[2011] FWA 1934

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Noel Ross Dowling
v
Atwood Oceanics Pacific Limited
(U2010/10950)

COMMISSIONER WILLIAMS	PERTH, 8 APRIL 2011

s.394 - application for unfair dismissal remedy

[1] This matter involves an application for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act) made by Mr Noel Dowling (the Applicant). The Respondent to the application is Atwood Oceanics Pacific Ltd (Atwood).

[2] A conciliation conference was conducted by a Fair Work Australia conciliator however the matter was not resolved and so it was referred for arbitration.

Background

[3] Mr Dowling was employed by Atwood as an Assistant Barge Engineer onboard an offshore rig known as the “Atwood Eagle.”

[4] The Atwood Eagle is a drilling rig that is leased to various oil and gas clients for the purpose of exploration drilling and for the completion of exploratory or production wells offshore.

[5] At the time of the relevant events the Atwood Eagle had been leased to BHP Billiton Petroleum.

[6] The Applicant, was given a direction by Atwood to attend a “BHP Billiton Petroleum 2010 Atwood Eagle Drilling Campaign Induction Session” (the Induction) on 29 and 30 June 2010 at the Esplanade Hotel in Fremantle.

[7] The Applicant was required by his employer to attend the Induction dinner held on the evening of 29 June 2010.

[8] At the Induction dinner all guests were served alcohol at pre-dinner drinks and with dinner. The attendees included employees of the Respondent and in some cases their partners plus employees of other employers and a number of other guests. A significant proportion of attendees, including employees of the Respondent, were consuming alcohol during the evening.

[9] During the course of the evening the Applicant consumed a number of alcoholic drinks.

[10] The next day, 30 June 2010, the Applicant was required by the Respondent to attend a medical examination and was excused from attending the morning sessions of the day's induction programme to do this.

[11] On the morning of 30 June 2010 the Applicant attended the medical examination. During that examination the Applicant was required to and gave a urine sample in which alcohol was detected.

[12] The Respondent later received the pathology reports showing that alcohol had been detected in the Applicant's urine and so sent a show cause letter dated 5 July 2010 to the Applicant.

[13] The Applicant replied with an e-mail response on 8 July 2010 which was considered by the Respondent.

[14] The Respondent decided to dismiss the Applicant. The Applicant was advised of his dismissal in a termination letter dated 14 July 2010.

[15] The letter advised that the decision to terminate the Applicant's employment was because he had tested positive for alcohol on the 30 June 2010 and this was in breach of the core conditions of his employment because attendance for work under the influence of drugs and/or alcohol was strictly prohibited.

[16] The letter noted that the Applicant had been advised in advance on 8 June 2010 of the requirement to attend the medical examination.

[17] The letter advised that the Applicant was terminated from the date of the letter with four weeks pay in lieu of notice.

The Applicant’s case

[18] The Applicant submits that the key point in the Respondent’s Drug and Alcohol Policy is that an employee must not be influenced by alcohol. That at the time the Applicant had his urine test, he was not influenced or impaired by alcohol in any way. The detectable alcohol was simply remnants of alcohol still in his urine consumed at a work function the night before. At the time the Applicant took the test, the alcohol in his system had fully metabolised.

[19] The Applicant was not in breach of the Respondent’s Drug and Alcohol Policy due to the fact that the Applicant was not under the influence of Alcohol at the time of testing.

[20] An injustice was created because the urine test cannot establish that the Applicant was under the influence of alcohol but only that he was exposed to alcohol at a work function.

[21] Further the Respondent seeks to contend that the Applicant should not have consumed alcohol at the Induction dinner due to the fact that the Applicant was to have a medical examination the next day.

[22] The Applicant was not given the opportunity to have his urine sample independently tested or given the opportunity to re-take the urine test.

[23] The Applicant was unaware that he would be required to give a urine sample at the medical examination as this had not occurred in previous medical examinations.

[24] The Applicant has a good service record with the Respondent and has never been disciplined for any sort of misconduct let alone disciplined for misconduct regarding breach of the Drug and Alcohol Policy.

[25] The Respondent says it has a zero tolerance policy on alcohol but the Respondent has not applied this policy consistently because there is evidence that some employees have tested positive for alcohol and still been allowed to fly on to the rig provided they recorded a breathalyser reading of below 0.2 blood alcohol content.

[26] It is also argued that the Respondent encouraged or at least condoned the Applicant's consumption of alcohol at the Induction dinner and so it is now unfair to dismiss him in these circumstances.

