Fair Work Act 2009
s.394—Unfair dismissal

Trevor Purves
v
Queensland Rail Transit Authority T/A Queensland Rail
(U2022/6996)

Application for Unfair Dismissal Remedy – Dismissal Harsh – Reinstatement and Backpay ordered.

[1] On 8 July 2022, Mr Trevor Purves (Mr Purves / the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against Queensland Rail Transit Authority T/A Queensland Rail (Queensland Rail / the Respondent).

[2] The matter was listed for a conciliation before a Commission Conciliator on 22 August 2022 but did not settle. The matter was then allocated to me, and I listed the matter for a Directions Hearing on 5 September 2022. The matter was listed for hearing on 18 and 19 October 2022 via Microsoft Teams Video.

[3] The Applicant was represented by Mr Lucas Kennedy (Mr Kennedy) of the Rail, Tram and Bus Union (RTBU), and the Respondent was represented by Mr Sebastian Harris (Mr Harris), from Queensland Rail.

[4] The Respondent is not a small business employer, and there are no other jurisdictional issues.

BACKGROUND

[5] Mr Purves has been employed by the Respondent for a cumulative period of nearly 39 years. The only break in his continuity of employment with the Respondent occurred between 1998 to 2001.

[6] Mr Purves entered the employ of the railways at the age of 20. Prior to this, Mr Purves completed his formal education only until grade three (3) and consequently, worked in agricultural and agricultural-related industries until he commenced his employment with the Respondent.

[7] The Applicant commenced his employment with the Respondent as a Track Labourer in a “flying-gang” in Toowoomba. Over the lengthy period of his employment Mr Purves worked in a number of manual tasks directly connected to the construction and maintenance of railway infrastructure. His most recent position with the Respondent was as a Track Worker located at the Queensland Rail Roma Depot. This classified Mr Purves as a Rail Safety Worker (“RSW”) for the purpose the Rail Safety National Laws.

[8] On 24 March 2022, Mr Trevor Purves provided a positive test result for alcohol during a Queensland Rail random alcohol and other drugs test conducted at Roma. This being a breach of Section 2.1 of the Standard – Alcohol and other drugs (MD-10-166).

[9] Mr Purves was subject to Queensland Rail’s disciplinary process.

[10] On 24 June 2022, Queensland Rail terminated the Applicant’s employment as a Trackworker because the Applicant provided a positive test result for alcohol during a Queensland Rail random alcohol and other drugs (AOD) test conducted at Roma, which the Respondent contended breached the Respondent’s requirement in its Alcohol and other drugs Standard (MD-10-166) (the AOD Policy) that all workers must be under the prescribed limit for alcohol and drugs when signed on for work, in the workplace, rostered on duty, on call, or when formally representing Queensland Rail at any event or workplace (AOD Requirement).

SUBMISSIONS AND EVIDENCE

[11] The Applicant provided submissions on 19 September and reply submissions on 12 October 2022. The Applicant relied on his witness statement of 19 September 2022 1, a witness statement from his partner, Noelene Blake2 and a witness statement from Raymond Anderson.3 The Applicant also relied on the statement of Robert Nicholls.4

[12] The Respondent provided submissions on 5 October 2022 and relied on witness statements of:

•  Jim Benstead 5

•  Caine Burraston 6

•  Dr Robin (Sid) O’Toole 7

•  Gavin Anderson 8

•  Scott Osborne (in the form of correspondence) 9; and

•  Ryan Mort 10

[13] Final written submissions were filed by both parties on 9 November 2022 after the hearing.

23 March 2022

[14] It was submitted that Mr Purves is well known in his workgroup and family for being an anxious person who sticks to a very strict routine when it comes to his fitness for work. Mr Purves submitted he is known to follow this routine of ending his drinking and being in bed by 8:30PM to 9:30PM, even whilst working away. The Applicant submitted he has stuck to this routine for years, except where his work may modify it.

[15] The Applicant submitted that on the night before the alleged misconduct that led to his dismissal, he did what he always did. He walked home from the Queensland Rail Roma Depot at 3:00PM and then between 3:30PM and 7:45PM he drank his routine amount of alcohol. This is about 325mls of Johnnie Walker Scotch and no-sugar Coca Cola as a mixer. During this time, he only had a light microwave dinner.

[16] The Applicant submitted that the only matter that was inconsistent with a normal night was that his son, Mr Blaze Purves, was required to take his mother and Mr Purves’ partner, Noelene Blake, to the bus stop at around 2:00 – 3:00AM to ensure that Ms Blake was on a bus to Toowoomba for a cancer check-up. Mr Purves went to bed at around 8:30PM but had a restless night’s sleep worrying about his partner and son making it to the bus on time. Nonetheless, Mr Purves was asleep when his partner and their son left the home at 2:20am.

24 March 2022

[17] It was submitted that Mr Purves then awoke at 5:00AM on 24 March 2022, brushed his teeth, dressed himself and then immediately walked the short distance to his workplace at the Roma Depot. During this walk Mr Purves identified that there was a Drug and Alcohol tester on site. Consequently, he knew during this walk that he would be tested for Drugs and Alcohol before he started any type of work. He submitted that he had no concerns about this test, as he has been tested numerous times before and his drinking behaviour had been the same for previous tests.

[18] When Mr Purves arrived at the Depot, he asked to cut in front of his other workmates so he could get the test over and done with so he could properly start his day. A requirement of the testing is that you are unable to drink or eat before you are tested.

