for the consumption of 14 standard drinks;
the Deputy President did not deal with the central element of Mr Urso's case, namely that he only intended to and did consume five drinks, but became intoxicated because of the bar's "free pouring";
in finding that the consumption of alcohol which caused Mr Urso to be unable to perform work the following day was "voluntary", the Deputy President erroneously conflated what Mr Urso intentionally did (consume five glasses of alcohol) with what he unintentionally did (consume 14 standard drinks);
it cannot reasonably be said that someone does something "voluntarily" when they are not aware of it and cannot reasonably be expected to have been aware of what they were actually doing;
further, the Deputy President chose to disbelieve or did not have regard to or did not place sufficient weight on Mr Urso's evidence in this respect, which was directly relevant and uncontested;
there was no explicit finding concerning how Mr Urso came to consume 14 standard drinks in circumstances where there was an unchallenged innocent explanation; and
the Deputy President materially erred in fact in finding that Mr Urso's claim that he could safely consume five glasses of alcohol was unfounded and wrong; that he did not refrain from engaging in excessive consumption of alcohol; that he was not cautious or responsible in his alcohol consumption; that it was implausible that he did not feel intoxicated at an earlier time and adjust his alcohol intake accordingly; and that his conduct constituted a breach of QCCA's relevant policies.
[18] Mr Urso also submitted that, in respect of the s 387 matters apart from s 387(a), the Decision does not set out how those factors were considered or weighed and consequently it was not evident from the reasoning how the outcome in the matter was reached. It was recognised that if Mr Urso was found to have intentionally or recklessly consumed around 14 standard drinks and as a consequence could not attend for work, the other s 387 factors would need to be significant to outweigh the valid reason finding, particularly in respect of identifying appealable error. In light of the weight that should be placed on Mr Urso's passion for flying, his positive performance reviews, his loss of a job which he held dearly, his undertakings regarding his future conduct, his offer to reimburse QCCA for the medical expenses it incurred and his genuine remorse, it was unjust and unreasonable for the Deputy President not to find that they outweighed the valid reason for the dismissal.
[19] QCCA submitted that there was significant evidence contrary to what was said to be the "uncontested" evidence concerning the number of drinks which Mr Urso consumed, including the objective evidence concerning his blood alcohol level, the contemporaneous account of Mr Littmoden, the lack of evidence of drink spiking or "free pouring" on the night in question, and the medical evidence concerning the degree of intoxication reached by Mr Urso. In the circumstances, the Deputy President was correct to place little weight on Mr Urso's explanation as to how he came to consume five drinks and to place greater weight on the objective evidence concerning his alcohol consumption. It was submitted that the critical issue was, as the Deputy President found, that Mr Urso drank a sufficiently large quantity of alcohol to cause him to reach a blood alcohol level of 0.205% some hours after he had stopped drinking, to vomit and collapse, to require hospitalisation, and to be unable to report for duty the next day. In those circumstances there was not, contrary to Mr Urso's submissions, any significant error of fact in the Decision. In respect of the other s 387 matters, it was submitted that the Deputy President expressly considered the mitigating factors relied upon by Mr Urso, and that they were not given the weight that Mr Urso would have desired did not constitute appealable error. The conclusion that, notwithstanding those matters, the dismissal was not unfair was, QCCA submitted, reasonably open to the Deputy President in the exercise of her discretion.
[20] It is apparent that the primary challenge in Mr Urso's appeal to the finding that there was a valid reason for his dismissal is founded upon the factual premise that he only consumed five drinks (that is, glasses, not standard drinks) at the bar on the evening of 22 July 2017. Mr Urso's chain of reasoning is as follows:
(1) His practice was to consume five drinks when he went out, since in his experience this was a reasonable amount which did not interfere with his capacity to attend for and perform his work the following day.
(2) He followed that practice on 22 July 2017, and only consumed five drinks at the bar on 22 July 2017 (consisting of two peach martinis and three gin and tonics).
(3) He had an "innocent explanation" for becoming intoxicated, namely that the bar engaged in a practice of "free pouring" of alcohol of which he was unaware (noting that the drink spiking claim was effectively abandoned in the appeal).
(4) His intoxication and its consequences the next day were accordingly not intended by him and accordingly could not constitute misconduct justifying his dismissal.
(5) His "innocent explanation" and lack of intention constituted the central element of his case, but were not considered properly or at all by the Deputy President.
[21] It is equally apparent that if that factual premise is not correct or at least not established, the primary aspect of Mr Urso's case on appeal necessarily collapses and the matters identified in the PTA decision as justifying the grant of permission to appeal do not properly arise for consideration. We note in this respect that in the PTA decision the Full Bench, consistent with usual practice, proceeded on the basis that the factual premise was correct without engaging in any detailed examination of the evidence as to that matter at that point.