[27] Other employees of the Respondent have failed the urine test as part of the medical examination as did the Applicant but were only suspended as opposed to the Applicant who had his employment terminated.

[28] The Applicant was not on the Atwood Eagle at the time of his positive alcohol test and was not undertaking any work duties so there was no risk to any person.

[29] Considering all of these circumstances the Applicant argues that his dismissal is unfair.

The Respondent's case

[30] The Atwood Eagle operates within the continental shelf in various locations up to 3,000m in depth, which in Western Australia could extend up to 400km from shore. The Atwood Eagle is approximately 75m by 100m. The drilling deck is approximately 28m above the water.

[31] The Barge Engineer or Barge Captain is in charge of the rig as a vessel during the day. They have responsibility for all aspects of the rig’s maritime function.

[32] The principal functions of the Barge Engineer and Assistant Barge Engineer are to keep the rig stable, afloat and in position.

[33] The Barge Engineer is replaced on night shift by the Assistant Barge Engineer.

[34] The Barge Engineer and Assistant Barge Engineer are responsible for the rig and all personnel during any emergency response, including rig evacuation, and as part of that responsibility should be the last persons to leave the rig in the event of an evacuation.

[35] The position of Assistant Barge Engineer is a very senior leadership role on the Atwood Eagle

[36] Recent incidents involving the exploration rig the West Atlas in the Timor Sea and the production rig Deepwater Horizon in the Gulf of Mexico emphasise how important it is that those operating oil and gas rigs be vigilant in the way in which they work.

[37] As a result of these dangers and a number of fatal incidents in the past, particularly the Piper Alpha disaster in the North Sea in 1988 in which 167 people died, the industry is now highly regulated, particularly in Australia, with an acute focus on safety and risk prevention.

[38] Safety within the Australian industry is the responsibility of the National Offshore Petroleum Safety Authority (NOPSA), which regulates all rigs and associated other vessels, generally referred to in the singular as a facility.

[39] The operation of any facility is subject to the requirements imposed by the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009.

[40] Approval to operate a facility under the legislation requires the submission of a Safety Case. The Safety Case is a document which outlines the risk management for operating a facility and includes:

(a) a description of the facility;

(b) a formal safety assessment;

(c) an overview of the Respondent’s safety management systems;

(d) an explanation of the Respondent’s emergency response procedures; and

(e) a description of the performance monitoring which is undertaken.

[41] The section of the Safety Case devoted to Safety Management is where issues such as job safety analyses, permits to work and fitness to work, including a prohibition on the use of drugs and alcohol, are addressed.

[42] The Safety Case for the Atwood Eagle makes reference to and requires the Respondent to comply with its Drug and Alcohol Policy. The Drug and Alcohol Policy operates under the cover of the Respondents more generalised Illegal Drugs, Intoxicating Beverages, Firearms, Weapons and Stolen Property Statement.

[43] A failure to adhere to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and, more relevantly, the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 can result in the imposition of improvement or prohibition notices, penalties including fines and even the suspension or cancellation of the approved Safety Case, which would prevent Atwood from operating the rig.

[44] The Drug and Alcohol Policy is a zero tolerance policy, consistent with most policies within the industry, not only in Australia but worldwide. Many regulations, including those applicable in Australia, prevent the use of intoxicants on any facility, Regulation 2.15 of the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009.

[45] Further, some of the countries in which both the Respondent and its employees operate prohibit the use of not only drugs but also alcohol. In some of these countries, the mere possession, let alone consumption of alcohol can result in imprisonment.

[46] These factors together explain and justify the Respondent’s zero tolerance approach in its Drug and Alcohol Policy. This policy is a reasonable policy in the circumstances.

[47] The Drug and Alcohol Policy makes it clear that the presence of drugs or alcohol in any detectable amount constitutes a breach of the policy.

[48] A zero tolerance policy is fairer and preferable to one based on whether the employee involved is or is not under the influence of alcohol. An under the influence policy discriminates between employees depending on their differing abilities to tolerate the intoxicating effects of alcohol and the varying ability of those who are responsible for assessing those effects on them. It relies on subjective assessments instead of clearly definable and objective measures.

[49] By contrast a zero tolerance policy is not subject to arbitrary or subjective assessment. It is easily understood. It is capable of consistent and uniform application and avoids potentially unfair discrimination.

