Hostess asked to be spanked, court told

BY CLIO FRANCIS

A teen flight attendant asked a pilot to spank her bottom hours before she allegedly had unwanted sex with another pilot on an overnight stopover, a court was told.

The married pilot, called "C", who slept with the flight attendant was fired from Air Nelson in June last year for serious misconduct, including sexual harassment. He lost a case of unjustified dismissal and has appealed to the Employment Court.

The allegations stem from May 20, 2008, when C, another pilot and the air hostess had to stay overnight in a Napier hotel after bad weather halted their flight. Yesterday, the Employment Court in Auckland heard closing submissions between the airline and C before Judge Mark Perkins.

C's lawyer, John Haigh QC, told the court Air Nelson's investigation into the incident had been marked by "glaring omissions and failures".

His actions that night had not constituted serious misconduct and did not justify the termination of his employment, Mr Haigh said.

"The investigation was not conducted in a procedurally fair manner and included a strong element of pre-determination."

The man was a pilot of high repute and had been a dedicated and exemplary employee, Mr Haigh said.

"What he did was not a hanging offence. It was a one-off incident which would never be repeated."

Air Nelson's "trigger point" for dismissing C had been their finding that the sex between him and the flight attendant had not been consensual. C denied this and said the flight attendant had left his bedroom with "a smile on her face".

Police interviewed all three crew members after the woman made a rape complaint but they decided there was insufficient evidence to proceed. Mr Haigh read aloud evidence given by the co-pilot, who said talk between the three had included "suggestive and flirty comments".

The three had talked about the shaving and waxing of body hair and the benefits of casual sex, the court heard.

"A lot of discussion took place and we all participated equally," the other pilot said. Later, the flight attendant had suggested the other pilot come and sit on the bed with her and the conversation had turned to spanking.

The flight attendant asked the other pilot to slap her on the bottom and said she had multiple piercings, including a nipple piercing, the other pilot said.

He said the flight attendant had gone to pull her bra down and the movement had exposed her belly button piercing.

The court heard he left to go to the bathroom and when he came back, the air hostess was under the covers in C's bed and gave him a "suggestive smile".

"I thought it was time I left," the other pilot said.

C accepted that his actions on the night in question fell short of what they should have been, Mr Haigh said.

"I do regret some of my actions and also the pain and suffering. Unfortunately, I cannot change what has already been done. I have been just as honest and open with the company as with the police as to my actions, no matter how graphic or embarrassing it was," C said.

Air Nelson's lawyer, Christopher Toogood, QC, said there had been an imbalance of power between C and the flight attendant.

"However much emphasis [the pilot] and his union may wish to put on [the flight attendant's] adulthood and her previous experience with alcohol and in sexual matters, she was still a teenager less than half [the pilot's] age and highly susceptible to following his lead.

"This was not two adults dealing with each other on an equal footing."

The pilot had not acknowledged he had acted in a manner not befitting a pilot until late in the court process, the court was told.

"At no stage during his employer's investigation into this conduct did the pilot acknowledge that he had failed to act responsibly that evening, nor did he acknowledge that he had been guilty of errors of judgment.

"He merely expressed regret that he had had intercourse with the flight attendant, no doubt chastened by having to admit the fact to his wife."

Even if the court found the pilot had been wrongfully dismissed, it would be impractical for him to reinstated at Air Nelson, Mr Toogood said. The company had lost "trust and confidence" in him and his re-introduction into the workplace would be "divisive".

The pilot is seeking reinstatement to his position, compensation for lost pay and an award for humiliation and costs.

Judge Perkins has reserved his decision.

- © Fairfax NZ News