21 December 2018

Are you really “off duty”?

This article was written by Caitlin Babington.

The ability of an employer to dismiss employees for behaviour outside of working hours has once again been considered by a Full Bench of the Fair Work Commission.[1]

Key impacts

  • Employers who work in safety-critical industries have the right to dismiss workers whose out of hours conduct impairs the safe performance of their duties.
  • Whether a lack of conscious intent exculpates an employee from being held responsible for the consequences of their actions which would otherwise amount to misconduct is yet to be determined.
  • Employers should remind employees of their responsibilities when “off-duty”.


Mr Luke Urso was employed by Qantas subsidiary, QF Cabin Crew Australia Pty Ltd (Qantas), as a full time international flight attendant. While in New York on a layover, Mr Urso and another crew member visited a bar. He was later found to have collapsed in the toilets and taken to hospital by ambulance. Mr Urso was scheduled to work the next day, but called in sick.

On 2 November 2017, he was dismissed for breaching Qantas’ policies and paid in lieu of notice, after an investigation into his conduct were found to be substantiated. 

At first instance, the Commission upheld Qantas’ decision to dismiss Mr Urso, confirming that employers have the right, in safety-critical industries, to dismiss workers whose out-of-hours conduct impairs the safe performance of their duties.

Mr Urso appealed, claiming that the Commission made significant errors of fact, including:

  • finding that he was responsible for consuming around 14 standard drinks;
  • characterising the conduct as serious misconduct constituting a valid reason for dismissal;
  • holding that Mr Urso’s lack of intent to engage in serious misconduct did not excuse him for the consequences of his conduct; and
  • disregarding the evidence of “free pouring”.


The Full Bench granted permission to appeal holding that the “free pouring” submission was a central element of Mr Urso’s claim and that it was not addressed in the first instance, providing a foundation for an appealable error. The Full Bench also found that another case regarding an employee’s misconduct on a layover[2] was inappropriately applied in the first instance due to different factual scenarios. The Full Bench considered that a determination of the issue was in the public interest and would therefore reconvene to hear the substantive appeal.

[1] Gregory v Qantas Airways Limited [2016] FWCFB 2108

[2]Urso v QF Cabin Crew Australia Pty Limited [2018] FWCFB 6370

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