[50] Four key principles are consistently repeated in the Respondent’s Drug and Alcohol Policy. Those principles are:

(a) the Respondent can and will use urine testing to detect alcohol;

(b) a detectable amount of alcohol will amount to a breach of the Policy;

(c) urine testing for alcohol can occur at any time during paid work; and

(d) a breach of the Policy can result in the termination of employment.

[51] The Respondent paid all employees who attended the Induction on 29 and 30 June 2010. The Applicant was required to attend the Induction in the course of his employment and was paid his normal day rate for 29 and 30 June 2010.

[52] There was a clear breach of the Respondent’s policy, by the Applicant testing positive for alcohol, and such a breach will usually constitute a valid reason for dismissal.

[53] The Applicant was notified of the proposed reason for his dismissal in a show cause letter dated 5 July 2010. The Applicant was provided with an opportunity to respond to the reasons, which he took by providing a written email response on 8 July 2010.

[54] There was no requirement to provide the Applicant with another opportunity to pass the alcohol test as the Applicant asserts.

[55] The Applicant was clearly responsible for the misconduct on which the Respondent relied. The reasons for the termination were set out in the show cause letter of 5 July 2010 and included the fact that the Applicant had returned a positive test for alcohol at a time when he was on paid work for the Respondent.

[56] The Applicant held a senior leadership position with the Respondent. It was a position of considerable responsibility in which he, of all people, must or should have understood the importance of complying with the requirement to have no detectable level of alcohol in his system.

[57] The Applicant’s failure to comply with the zero tolerance policy was inexcusable. His subsequent attempts to excuse it by relying on the service of alcohol at a function on the previous evening, where there was no compulsion on him to consume it, are incompatible with the discharge of his leadership role as a senior employee and the requirement on him, among other things, to lead by example.

[58] The Respondent denies any inconsistent application of its Drug and Alcohol Policy.

[59] The Applicant’s dismissal was a fair, uniform and justifiable application of a policy which exists for very good reasons.

[60] The decision to terminate the Applicant’s employment was, therefore, not harsh, unjust or unreasonable.

Consideration of the evidence and findings

The Drug and Alcohol Policy

[61] Evidence was given by the Respondent's witnesses and by the Applicant himself as to the existence of the Respondent's Drug and Alcohol Policy.

[62] The evidence is that the Respondent has an “Illegal Drugs, Intoxicating Beverages, Firearms, Weapons and Stolen Property Policy Statement”. This includes an introductory explanation that the company may without prior warning conduct random tests of its employees to ensure there is no violation of this policy through the use of intoxicating beverages. The statement goes on to say that such random unannounced tests may include but are not limited to urinalysis tests, breathalyser tests or blood tests.

[63] The statement continues that any violation of this policy will be considered serious misconduct and will lead to disciplinary action up to and including immediate discharge of company employees.

[64] Section 7.0 of the statement is the Drug and Alcohol Policy. At section 7.2 there are a number of definitions including that:

‘The term “drug” is used interchangeably with the terms chemical or chemical substance, or alcohol for the purposes of these standards and procedures. '

[65] Also in this section the term “Under the Influence” is defined such that an employee is said to be affected by alcohol in any detectable manner. The definition explains that symptoms or influence are not confined to those consistent with misbehaviour nor to obvious impairment of physical or mental ability but rather that a determination of being under the influence:

“… Can be established by professional opinion, a scientifically valid test and, and in the case of alcohol by a layperson's opinion.”

[66] The Respondent argues and I accept that the testing of the Applicants urine sample provided during his medical examination is for the purposes of the above definition “a scientifically valid test” and indeed the Applicant did not argue to the contrary.

[67] Section 7.3 demonstrates that the policy applies broadly to the company's premises including work locations of the company whether owned or leased or rented or simply used.

[68] In addition section 7.4 provides that working with “...any detectable amount in the employees body...” of substances including alcohol or intoxicating beverages is prohibited. This concept is repeated a number of times in this section of the policy.

[69] Section 7.5 explains that enforcement will be, amongst other methods, by urine testing and that the Respondent reserves the right to require employees to submit to medical evaluations or examinations at any time, as a condition of employment, and such examinations may include urine tests or other tests to determine the use of alcohol or other substances prohibited by the policy.

[70] Finally section 7.7 deals with disciplinary action for policy violations and says that for a first confirmed positive result disciplinary action up to and including termination may occur.

[71] Considering the Drug and Alcohol Policy on its terms I accept that the presence of drugs or alcohol in any detectable amount in an employee’s body when reporting to work, while working or while on Atwood business will constitute a breach of the policy.

[72] The policy does not require that the employee be under the influence, in the ordinary meaning of those words, of for example alcohol for the employee to have breached the policy.

