Alcohol testing in the workplace

This is an extract from a very interesting unfair dismissal decision of the Fair Work Commission about alcohol testing and the workplace.

“Dismissal harsh, unjust or unreasonable

Valid Reason

[76] Both parties cited the Full Bench decision of Sydney Trains v Gary Hilder 11 as applicable to the consideration required in the matter.

[77] The Applicant submitted that it is not disputed that he received a positive reading for the presence of alcohol when tested on 24 March 2022. However, there are genuine concerns held about the accuracy of the test being that there were issues identified with the testing equipment on the morning of the test.

[78] The Applicant cited the decision of Deputy President Asbury in Smith v Bank of Queensland Ltd citing Vice President Hatcher’s decision in Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning where it was found as follows:

“[125] Vice President Hatcher went on to observe that it is well established that a dismissal for misconduct may be found to be harsh on the basis that the sanction of dismissal is a disproportionate penalty to the gravity of the misconduct, and that the issue of proportionality is usually considered having regard to all relevant circumstances of the dismissed employee and his or her conduct. His Honour also noted that there is divergence in the authorities in relation to whether the gravity of the misconduct is considered separately from the factors subjective to the particular employee with the former consideration arising under s. 387(a) and the latter under s. 387(h). His Honour observed that proportionality of dismissal as discussed by Moore J in Edwards v Giudice, was not concerned with proportionality of dismissal in the sense where the gravity of the misconduct is weighed against a range of other potentially mitigating factors. Rather it was concerned with whether the conduct in question, considered in isolation, was intrinsically capable of constituting a valid reason for dismissal if it only involved a minor misdemeanour.

[126] I do not understand that there is a rule that the gravity of the misconduct must be considered under s. 387(a) devoid of any mitigating factors a dismissed employee may raise. While the gravity of the conduct must be considered and assessed, in my view, there are some mitigating factors which may also go directly to the validity of a reason for dismissal by mitigating the seriousness of the conduct for which a person was dismissed. Examples of some of these factors may be lack of training or the dismissed employee being placed under undue pressure by some failure on the part of the employer, which contributed to the conduct for which the employee was dismissed. Those matters may go to the reasonableness of the dismissal on the basis that they mitigate the gravity of the employee’s conduct. There are other mitigating factors which relate to personal circumstances of the dismissed employee and which may render the dismissal harsh, notwithstanding that the gravity of the employee’s conduct justifies dismissal. The first category of mitigating factors falls for consideration under s. 387(a) of the Act and the second category under s. 387(h).”

[79] The Applicant submitted that in the circumstances, a mere presence of alcohol in one’s body does not denote a sound, defensible and well-founded reason. For the sake of community safety, the Queensland Government permits people to operate motor vehicles safely and lawfully with a BAC level up to 0.05. Beyond this limit it is considered an offence to operate a motor vehicle.

[80] The Applicant submitted if we as a community are willing to permit drivers on our public roads to operate motor vehicles within this limit it cannot be entertained that a singular instance of a worker signing onto work, but prior to carrying out any workings, would be a sound, defensible, and well-founded reason for termination.

[81] The Applicant submitted that further, it cannot be sustained that simply because the alleged misconduct, the positive test result for alcohol at sign-on, occurred that it warranted termination.

[82] The Applicant submitted consequently, Mr Purves presenting to work with a BAC of 0.025 cannot be held to be a valid reason for termination in the circumstances as the effect of the dismissal was severely disproportionate to the gravity of the alleged misconduct.

[83] The Applicant’s submissions have pressed a case that a drinking culture exists within the Respondent and the Applicant’s work group. I have not found this argument to be persuasive in terms of the outcome of this matter. The evidence was general in nature and lacked a level of specificity to be of assistance.

[84] The Applicant has also criticised what it saw as a failure of the Respondent to educate its workforce on safe drinking habits. I have not been satisfied that the evidence establishes the existence of a drinking culture. I am also not satisfied that the Respondent not providing an education or training program on this subject is of particular assistance to the Applicant.

