The case of the airline pilot and the young female flight attendant

Serious misconduct: the test of justification clarified.

A recent decision of the Court of Appeal provides employers with valuable guidance as to the adequacy and even-handedness of investigations into allegations of serious misconduct. 

The employee, Mr H, had been employed by the airline (“A Ltd”), for eight and a half years as a pilot.  The complainant, Ms C, was a young flight attendant in her first month of employment with the airline.  Both Mr H and Ms C were on a tour of duty in the Pacific. They were part of a crew of six. The crew had a two-night layover before returning to New Zealand.    The critical incident happened on the second day of the layover when Mr H went into Ms C’s room, sat on her bed and touched her thigh.  According to Mr H, he had gone into Ms C’s room to inquire as to her welfare, then, while repositioning himself on Ms C’s bed, he accidentally brushed against the outside of her leg.  A key issue was whether the touching was accidental.

Ms C made a complaint to A Ltd which began an employment investigation. The employer carried out its investigation by interviewing Mr H, Ms C and two other crew members.  The outcome of the investigation and disciplinary process was that A Ltd considered that Mr H’s conduct contravened the airline’s sexual harassment policy and amounted to serious misconduct.  A Ltd summarily terminated Mr H’s employment.  

Mr H challenged the decision of A Ltd to terminate his employment. The Employment Relations Authority held that the decision to dismiss Mr H was justifiable and rejected his personal grievance claim.  Mr H successfully challenged this decision in the Employment Court. That court identified what it described as a number of flaws in the employer’s investigation, for example that A Ltd’s representative tested Mr H’s account of events more vigorously than the evidence of the complainant or other witnesses in the same manner.  Because the procedural defects could not be regarded as minor flaws, the court’s view was that A Ltd lacked sufficient evidence on which to base its decision to terminate Mr H’s employment.

On appeal, the Court of Appeal reversed the decision of the Employment Court and decided that that court had erred in its application of the test for justification. The court noted that the test was amended by Parliament in 2010, considered relevant case law, and made the following observations:

  1. The revised test  of justification under s 103A recognises that  there is a range of fair and reasonable responses that could be made by an employer in any situation;
  2. The test is no longer measured by a single standard based on what a notional fair and reasonable employer would have done;
  3. Instead, the requirement is based on objective fairness and reasonableness in all of the circumstances; and
  4. The correct approach is to assess the employer’s actions with regard to what a fair and reasonable employer could have done in those circumstances.

In this case, the court considered that the relevant context was that ”a 51-year old man had entered the hotel of a 19-year-old novice flight attendant, whom he had never met prior to the trip, and sat on her bed under a blanket.”  The court said that the circumstances were “all important” and the employer was accordingly entitled to structure its approach around the “inherent implausibility” of “accidental touching” and “an innocent purpose.”

The law in this area should now be seen as being clarified. As the Employment Court has already recognised, the change in the wording of the test from “would” to “could” was “neither ineffectual nor insignificant.”  There is now greater certainty that the extent of investigation required is affected by the circumstances. This pragmatic and commercially realistic decision can only be of benefit to employers seeking to address serious misconduct.

Carolyn Heaton is a partner and John Goddard an associate in Morrison Kent’s dispute resolution team specialising in employment law. This article is not intended to be legal advice and should not be relied on for that purpose.

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