[73] The policy is as the Respondent describes it a zero tolerance policy concerning any detectable amount of alcohol or drugs in an employees body.

[74] As the Respondent argues this zero tolerance policy is not subject to arbitrary or subjective assessment. It is capable of consistent and uniform application. It is also easily understood by employees.

[75] I accept the Respondent’s submission that the Respondents Drug and Alcohol Policy clearly provides that the Respondent can use urine testing to detect alcohol and that such testing of an employee can occur at any time during paid work and may be random testing without prior warning. Further I accept the policy provides that if a detectable amount of alcohol is found in an employee’s body this will amount to a breach of the policy and such a breach can result in the termination of employment.

[76] 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 also the Applicants particular employment I find that this Drug and Alcohol Policy is reasonable in all the circumstances.

[77] Notwithstanding my findings regarding the terms and effect of the policy the Applicant argues that there has been either some amendment to the policy or that in practice at times the Respondent has applied other than a zero tolerance to alcohol. 1 These concerns are dealt with later in this decision.

[78] Attached to the policy are three standalone pages that are referred to as “Illustrations” numbered 7.1 7.2 and 7.3. Each Illustration comprises a summary of a critical element of the policy and provides for the acknowledgement by an employee of these terms of the policy by them signing at the bottom of the page.

[79] Illustration 7.1 involves an acknowledgement by an employee that they will voluntarily consent to amongst other things urine sampling for drug / alcohol screening. Illustration 7.2 is an acknowledgement of an employee’s agreement to submit to random urine drug screening. I note here that the policy as explained earlier defines “drug” to include alcohol. The final Illustration 7.3 is an acknowledgement that the employee has read and understood the Drug and Alcohol Policy and understands it requires employees to submit urine specimens for analysis of the presence of drugs/alcohol and that a detectable trace of any unauthorized substance is grounds for disciplinary action and this may include termination.

[80] The evidence of Mr Dowling is that in 2006 he read, understood and signed one copy each of Illustrations 7.1, 7.2 and 7.3. His evidence is that at that time he did understand that any detectable level of alcohol in a urine test could be a reason for dismissing him from his employment. 2

[81] This evidence of Mr Dowling given in cross examination is consistent with the response he made dated 8 July 2010 3 to the show cause letter from the Respondent. His response says that he is embarrassed about the positive result and that he has reviewed an alcohol intake chart and his understanding of this is that given what he had consumed the previous evening he should have, at the time of testing, registered zero on an alcohol test. The Applicant at this time did not challenge the Respondent’s view that he had breached the policy. Clearly when he responded to the show cause letter the Applicant acknowledged that the requirement was for him to have no detectable alcohol in his body.4

[82] The Applicant provided the tribunal with an expert report from a Professor Joyce which considered the self-reported amount of alcohol the Applicant said he drank the evening before his urine test and then answered various questions regarding impairment and the likely blood alcohol content of the Applicant the next morning. The report also explained that it is possible for a person to test positive for alcohol in their urine but at the same time have no alcohol in their blood.

[83] The Respondent does not challenge this expert report and accepts its conclusions.

[84] What is important here is that the Drug and Alcohol Policy of the Respondent is a zero tolerance policy which does not rely on whether an employee is impaired or not (in the ordinary meaning of those words) but only with whether or not there is a detectable amount of drugs or alcohol in their body rather than in their blood. Consequently the conclusions of Professor Joyce are not at odds with a finding that Mr Dowling had breached the Drug and Alcohol Policy. Mr Dowling did test positive for alcohol in his urine. Urine testing is expressly mentioned in the policy many times. Mr Dowling’s positive urine test was a breach of the Respondent’s Drug and Alcohol Policy regardless of whether he was or wasn’t impaired or what if any alcohol there was in his blood.

[85] There is no dispute that the urine test which Mr Dowling underwent on 30 June 2010 detected alcohol. The evidence of Mr Allen is that the result was above 0.04. 5

[86] Mr Dowling’s evidence was that he was paid to attend the two-day Induction including for the time he attended the medical examination and the balance of that day.

[87] His evidence is that his position as Assistant Barge Master is a senior leadership position with considerable responsibility including as required responding to potentially serious emergencies situations when these develop on the rig.

[88] There is no basis to assert Mr Dowling had a right to re-take the test or have his urine specimen tested by any other party.