[85] The Respondent submitted that the Respondent’s AOD Policy plainly requires employees to be at the prescribed limit of 0.000% BAC “when signing on for work, in the workplace, rostered on duty, on call, or when formally representing Queensland Rail at any event or workplace.” In any event, the Applicant’s own evidence discloses that he attended the Depot (being his workplace) and in doing so had no concerns about his fitness for work or that he was still under the influence of alcohol. It can be taken from the Applicant’s evidence that, had the Respondent not undertaken random AOD testing on 24 March 2022 and excluded the Applicant from work as a result of his positive alcohol result, the Applicant would have attended the Depot and proceeded to perform his duties, including safety critical work which could have life threatening consequences if undertaken incorrectly. The Respondent submitted that there is no evidence before the Commission of mitigating factors that go to the validity of the reason to dismiss the Applicant. Consideration and reliance on Queensland Road rules, in a matter occurring in the context of the inherently dangerous rail industry, would be misplaced.

[86] The Applicant submitted if the Commission is satisfied that there is a valid reason for the dismissal, this does not result in a fait accompli that the terminated worker has not been dismissed in an unjust, unreasonable or harsh manner.

[87] The Respondent submitted that the question is whether the Applicant’s conduct provided a valid reason for dismissal. The Respondent submits that, on an objective assessment of the relevant facts, the Commission will be satisfied that the reason for the Applicant’s dismissal was valid, being sound, defensible and well-founded, and not a capricious, fanciful, spiteful or prejudiced.

[88] The Respondent submitted that the Applicant’s employment was terminated because, on 24 March 2022, he provided a positive test result for alcohol during a random alcohol and other drugs test conducted at the Respondent’s Roma Depot, being a breach of section 2.1 of the AOD Policy. The Applicant has admitted that he provided a positive test, breaching the AOD Policy. This is not in dispute.

[89] The Respondent submitted they gave the Applicant a lawful and reasonable direction, by way of its AOD Policy, that he must be under the prescribed limit for alcohol and other drugs when signing on for work, in the workplace, rostered on duty, on call, or when formally representing Queensland Rail at any event or workplace. The Applicant was aware of, but failed to comply with, this direction and the AOD Policy, which provides a valid reason for dismissal. The Respondent’s operations are safety critical. The Applicant held a role within the Respondent’s operations that performed safety critical work and he was a designated rail safety worker. The purpose of the Respondent’s AOD Policy is to ensure employees do not perform safety critical work with the presence of drugs or alcohol in their system.

[90] In the context of rail operations, The Respondent submitted that it has been accepted that a breach of a critical safety policy serves as a valid reason for dismissal. The Respondent cited Singh v Sydney Trains, where Deputy President Sams explained: 12

“In my view, the conduct in question need not necessarily be wilful, deliberate or reckless to constitute a valid reason for dismissal. Conduct which is negligent, accidental, inadvertent or careless, particularly in the rail industry, can have disastrous, life threatening consequences. Adherence to safe working policies and practices, particularly where persons are specifically trained to be aware of ever present dangers, is a cardinal principle for any workplace, but even more so in the rail industry where the risk to the safety of employees and the public is obviously so much more acute. It involves fast moving trains and potentially dangerous infrastructure. Employees are commonly working in high risk track environments as a daily feature of the working environment. Such conduct need not be repeated behaviour, but may involve a single instance of conduct which threatens the safety of employees or others…”.

The importance of health and safety systems and the need to enforce compliance with them is well established at law. In McLean v Tedman (1984) 155 CLR 30644 at 313 Mason, Wilson, Brennan and Dawson JJ stated: “The employer’s obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system…. in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.”

[91] The Respondent submitted that in circumstances involving breaches of safety procedures the Commission’s weighing exercise needs to consider an employer’s obligations to uphold safety standards in the workplace and comply with its obligations at law. Safety is Queensland Rail’s number one priority. The consequences of a collision between extremely heavy rollingstock and either a person or other property is self-evident, even at low speed and it is for this reason that specialised safety legislation applies to rail operations. Queensland Rail’s AOD Policy prescribed limit of 0.000% BAC is not just internal to its operations and required to protect worker safety but is legislatively required under the RSNL.

