| Summary |
INJUNCTION – Applicant sought interim reinstatement – Applicant, flight attendant (“FA”) and first officer (“FO”) on delayed flight so stayed in hotel overnight – Applicant, FA and FO consumed alcohol in applicant’s room – Next day, FA laid complaint with Police about applicant – FA alleged woke up in applicant’s bed missing clothing and felt had had sex but could not remember – Applicant and FO advised respondent exercising right to silence until Police investigation concluded – Respondent suspended applicant and FO on full pay until able to obtain further information from all involved - Several months later, Police concluded insufficient evidence to charge applicant with criminal offence – Applicant, FA and FO took part in respondent’s investigation – Applicant argued sexual activity initiated by FA – FA claimed would not have willingly participated - Respondent concluded purchasing and consumption of alcohol, considering quantity and next day’s duties, showed serious lack of judgement; concluded irresponsible and unacceptable for captain and as most senior employee present; found conduct towards FA amounted to sexual harassment; found more likely that sexual activity occurred earlier than applicant claimed, meaning FA even more influenced by alcohol; found actions below standard of professional conduct and leadership expected; found actions compromised welfare of crew and risked safety of airline and reputation - Applicant and union given one month to comment on conclusion and proposal of dismissal – Applicant dismissed for serious misconduct – Applicant claimed unjustifiably disadvantaged and dismissed – Regarding sexual harassment finding, Authority found arguable case that evidence FA relied on not sufficiently compelling to support what applicant submitted was effectively finding had raped FA – Found respondent not required to conduct trial, but the graver the alleged misconduct, the less room for doubt there should be in the proof relied upon - Found no arguable case that respondent’s finding of sexual harassment, if reasonably reached in circumstances, would not by itself justify dismissal – However, found if sexual harassment justification could not be upheld, serious question would arise of whether dismissal for poor judgement in buying and drinking alcohol in late evening, and consensual sex, was justified – In that situation, found applicant had arguable case that poor judgement or lack of common sense did not go to heart of employment contract to extent as to destroy or undermine trust and confidence – Considering balance of convenience, found relatively short time until Authority’s substantive investigation, compared to one year already passed since suspension – Applicant accepted not reasonable or practicable to return to flying duties as interim measure – Authority found reinstatement would be to payroll only – Therefore applicant would not lose opportunity to practice profession or retain necessary licences – Found failure to resume payment of wages could be adequately compensated by remedy of lost wages, if applicant successful in grievance – Found was adequate alternative remedy to interim reinstatement – Authority dismissed applicant’s argument that restoring applicant’s reputation was another objective to be achieved by interim reinstatement - Found potential serious connotations in findings about applicant and FA’s conduct, so not just or effective to attempt to temporarily reinstate applicant – Found overall justice to leave existing state for relatively short time until Authority’s full investigation – Application for interim reinstatement declined - Captain |