[89] The conclusion up to this point is that Mr Dowling having returned a positive test for alcohol whilst at work was in breach of the Respondents Drug and Alcohol Policy and so was subject to the disciplinary provisions of that policy and the possible consequences for his breach included termination of his employment.

Exceptions to the zero tolerance policy?

The Alcohol Test Action Flowchart

[90] Mr Dowling and two other employees on board the rig gave evidence that on the rig on one of the notice boards there was a document which is titled “Alcohol Test Action Flowchart”. 6

[91] Their evidence was that the Alcohol Test Action Flowchart has been on the notice board for at least two years. They say they understood this document to be the Respondent’s alcohol policy that explained how Atwood personnel travelling to the rig would be treated.

[92] The flowchart summarised refers to breathalyser testing being conducted and if the result is positive but less than 0.02 blood alcohol concentration (BAC) an employee is allowed to travel offshore to the rig, but only if the employee passes the client blood alcohol concentration percentage if it's more stringent. If you do pass this then you must pass a further breathalyser test on the rig at 0.00% BAC before commencing work.

[93] The flowchart provides that if the first breathalyser test is greater than 0.02 % BAC then you are not allowed to travel offshore and disciplinary consequences will follow.

[94] There are obvious similarities between the approach in the flowchart and the evidence of these witnesses regarding an occurrence some years ago where, after a cyclone evacuation of the rig some employees failed breathalyzer tests performed by the helicopter contractor before flying to the rig but were allowed to fly if they retested with a zero reading sometime later.

[95] The evidence of Mr Allen the Respondents Area Manager Human Resource Services, is that senior officers on the rig had proposed the Drug and Alcohol Policy be varied to incorporate the approach set out in the Alcohol Test Action Flowchart. This was some years ago. His evidence was that he had vigorously opposed this but that the flowchart was put out as a draft to be considered by a consultative committee. His evidence was that the policy was never varied or amended to incorporate the approach set out in the Alcohol Test Action Flowchart. His evidence was the flowcharts existence on the notice board was nothing more than sloppy administration and needs to be seen in the context that there are a significant number of other notice boards on the rig and it appears that this flowchart only existed on one such notice board.

[96] One of the important points that needs to be made is that the Alcohol Test Action Flowchart has diagonally across it in a very large font a watermark the reads “DRAFT ONLY”. None of the witnesses who gave evidence that they believed the Alcohol Test Action Flowchart was in fact the official policy of the Respondent could explain how they had overlooked the existence of the words DRAFT ONLY on the document.

[97] The evidence is that the flowchart has never been referred to by Mr Allen or Mr Prain the Respondents regional Health Safety and Environment Co-ordinator during any of the many Inductions employees have been involved in nor is there any evidence that the flowchart has been otherwise adopted by the Respondent.

[98] Mr Dowling for the first time referred to this flowchart in a supplementary witness statement that was lodged immediately before the arbitration of this application. In this evidence he says that the Barge Master or the “OIM” on the rig some years ago referred him to the flowchart and so he understood it was the Respondents’ policy. His evidence on this point under cross examination however was very confused.

[99] Mr Dowling's evidence that this flowchart represents the Respondents policy on alcohol and that it demonstrates the policy is not zero tolerance is at odds with his other oral evidence that he understood that he would not be allowed on the rig with any trace of alcohol in his body. 7

[100] In addition it is notable that in response to the show cause letter Mr Dowling did not refer to the flowchart or what he now says he understood to be the policy principles it contains, that employees could return to the rig provided they returned a breathalyser test of less than 0.02% BAC. Further as will be seen later in this decision another two employees were disciplined for failing urine tests at medical examinations and similarly neither of these employees raised the existence of this alternative policy from the flowchart in their response to similar show cause letters from the Respondent.

[101] Having considered all the evidence regarding the Alcohol Test Action Flowchart I am not satisfied at all that it represents anything other than a draft amendment that was under consideration some years ago. I am satisfied then that the zero tolerance Drug and Alcohol Policy which the Respondent submits applied to Mr Dowling was in fact the policy of the Respondent at the time of Mr Dowling's urine test.

[102] In any event if the Alcohol Test Action Flowchart was part of the Respondents policy the chart specifies rules only for employees when they are travelling offshore to the rig. Mr Dowling was not travelling to the rig when he was tested. On its face then this flowchart would not apply to his circumstance in any event.

The legislation

[103] The Act prescribes what the tribunal must take into account when considering whether a dismissal was harsh, unjust or unreasonable as follows,

s. 387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:

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

(b) whether the person was notified of that reason; and

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

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

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(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; and

(h) any other matters that FWA considers relevant.