[92] The Respondent refutes any assertion there was no valid reason to dismiss the Applicant.

[93] The Respondent submitted that importantly, Smith v Bank of Queensland [2021] FWC 4, relied on by the Applicant, can be distinguished here in respect to mitigating factors which go directly to the seriousness of the conduct. In Smith, Her Honour stated:

“…there are some mitigating factors which may also go directly to the validity of a reason for dismissal by mitigating the seriousness of the conduct for which a person was dismissed. Examples of some of these factors may be lack of training or the dismissed employee being placed under undue pressure by some failure on the part of the employer, which contributed to the conduct for which the employee was dismissed. Those matters may go to the reasonableness of the dismissal on the basis that they mitigate the gravity of the employee’s conduct.”

[94] The Respondent submitted that in Smith, Her Honour went on to make a finding that the employee’s lack of training, undue pressure on the employee due to impending holiday leave and factual errors relied on by the employer in relation to the investigation and business process, served as mitigations to the gravity of the conduct and therefore eroded the validity of the reason for dismissal. The Respondent submitted that none of the circumstances in Smith described above existed in the present circumstances, and as such, the present circumstances can be distinguished from Smith. In particular, in relation to the factors which the Applicant contends make the Applicant’s dismissal disproportionate to the gravity of the conduct:

(a) the Applicant was fully trained in the requirements of the Respondent’s AOD Policy and in particular the AOD Requirement to present to duty without the presence of alcohol in the Applicant’s system. The Applicant attended numerous refresher trainings on this AOD Requirement and the Applicant’s own evidence is he was well aware of the requirement;

(b) the Applicant’s own evidence is that he received a positive reading for the presence of alcohol when tested on 24 March 2022; and

(c) there were no errors in the testing or investigation process.

[95] The Respondent submitted that in this case, the Applicant’s conduct, in presenting to duty with the presence of alcohol in the Applicant’s system, breached the Respondent’s AOD Policy. The Applicant was trained in the AOD requirement under that policy and was well aware of that requirement at the time of the admitted conduct. The Applicant’s admitted conduct provided a valid reason for dismissal in all the circumstances.

…………………………………………………………………………..

CONSIDERATION

[130] In considering whether it is satisfied that a dismissal is harsh, unjust or unreasonable, the Commission must take into account the considerations under section 387 of the Act.

(a) Whether there was a valid reason for dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees);

[131] A valid reason was described in Selvachandran v Petron Plastics Pty Ltd 14 as one which is “…sound defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based on the operational requirements of the employer’s business.”

[132] The Full Bench in the decision in Sydney Trains v Gary Hilder set out the following principles in relation to consideration of section 387:

“[26] The principles applicable to the consideration required under s 387(a) are well established, but they require reiteration here:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.”

[133] I have considered the Applicant’s submission that the testing process was unreliable. I have weighed the competing evidence on this point and am satisfied on balance that the evidence does not favour a conclusion that the test results recorded by the Applicant on the morning of 24 March 2022 were unreliable, and I am satisfied on the balance of probability that the results were accurate.

[134] There was no dispute as to the occurrence of the conduct which was the reason the Respondent dismissed the Applicant. It is not in dispute that the Applicant’s conduct constituted a breach of the Policy. The Applicant accepted that he was aware of the Policy although his evidence was that he was not entirely clear on the ramifications of breaching the policy.

[135] I accept the Respondent’s submission that considering the nature of the industry in which the Respondent operates, including the types of hazards and the potentially extreme consequences of accidents, and considering the regulatory impost on the Respondent and the Applicant’s particular employment, the Respondent’s alcohol and other drug standard is lawful and reasonable in all the circumstances. The Applicant did not contest that his conduct was in breach of the Respondent’s policy.