[22] Mr Urso would be entitled to advance his appeal in the way he did if the Deputy President had made a finding that he had only consumed five drinks, or if that fact had not been in dispute between the parties at the hearing before the Deputy President, or if the evidence on the matter was incontrovertible. However none of those things was the case. Firstly, the Deputy President did not make any positive finding that Mr Urso in fact had consumed only five drinks; rather we consider she took Mr Urso's case at its highest without necessarily accepting it when she said in the Decision: "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". Secondly, it certainly cannot be said that it was not in dispute that Mr Urso consumed only five drinks at the bar. As we have earlier set out, QCCA's dismissal letter contended that Mr Urso had been dishonest in maintaining during the investigation process that he had only consumed five drinks and that his drinks may have been spiked, and its written closing submissions in the hearing at first instance dealt with Mr Urso's evidence about the number of drinks consumed in the following way:
"This evidence must be rejected. The Applicant's BAC [blood alcohol level] is objective evidence of how much alcohol he consumed ...
Ultimately it is not possible for there to be certainty as to how many drinks of alcohol the Applicant consumed, other than the amount of alcohol consumed was sufficient for him to reach a BAC of 0.205% at 2.32am on the morning of 23 July 2017 ...
His evidence that he consumed only 5 drinks is inherently implausible, and unbelievable."
[23] Finally, far from being incontrovertible, we consider that the evidence simply does not support the proposition that Mr Urso consumed only five drinks. The only witness to the events at the bar on the evening of 22 July 2017 who gave evidence before the Deputy President was Mr Urso himself, and we agree with the submission of QCCA which we have just quoted that his evidence was inherently implausible and unbelievable. It is not in contest in the appeal, as earlier stated, that Mr Urso consumed approximately 14 standard drinks in the period from about 10.00pm to 11.40pm. That the consumption of such a large amount of alcohol in so short a space of time caused Mr Urso to black out is hardly surprising. The proposition that in those circumstances Mr Urso could have a reliable recollection of what occurred and precisely how many drinks he consumed simply cannot be accepted. Mr Urso's own initial account of the incident to QCCA (contained in an email dated 27 July 2017 which was annexed to Mr Urso's witness statement), which described what Mr Urso remembered about the events once he and Mr Littmoden had moved downstairs, makes plain his lack of any coherent recollection (emphasis added):
"I was dancing on the dance floor with Brent when suddenly the next thing I remember is hearing Security to tell me to get up and leave the venue. At this time I had absolutely no control over my body movements. The next thing I remember after that is waking up in Hospital with Customer Service Manager Marjolein Bakker by my side and having no recollection as to how or why I was there."
[24] Mr Urso's conviction at this time, as the email went on to say, was that he was somehow drugged or had his drinks spiked. However the evidence before the Deputy President made it entirely clear that excessive consumption of alcohol was the sole cause of Mr Urso's condition and, as earlier stated, the Deputy President's finding that the drink spiking claim was unsupported by any evidence and purely speculative was not challenged in the appeal. The "free-pouring" explanation does not appear to have emerged until after the dismissal, but the limited evidence concerning this is not sufficient to explain how Mr Urso reached the state of intoxication that he did. The evidence in this respect was given by Anthony Jackson, an experienced flight attendant employed by Qantas. Mr Jackson said that he and three other flight attendants attended the 230 Fifth Rooftop Bar on 11 January 2018 during a slip period in New York, and he observed and filmed the bartender preparing a peach martini. He said he did not observe any measurement of the alcohol occurring, and he was told the martini had two ounces of rum in it (which is about 2 standard drinks) and some peach liqueur. He also saw that many other mixed drinks were measured as doubles or poured without any measuring. However (as the Deputy President found), this evidence cannot demonstrate what actually occurred on 22 July 2017. Further, even if the evidence is taken as indicative of what might have occurred, it cannot on the most generous view result in five glasses adding up to 14 standard drinks. It also beggars belief that Mr Urso could consume drinks as strong as he suggests they must have been without noticing the amount of alcohol in them.
[25] It was submitted that Mr Urso's version of events was supported by the "evidence" of Mr Littmoden, who accompanied him to the bar on 22 July 2017. However Mr Littmoden did not actually give evidence in the proceedings (despite apparently remaining employed as a Qantas flight attendant), and the Deputy President might have, but did not, draw a Jones v Dunkel[4] inference concerning Mr Urso's failure to call as a witness the only person who could corroborate his own evidence. In any event, Mr Urso relied upon a report concerning the incident made by Mr Littmoden on 3 August 2017. In this report Mr Littmoden set out a timeline of events which included the following (emphasis added):
"1. 2200-Myself and Luke Urso arrive at the '230 Fifth Rooftop Bar' in Central New York City.
Luke and I both had 2 Peach Martinis and 3 Gin and tonics.