[104] Considering these matters in turn.

[105] The evidence is that Mr Dowling returned a positive test for alcohol whilst at work. Failing this urine test was a breach of the Respondent’s zero tolerance Drug and Alcohol Policy. That Drug and Alcohol Policy provides that the possible consequences for his breach included termination of his employment. The Drug and Alcohol Policy was reasonable in all the circumstances.

[106] The evidence is clear that Mr Dowling was fully aware of the requirements of the Respondent’s Drug and Alcohol Policy and was aware of the possible disciplinary actions that may be taken if he breached that policy including that he could be terminated. Mr Dowling in cross examinations agreed that he had been tested for alcohol on a number of occasions during his employment with the Respondent.

[107] Mr Dowling's positive urine test was therefore a valid reason for his dismissal related to his conduct.

[108] Mr Dowling was notified of the reason for his dismissal in the Respondents show cause letter prior to the Respondent making the decision to dismiss him.

[109] Mr Dowling was given the opportunity to respond to the reason his employer intended to dismiss him for and was invited to do so in reply to the show cause letter. Mr Dowling provided a response in his subsequent e-mail to the Respondent.

[110] Mr Dowling did not request a support person in any discussions and so there was no refusal of such a request by the Respondent.

[111] The dismissal did not relate to unsatisfactory performance by Mr Dowling.

[112] The process followed by the Respondent was consistent with the size of the Respondent's enterprise and the presence of dedicated human resource management specialists.

Other matters

Employees failing breathalyzer tests before flying to the rig.

[113] The Applicant argues that the Respondent's treatment of him is inconsistent with the way it has dealt with other employees who tested positive for alcohol when travelling to the Atwood Eagle rig.

[114] Specifically evidence was given by Mr Dowling and two other employees who work on the rig, Mr Smith and Mr Douglas, regarding employees who before boarding the helicopter to fly out to the rig have been required to take a breathalyser test for alcohol. Their evidence at its highest was that there have been occasions where employees have had a positive alcohol breathalyser test but have been allowed to repeat that test some time later. These employees flew to the rig on a later helicopter when their breathalyser reading had fallen to zero or even possibly if their breathalyser test result was less than 0.02 they flew to the rig regardless of their positive reading.

[115] The evidence of all three witnesses is somewhat unclear and relates to at most two instances but quite possibly only a single instance of this occurring. The circumstances appear to have been that this occurred after the rig had been evacuated because of an approaching cyclone. The employees on the rig had been evacuated and temporarily accommodated onshore. They were breathalysed when they attended the heliport some days later to fly back onto the rig.

[116] The evidence of the witnesses is that the testing of employees on this/these occasion was performed by the operators of the helicopter. Their evidence was that breathalyser tests before boarding helicopters often, but not always, occurs depending upon which client the rig is contracted to at the time. Different clients it seems have different standards in this regard. The evidence is clear that this testing is not carried out by the Respondent.

[117] The evidence of the witnesses for the Applicant regarding employees returning to the rig either having failed an initial breathalyser test, but passing a later test, or with a reading below 0.02 was mostly hearsay and somewhat confused. Whilst I accept there is evidence that something like this occurred in the past it is difficult to distil with any certainty exactly what did occur and when this was.

[118] The evidence of these witnesses regarding what the consequences for these employees of their positive tests were on this/these occasion is also unclear. One of these witnesses openly admits he is unaware of what if any disciplinary action was taken and another witness who believed no disciplinary action was taken readily admits that he does not know all the circumstances surrounding this event. I am not able to conclude whether or not there was any disciplinary action taken against these employees who failed the breathalyzer test conducted by the helicopter operator, nor if disciplinary action was taken what that discipline was.

[119] With regards to this issue the evidence of Mr Allen, the Respondents Area Manager Human Resource Services, was that over the period of his employment, from September 2008, the operators of the helicopter service have not provided to the Respondent records of any positive breathalyser readings of the Respondents employees. His evidence was that it was highly unlikely that these events occurred without him being informed. His evidence was that if the Respondent had been advised of any such positive breathalyser readings then they would have acted in accordance with their policy and appropriate discipline would have occurred.

[120] Mr Prain the regional Health Safety and Environment Coordinator for the Respondent gave evidence that during his employment with the Respondent, since January 2008, he believed any employee of the Respondent who failed a breathalyser test before boarding a helicopter would have been returned to Perth. He was not aware of any instance where employees had been allowed to retake a breathalyser test and fly at a later time to the rig when they had earlier tested positive for alcohol. Mr Prains evidence is that his expectation would have been that any employee failing a breathalyser test would have been dealt with under the Respondent’s Drug and Alcohol Policy and disciplined.