[136] I am satisfied for the purposes of the RSNL the Applicant would have fallen within the meaning of attempting to carry out rail safety work by reporting for work on the morning of 24 March 2022. It was not in contest that the Applicant had signed on for duty at the time he undertook the test. It is the case that section 128 of the RSNL prescribes an offence for carrying out or attempting to carry out rail safety work while alcohol or drugs are present in a worker’s system.

[137] I am satisfied that the Applicant’s breach of the Policy was a matter of sufficient gravity

to constitute a sound, defensible, well-founded and therefore valid reason for dismissal.

(b) Whether the person was notified of the reason

[138] The Respondent submitted that on Friday 24 June 2022, the Applicant was notified of the reason for the dismissal by way of the letter from Mr Benstead dated 20 June 2022.

[139] The Applicant agreed that he was notified of the reason for dismissal.

(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[140] The Respondent submitted that the Applicant was given an opportunity to respond to the reason for his dismissal related to his conduct, both during the investigation process and subsequent show cause process. The Applicant provided his response during the investigation interview on 29 March 2022 and in response to the show cause letter submitted by his RTBU Union Representative on 12 May 2022.

[141] The Applicant agreed that he was given an opportunity to respond to the allegation of the alleged misconduct.

(d) Any unreasonable refusal by the employer to allow the person to have a support person present to assist in any discussions relating to dismissal

[142] The Respondent submitted that the Applicant was not denied the opportunity to be afforded a support person, both during the investigation process and subsequent discipline process.

[143] The Applicant agreed that he was not denied access by Queensland Rail to a support person during the investigation and disciplinary process.

(e) Was the Applicant warned about unsatisfactory performance before dismissal

[144] The Respondent submitted that the Applicant’s dismissal did not relate to unsatisfactory performance by the Applicant, and it is therefore not relevant for the purpose of section 387(e) of the FW Act whether he was warned for unsatisfactory performance prior to his dismissal.

[145] The Applicant submitted that Mr Purves over his 40 years of service was never formally warned for any form of misconduct or unsatisfactory behaviour.

[146] As the dismissal did not relate to section 387(e) this is a neutral matter.

(f) The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal and (g) The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[147] The Respondent submitted Queensland Rail concedes that employs circa 7500 employees. Queensland Rail submitted they have a dedicated employee relations and industrial relations team, and therefore, the matters raised in sections 387(f) and (g) therefore not relevant. The Applicant agreed.

(h) Any other matters that the FWC considers relevant

[148] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

[149] The Applicant claimed that there were a range of ‘other matters’ making the dismissal harsh. These are outline above but included:

(a) his age;

(b) he has limited level of literacy and formal qualifications;

(c) he has not been adequately trained in the AOD Policy the Applicant breached;

(d) he is reliant on the housing provided by the Respondent;

(e) has a family whose financial position has been negatively affected by his dismissal;

(f) he has been banned from finding employment in his profession by the Respondent;

(g) has never been formally disciplined by the Respondent; and

(h) has experienced a disparity in discipline outcomes.

[150] I am satisfied that it is unrealistic to expect that given all of the facts, the Applicant is likely to be able to retrain in order to obtain other commensurate employment. I am also inclined to the view that the fact of Queensland Rail’s dominant position in control of rail infrastructure in Queensland, and the potential for it to hinder the Applicant’s ability to gain other employment with another employer on rail infrastructure contracting to the Respondent, that it may make it difficult for the Applicant to gain other employment within the area of his skills and experience.

[151] I am satisfied the termination of the Applicant has had a very significant adverse impact on both him and his family. This includes the requirement for Mr Purves’ son, an apprentice, being required to return to the family home to meet everyday expenses, and the Applicant’s partner having to work additional overtime. The decision to terminate also causes the Applicant and his family to be faced with the loss of their current residence.

[152] Queensland Rail was made aware of the likely impact of the Applicant’s dismissal on him and his family before it decided to opt to dismiss him, rather than deciding upon another available disciplinary option.

