If an employee conducted himself the way this one is alleged to have behaved, even if off duty and flying on a "real" ticket, I think any employer would have the right to take disciplinary action.
I disagree with Phx that conduct "off duty" is not relevant to the job. If someone is convicted of theft and occupies a position of trust which requires honesty, then clearly the company would be entitled to dismiss the employee. (Example: Bank Teller convicted of shoplifting).
In this case, an employee disregarded a basic rule and failed to carry out the lawful instructions of the flight attendant, by using his mobile phone. For a regular passenger, this would normally result in the full monty Delta skynazi response, with a landing party of fully armed, fat police officers boarding the plane, delighted at the opportunity to break the monotony of their beat.
I am sure, these actions would be sufficient to dismiss, even off duty. If an airline employee is able to disregard rules which are claimed to be safety related, this would indicate that they are not fit to undertake their duties.
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