[121] The evidence of Mr Allen and Mr Prain and the fact that they were both employed in 2008 suggests that the events the other witnesses referred to occurred possibly as long ago as late 2007. This is consistent with the evidence of one of the witnesses for the Applicant Mr Douglas who recalled some of these events and believed they occurred during a cyclone evacuation three or four years ago. 8

[122] Having reviewed the evidence of these witnesses carefully my conclusion is that there was a single occasion probably sometime in 2007, although the year is uncertain, where following a cyclone evacuation some employees failed breathalyser tests before boarding the helicopter to fly to the rig. I find that some of those employees were given the opportunity to repeat the breathalyser test and were allowed to fly when they're reading was zero. I do not accept the evidence is sufficiently clear to support a finding that an employee was allowed to fly to the rig having, immediately beforehand, recorded a positive alcohol reading. I find that these tests were performed by the helicopter contractor and that the results were not communicated to the Respondents Perth staff however it is possible a senior staff member on the rig was aware of these developments at the time. I am not able to conclude what disciplinary action was taken by the Respondent or if any such action was taken following these events.

[123] Considering this limited evidence of these events and that they involve a single instance some years ago, and it is unclear if employees were disciplined, in the context of this application the Applicant has not put sufficient before the tribunal for me to conclude that these events demonstrate an inconsistent approach by the Respondent such that I should accept that Mr Dowling has been treated unfairly by the Respondent.

Further matters

[124] It was submitted for the Applicant that the fact that the Respondent was aware that alcohol was served at the Induction dinner was a mitigating factor that was ignored. The Respondent points out that there were a range of other people at the dinner whom were not employees of the Respondent. Further the Respondent argues that there was no compulsion on Mr Dowling to consume alcohol that evening and as he conceded in his evidence by drinking alcohol he took a risk and the responsibility was his.

[125] There was no evidence to support a conclusion that Mr Dowling was in some way forced to consume alcohol at the Induction dinner or even that he was encouraged to.

[126] The Respondents zero tolerance policy does not prohibit consumption of alcohol but rather prohibits employees attending for work with any detectable trace of alcohol in their bodies. Alcohol is freely available throughout our community and employees of the Respondent in order to comply with their obligations under the zero tolerance policy will at times have to exercise self control and not consume alcohol when other persons whom are not bound by such constraints are consuming alcohol. Such was the situation Mr Dowling found himself him at the Induction dinner. Similar social situations would be a common occurrence that employees of the Respondent, during nonworking hours, would experience. In all the circumstances then I do not accept that the fact that alcohol was served at the Induction dinner excused Mr Dowling from compliance with the policy or should have been taken into consideration by the Respondent when considering his breach of that policy.

[127] The Applicant also argues other employees have been treated differently to Mr Dowling in very similar situations. The evidence is that two other employees being Mr Douglas and Mr Smith both of whom gave evidence in this matter also tested positive for alcohol at their medical examinations. The evidence however is that the different facts of all three employees were considered side-by-side by the Respondent when deciding what action would be taken against them individually. The evidence is that the Respondent recognized significant differences between Mr Dowling's circumstances and those of Mr Douglas said Mr Smith.

[128] The Respondent noted that Mr Dowling was being paid at the time he attended the medical examination which was on the second day of the Induction whereas Mr Douglas was on his time off duty when he attended the medical examination as was Mr Smith. In addition the Respondent noted that Mr Dowling holds a relatively senior position and is responsible for a number of other employees, in comparison with Mr Douglas who is a radio operator and Mr Smith who is a utility person. Having considered the differences the Respondent made the decision to terminate Mr Dowling whereas Mr Smith and Mr Douglas were both provided with final written warnings and suspended for a period without pay.

[129] Considering this point I have noted the approach of the Full Bench of Fair Work Australia in Dorvill v Australian Postal Commission 8. In that matter the Full Bench stated:

“[21] The issue of differential treatment of employees in respect of termination of employment was considered by Vice President Lawler in Sexton v Pacific National (ACT) Pty Ltd. In Sexton’s case, his Honour said:

“[33] It is settled that the differential treatment of comparable cases can be a relevant matter under s.170CG(3)(e) to consider in determining whether a termination has been harsh, unjust or unreasonable …

[36] In my opinion the Commission should approach with caution claims of differential treatment in other cases advanced as a basis for supporting a finding that a termination was harsh, unjust or unreasonable within the meaning of s.170CE(1) or in determining whether there has been a ‘fair go all round’ within the meaning of s.170CA(2). In particular, it is important that the Commission be satisfied that cases which are advanced as comparable cases in which there was no termination are in truth properly comparable: the Commission must ensure that it is comparing ‘apples with apples’. There must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.”