[153] It is also clear from the evidence that the Applicant at all times acknowledged that he understood what the policy was. He has not attempted to plead ignorance and has acknowledged that he failed to comply with the policy, although it is apparent, he did not do so deliberately. I have accepted that he held an honest belief that he would have had a zero BAC reading when he reported for work on 24 March 2022.

[154] The unchallenged evidence of Ms Blake was that the Applicant followed his normal routine of having alcoholic drinks in the early evening and going to bed at around 8.30pm. The Applicant’s oral evidence was consistent with his earlier written statement about having stuck to this routine.

[155] His evidence was also consistent about the amount of alcohol he consumed. He made a concession that his consumption may have been just over half the bottle. The effect of his evidence was that if it was more than half the bottle, it would only have been by a marginal amount. He said this was the case as he looked at the 700ml bottle after coming home on the day he was tested. Having observed the Applicant give his evidence, I am inclined to accept that he was being truthful about this matter.

[156] The evidence of Dr O’Toole was to the effect that if the Applicant had consumed approximately half of the 700ml bottle and stopped drinking at the time he said he did then it would have been expected that he should have returned a zero-blood alcohol reading by approximately 4am.

[157] Whatever may be the reason for the return of the reading of 0.037 at just before 7am the following day, I accept that the Applicant was being truthful in his evidence about his conduct the previous evening. As that is the case, I am not satisfied that the Applicant was deliberately negligent. He acted in a manner that was consistent with a practice that he had adopted over many years, and even on the evidence of the Respondent’s expert evidence, he should have expected to return a zero-blood alcohol reading at the time he reported to work the following day, given I have accepted his evidence on the amount of alcohol consumed and that he went to bed at approximately 8.30pm the previous evening.

[158] The Applicant said in his witness statement that he had never failed any of the numerous drug and alcohol tests he had undertaken at work before, and included with his evidence records of interview prior to termination that said he had been tested before on numerous occasions and not failed a test despite following the same routine as he did on the evening of 23 March 2022. The Applicant’s claims about having never previously failed a test were put to Mr Benstead during cross examination and he had no basis to contradict the claim. Mr Anderson gave evidence for the Respondent that the Applicant had been tested on “multiple occasions” which supports the Applicant’s evidence in this regard.

[159] Dr O’Toole accepted that he had no specific knowledge about the Applicant’s physical or medical circumstances and how they may have potentially had an impact on his rate of elimination of alcohol at the relevant time. A range of variables were put to Dr O’Toole during his being cross examined that could potentially influence the Applicant’s rate of elimination of alcohol. The Applicant was a direct and straightforward witness who did not dissemble. I have concluded that it is both plausible and open on the evidence to conclude that the Applicant’s actions on the evening of 23 March 2022 were consistent with how he had acted consistently over many years, however on this particular occasion he recorded a low alcohol reading the following morning, when on previous occasions he had recorded a zero reading.

[160] As I have concluded that the Applicant followed a very similar pattern of behaviour on the evening of 23 March 2022 to the pattern of behaviour he had consistently followed when he had subsequently recorded a zero BAC reading, this is a factor that points to the termination of his employment being harsh in this instance.

[161] I have carefully considered the evidence of Mr Benstead, including his evidence concerning the heavy legal obligations of the Respondent to provide a safe workplace, including to comply with the RSNL and state workplace health and safety legislation. Mr Benstead has described taking into account all of the particular circumstances of the Applicant. He also expressed concern about the message it would send it others in the workplace, if he were to impose a lower penalty on the Applicant, than the penalty that has been imposed on others who have breached the Respondent’s policy.

[162] Having considered Mr Benstead’s evidence, it is hard to conceive of circumstances where Mr Benstead would not arrive at a conclusion that termination is the appropriate disciplinary outcome in any circumstance where the relevant policy is breached. The policy itself does not make the imposition of termination the only disciplinary option available in all cases. The policy does leave room for exceptions. If there was to be a case for an exception, it would seem the Applicant’s case is such a case.