[26] This account is somewhat ambiguous. The first paragraph refers to five drinks being consumed, consistent with Mr Urso's account. However it is not clear whether the drinks referred to in the second paragraph were part of the five drinks, or were additional drinks consumed by Mr Urso after they moved downstairs from the rooftop bar. Because Mr Littmoden did not give evidence, this could not be clarified.
[27] The account, depending on how it is read, may also be inconsistent with an earlier account of the incident apparently given by Mr Littmoden. A file note was taken by Emma Collins, a Qantas manager, of a verbal statement made to her by Mr Littmoden about the incident on 27 July 2017 which includes the statement: "2 peach martinis, half a dozen gin & tonics" (underlining added). Ms Collins, who was in charge of the investigation of the incident, gave evidence in the proceedings, and said in her witness statement that she noticed the discrepancy concerning the number of drinks consumed as between Mr Littmoden's verbal statement of 27 July 2017 and a first draft of his written statement dated 31 July 2017. She telephoned him and asked him to include in his written statement the number of drinks he had referred to in his verbal statement, to which he replied: "I did not say that. You must have misheard me. I would never consume that amount" (underlining added). However it is notable that this response appears only to have been concerned with what Mr Littmoden consumed, not what Mr Urso consumed. In summary, the various recorded statements made by Mr Littmoden undermine rather than corroborate Mr Urso's version of events.
[28] It might be added that Mr Urso's own account of events did not remain consistent. In a report about the incident prepared on 31 July 2017 by Ms Bakker, the Customer Service Manager who attended upon Mr Urso when he regained consciousness in hospital during the early morning of 23 July 2017, Ms Bakker said: "Luke was quite out of it but told me he didn't know what had hit him as he 'only' had four drinks" (underlining added).
[29] Accordingly the evidence does not sustain Mr Urso's "innocent explanation" that he only had five drinks and only became intoxicated due to the hitherto unknown practice of "free pouring". The evidence tends to suggest that he had significantly more than five drinks, in which case "free pouring" loses whatever capacity it had to exonerate him. We observe in any event that Mr Urso, who was clearly not a naïf concerning the consumption of alcohol, could not seriously have thought that a drink in the nature of a peach martini would only contain one standard nip of alcohol.
[30] It may be accepted that Mr Urso did not positively intend to become intoxicated to the degree that he could not attend for work the following day when he went to the bar in New York on 22 July 2017. However we do not accept that intention is a necessary element of misconduct which might constitute a valid reason for dismissal for the purpose of s 387(a). Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement. In this case, Mr Urso's responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree which ensured he would be able to attend for work and safely perform his duties the following afternoon. That necessarily required close and continuing attention to the amount of alcohol he was consuming and its effect upon him, since it is notorious that alcohol will operate to progressively diminish personal responsibility and impair a person's sense of judgment. It defies common sense that a person exercising the requisite degree of restraint could put themselves in the position of consuming 14 standard drinks and then passing out in a period of well under two hours. That Mr Urso got himself in that condition was, we consider, the result of recklessness and misjudgement on his part.
[31] Mr Urso's failure to attend for his scheduled flight the following afternoon as a result of excessive alcohol consumption was sufficiently serious to constitute a valid reason for dismissal. We do not consider that there was any error in the Deputy President's conclusion in this respect.
[32] Mr Urso's challenge to the discretionary conclusion that his dismissal, taking into account all the s 387 matters, was not harsh, unjust or unreasonable, was somewhat of an afterthought in his appeal submissions. There was clearly a range of mitigating factors in Mr Urso's case that were relevant under s 387(h), and they were expressly taken into account by the Deputy President in the Decision. That they were not given the weight which Mr Urso would have liked them to be given does not constitute appealable error.[5] While the Deputy President's consideration of these mitigating factors might be said to be somewhat cursory, her conclusion that they did not render the dismissal as being disproportionate to the gravity of the misconduct and therefore harsh was, we consider, reasonably open to her in the exercise of her discretion. A conclusion that Mr Urso's dismissal was harsh taking into account these mitigating factors might have been available had he acknowledged his responsibility for his intoxication and his consequent failure to attend for duty. However, he advanced his case primarily on the basis that what occurred was not his fault, and once that central element of his case was rejected it obviously became difficult for the alternative proposition that he was genuinely remorseful and would ensure that the conduct did not recur in the future to be accepted. We certainly do not consider that the Deputy President's rejection of this alternative case to have been unjust or unreasonable such as to justify appellate intervention.
S. Woodbury, solicitor, on behalf of QF Cabin Crew Australia Pty Limited t/a QCCA
[5] See Restaurant and Catering Association of Victoria [2014] FWCFB 1996, 243 IR 132 at [57]- [58]
Printed by authority of the Commonwealth Government Printer
Luke Urso
QF Cabin Crew Australia Pty Limited t/a QCCA [2019] FWCFB 1322