[22] Section 170CG(3)(e) of the Workplace Relations Act 1996 (Cth) was relevantly similar to s.387(h) of the FW Act.

[23] Similarly, in Daly v Bendigo Health Care Group, Senior Deputy President Kaufman said:

“[62] I am troubled by the apparent disparity in the treatment of Mrs Daly and the other nurses concerned. However, on balance I have concluded that this factor does not render the otherwise justified termination of her employment into one which is harsh, unjust or unreasonable. There was no evidence led as to why the other three nurses were treated differently to Mrs Daly. The fact that none of them was sacked does not of itself render the treatment of Mrs Daly unjust. Although differential treatment of employees can render a termination of employment, harsh, unjust or unreasonable, that is not necessarily the case. I agree with Lawler VP’s observation in Sexton that ‘there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made.’ There is not, in this case, sufficient evidence to enable a proper comparison to be made. Having regard to Mrs Daly’s years of experience, her direct involvement with the patient to a greater extent than that of the other nurses and her refusal to acknowledge that she had acted inappropriately, I am not prepared to find that because the employment of the other nurses involved was not terminated, Mrs Daly’s termination of employment was harsh, unjust or unreasonable.” [Footnotes omitted]

[24] We respectfully concur with their Honours.

[25] We are not persuaded his Honour erred as suggested by Mr Darvell. It is apparent his Honour was both alive to and took into account the issue of how other employees who had engaged in conduct constituting the valid reason for Mr Darvell’s dismissal were treated by Australia Post. In his decision he specifically referred to the alleged inconsistency of treatment of employees breaching directions of Australia Post and the evidence in respect of the issue. However, his Honour concluded that:

“[78] [D]ifferent employees have different work histories, respond in different ways when issues of performance are raised with them, the nature of the breach may be arguably different because of different jobs and the context, and other matters. These matters explain what appears on the surface to be an inconsistency of approach to some degree.

[79] … factors such as the poor performance record of Mr. Darvell explain any difference in treatment.” [Footnotes omitted]

[26] Further, in determining whether Mr Darvell’s dismissal was harsh, unjust or unreasonable, his Honour said:

“[96] … There may be on occasion questions raised about the degree to which Australia Post is fully consistent in the application of its policies, but not in this case such as to undermine its right to issue directions and have them complied with. As discussed earlier, if comparisons are to be made between the treatment of various employees they have to take into account the different contexts, which include work history, the responses made by each employee, the nature of the job and other matters.””

[130] Adopting this approach the differences between the circumstances of Mr Dowling and those of Mr Douglas and Mr Smith are such that I am not satisfied that Mr Dowling has established that the termination of his employment was inconsistent with the disciplinary action applied to them so as to be inherently unfair.

[131] It is also appropriate in this case to note Mr Dowling’s length of service of approximately four years and his unblemished record of service with the Respondent over that period.

[132] Mr Dowling did return a positive test for alcohol whilst at work. The detection of alcohol in his body was a breach of the Respondent’s Drug and Alcohol Policy. That policy was a reasonable one in all of the circumstances and Mr Dowling was at all times aware of the requirements of the policy. That policy provides that the possible consequences for his breach included termination of his employment. Mr Dowling held a responsible leadership role in the Respondents operations.

[133] The Respondent considered what the appropriate disciplinary action should be and decided that it was appropriate that Mr Dowling's employment be terminated with pay in lieu of notice. That decision in all the circumstances was not harsh, unjust or unreasonable. Consequently the dismissal was not unfair and this application will now be dismissed.

COMMISSIONER

Appearances:

Mr N Marouchak, Lynn & Brown Lawyers, on behalf of the Applicant

Mr T Power, Counsel instructed by WA Workplace Law, on behalf of the Respondent

Hearing details:

2011.

Perth:

January 20, 21.

 1   Supplementary Witness Statement of Mr Dowling.

 2  Transcript PN 352-367.

 3  Attachment 1C to the application

 4   Transcript PN 412-414

 5   Witness Statement Mr Allen para 34.

 6   Exhibit A 4.

 7   Transcript 407.

 8   PN 783.

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