[163] Whilst it is indisputable that the Applicant’s BAC reading exceeded the zero requirement set out in the RSNL and in the Respondent’s policy, the fact of the figure recorded being lower than the figure deemed appropriate to allow a member of the public to legally drive, is a relevant consideration in weighing the gravity of the misconduct in the context of the final determination of the appropriate disciplinary action in all of the particular circumstances surrounding the Applicant’s case.

[164] I do not accept the submission of the Respondent, to the extent that it was suggested that a failure to terminate the Applicant would amount to a failure to enforce its own policy, and a failure to enforce the law. As already stated, neither the RSNL or the policy make it a mandatory requirement for the Respondent to terminate any employee who fails to comply with the requirements in either or both the RSNL and the policy. It is open to the Respondent to determine an appropriate disciplinary response subject to the particular facts in each case.

[165] Mr Benstead gave evidence to the effect that the outcome in the Applicant’s case was consistent with the outcome in other similar matters, whereas the Applicant has submitted that there have been other cases where employees have breached the policy and they have not been terminated. There has been insufficient evidence led by either party concerning the specific circumstances in other cases that are said to be similar to support either claim, and on that basis I do not intend to afford these submissions from either party on this point any significant weight.

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE

[166] The Full Bench majority in B, C and D v Australian Postal Corporation T/A Australia Post said as follows:

“[60] It needs to be stated clearly that a determination of whether a given dismissal for the sending or receipt and storage of pornography is disproportionate to the misconduct such as to be ‘harsh, unjust or unreasonable’ involves a consideration of all of the circumstances and a weighing of the gravity of the misconduct against the various factors that mitigate against dismissal as a proportionate (fair) response to the misconduct, including, of course, factors subjective to the particular employee (such as age, length of service, service record etc) to determine whether those matters in combination rendered dismissal a disproportionate penalty for the misconduct such that it ought properly be characterised as ‘harsh’ notwithstanding the existence of a ‘valid reason’.”

[167] It is apparent the Commission must engage in a weighing exercise. I am satisfied having weighed each of the considerations under section 387 in this case, that the Respondent did have a valid reason for dismissal, and procedurally the steps it followed were fair.

[168] However, given the particular circumstances concerning the Applicant, including his age, his ability to obtain other employment, his unblemished work record over approximately 40 years, the financial and personal impact on him and his family, and the fact that I accept that he genuinely believed he would have a zero BAC at the time he reported for work on the morning of 24 March 2022, which was not an unreasonable belief given his previously recording a zero reading on numerous previous occasions when tested, added to the evidence of Dr O’Toole that the claimed pattern of behaviour which I accepted he followed would have been expected to produce a zero result, that the decision to terminate the Applicant was not appropriate in all of the circumstances.

[169] I have no doubt that Mr Benstead would have considered the mitigating circumstances including the Applicant’s age, length of service, and the impact of a dismissal on him, as well as his flawless employment record over 40 years. However, having weighed all of these matters the Respondent should have concluded that termination of the Applicant’s employment, in all or the circumstances was too harsh. The circumstances taken together result in a conclusion that the dismissal was disproportionate to the gravity of the misconduct in the circumstances of this case.

[170] As I have concluded the dismissal was harsh, I am satisfied it was unfair.

REMEDY

[171] Mr Gavin Anderson gave evidence on behalf of the Respondent that at the time of the hearing the Applicant’s position continues to be vacant. The Respondent submits that reinstatement of the Applicant would be inappropriate in the circumstances, as the Respondent has lost trust and confidence in the Applicant.

[172] The Respondent relies in this regard on the Applicant’s evidence concerning his drinking pattern over an extensive period of time, in the context of him having returned a positive BAC reading on 24 March 2022, and a concern he may have been over the zero policy on other occasions based on the evidence of Dr O’Toole.

[173] The Respondent referred to the critical nature of safety in in his industry where minor errors can have disastrous outcomes. The Respondent also expressed a concern about the message that would be sent to others if the Applicant were to be reinstated, and that it would undermine its AOD policy. The Respondent submits that all trust has been severed.

[174] The Respondent submitted that while the Applicant has not sought compensation, for completeness, if the Commission determines that reinstatement is not appropriate, given the seriousness of the Applicant’s conduct, the Applicant should not be awarded compensation, or any award of compensation should be no more than a nominal amount.

[175] Reinstatement is the primary remedy under the Act. The Respondent’s case that it has lost trust and confidence in the Applicant as a basis to reject the claim for reinstatement must be assessed with consideration given to the “rationality of any attitude taken by a party” as stated in the decision in Perkins v Grace Worldwide (Aust) Pty Ltd. The Applicant has nearly 40 years of unblemished service with the Respondent. The evidence is he has been BAC tested on numerous occasions and had never failed a test until 24 March 2022. I do not intend to afford significant weight to Dr O’Toole’s opinion that the Applicant may have exceeded the zero limit on other occasions as this is too speculative.

[176] The evidence indicates the Applicant is a person who follows strict routine, has never failed a test before, the BAC reading was relatively low, and he is remorseful and has expressed contrition. I am entirely confident that should the Applicant be reinstated to his former position, this whole unpleasant experience of having been dismissed from his employer of approximately 40 years will cause him to make whatever adjustment is necessary to his routine to eliminate any possibility that he would report to work with anything other than a zero BAC for the remainder of his working career with the Respondent. I am also of the view that if he is to be reinstated it is highly likely he will remain employed with the Respondent until his retirement.

[177] I have not ignored the Respondent’s submissions that it is concerned that if the Applicant were to be reinstated it would send the wrong message to the workforce given its policy of requiring a zero BAC reading. However, as already addressed above, the Respondent’s policy does not make it mandatory that termination of employment must follow a failure to record a zero BAC reading, and its policy has always retained a discretion as to the final disciplinary outcome in each case. It may be that most cases lead to the ultimate termination of employment, however the policy allows for exceptions, and this is a case where an exception should have been made. I will return to the issue of the message to the workforce when considering the issue of restoration of lost pay.

[178] Having determined that it is appropriate to order that the Applicant be reinstated, I am also satisfied that it is appropriate to make an order to maintain the Applicant’s continuity of employment.

[179] I also intend to make an order that the Respondent restore 50% of lost pay to the Applicant, including superannuation contributions on that amount. The parties have not provided comprehensive submissions in order for the Commission to make a precise order setting out the monetary sum that would constitute 50% of lost pay.

[180] The Respondent made a submission to the effect that if the Commission intended to award compensation exercising power under section 392 it wished to be given an opportunity to be heard. Given I have concluded to order reinstatement, considerations under section 392 are not applicable in this case.

[181] In order to attempt to minimise time and cost to both parties, I intend to direct the parties to confer before the part of the order concerning lost pay is required to be complied with on 16 January 2023. The parties are directed to confer about the 50% figure contained in the order of the Commission. In keeping with the authorities on the assessment of lost pay, the notice pay already paid to the Applicant should be taken into account, as well as any other income earned since termination. Lost remuneration should be calculated by reference to the Applicant’s average earnings, including overtime and other penalties, in the six months prior to the positive test on 24 March 2022.

[182] I have arrived at the 50% reduction to the amount of lost pay to be restored, taking into account that whilst I have concluded that the dismissal was unfair for all of the reasons set out above, the Applicant’s failure to comply with the policy did still constitute misconduct, and that reduction takes into account an acknowledgement that misconduct occurred and also takes account of the concerns expressed by the Respondent about the message to others about failure to comply with the policy.

[183] In the unlikely event that the parties are unable to agree on the 50% of lost pay figure before the date that the order is to have effect, the parties are at liberty to apply to seek to have that part of the order concerning the restoration of lost pay set aside in order to have an opportunity to put further submissions before the Commission on the issue, and for any dispute about what constitutes 50% lost pay to be finally settled by the Commission. A separate order giving effect to this decision will be issued concurrently with this decision.”

Purves v Queensland Rail Transit Authority T/A Queensland Rail (2022) FWC 3343 delivered 21 December 2022 per Simpson C