[19] The Applicant submitted that when he was tested, he initially blew 0.037 Breath Alcohol Content (BAC). However, the Applicant submitted that concerns were raised by the tester about this number as the testing machine had been acting strangely earlier in the morning. Mr Purves then waited the mandatory 20 minutes before being tested again.

[20] The Applicant submitted that upon being tested again he received a reading of 0.025 BAC. Earlier in the morning a workmate of Mr Purves, Mr Raymond Anderson (Mr Anderson), was also tested. It was submitted by the Applicant that Mr Anderson’s initial test reported a BAC of 0.08, and after this test he waited the 20 minutes and upon retesting the machine was not able to get a reading in four separate instances. Mr Anderson clarified in his oral evidence that he meant to say 0.008 and not 0.08.

[21] The Applicant submitted that during Mr Anderson’s test, Mr Purves had his first test. Mr Anderson reports that the tester was required to contact her boss and carry out some form of fix for the machine. It was submitted by the Applicant that after some changes were made to the machine, Mr Anderson was retested, and he received a final reading of 0.00 BAC. He was then returned to work. The Applicant contended that it is, therefore, questionable as to whether the breathalyser apparatus that was used by the AOD tester was functioning properly on 24 March 2022.

[22] Upon Mr Purves receiving his 0.025 BAC reading he was stood down immediately and was sent home. During his time in the workplace on this morning, the Applicant submitted that he did not carry out any work of any kind.

[23] The Respondent submitted that on 24 March 2022, the Applicant presented to duty and was in the workplace at the Respondent’s Roma Depot whilst above the prescribed limit for alcohol of 0.000 BAC, in breach of the Respondent’s AOD Policy.

[24] It was the Respondent’s submission that on the morning of 24 March 2022, a representative from the Respondent’s external drug and alcohol test provider, Ms Caine Burraston of Fit 4 Duty, attended the Respondent’s Roma Depot to undertake random drug and alcohol testing. The Applicant undertook the drug and alcohol testing and received a positive BAC result which was above the Respondent’s prescribed limit for alcohol of 0.000 BAC. Specifically, the Respondent submitted that:

(a) at approximately 06:57am the Applicant returned a positive result for alcohol of 0.037 BAC; and

(b) following a period of 20 minute, the Applicant was retested at approximately 07:15am and returned a result of 0.025 BAC.

Investigation/Other Factors

[25] Mr Purves was then made the subject of an investigation by Queensland Rail management which resulted in Mr Purves’ employment being terminated on 20 June 2022.

[26] The Respondent submitted that the Applicant was afforded procedural fairness throughout the investigation and discipline process.

[27] The Applicant submitted that he was honest and deeply apologetic during the investigation and disciplinary process. He was consistent with his retelling of events and did not shy away from answering the questions put to him. Until this event Mr Purves had an unblemished service record that spanned decades. The Applicant contended that due to Queensland Rail owning a majority of Queensland’s rail network, Mr Purves has been banned from working as a contractor or employee of a company that maintains or operates on the Queensland Rail network.

[28] In essence, it was submitted by the Applicant that he cannot secure the same type of job he has been certified and qualified to carry out for decades. At the age of 63 and with his limited literacy and technology skills, it was submitted Mr Purves will struggle to be retrained into a role that will provide him and his family economic stability until he reaches preservation age.

[29] The Applicant submitted his family has also been struck hard by this dismissal. With Mr Purves’ son, an apprentice, now being required to return to the family home to assist his father and mother with finding a new home and meeting their everyday expenses.

[30] It was submitted by the Applicant that for his partner, a disability support worker, the dismissal has been even harder. She has had to carefully balance looking after Mr Purves fragile mental state, whilst also taking on additional overtime workings that see her away from the family home.

[31] It was submitted Queensland Rail was made aware of the significant harshness a dismissal would cause to Mr Purves and Mr Purves’ family but continued to dismiss Mr Purves.

[32] The Respondent submitted they commenced an investigation into the Applicant’s positive alcohol test. The Applicant was invited to attend an interview with the investigator to obtain his response to the following allegation: “It is alleged that on 24 March 2022, Mr Trevor Purves provided a positive test result for alcohol during a Queensland Rail random alcohol and other drugs test conducted at Roma. This being a breach of section 2.1 of the Standard – Alcohol and other drugs (MD-10-166)”.

[33] The Respondent contended that the Applicant attended the interview and had a support person (his Union Delegate) present. During this interview, the Applicant agreed with the allegation, acknowledged that he was required to follow the Respondent’s procedures and AOD policies and always work safely, and stated that that he understood the Respondent’s expectations relating to fitness for work as him being expected to turn up to work always free from any alcohol and other drugs and always return a zero/negative reading.

[34] The Respondent submitted on or about 6 April 2022, the investigator finalised the Investigation Report. Based on the information available, the investigator was satisfied that the Applicant had provided a positive test result for alcohol during a random AOD test at Roma on 24 March 2022 and this was in breach of section 2.1 of the Standard – Alcohol and other Drugs (MD-10-166). The Applicant was advised of the outcome of the investigation and provided with a copy of the Investigation Report.

[35] The Respondent submitted on or about 22 April 2022, the investigator provided a recommendation to Jim Benstead, Head of Regional, that the Respondent issue the Applicant a letter requesting that he show cause why his employment should not be terminated as a result of his breach of the AOD Policy. As Head of Regional, Mr Benstead was responsible for the Applicant’s disciplinary process. The Respondent submitted that on 29 April 2022, Mr Benstead wrote to the Applicant to afford him the opportunity to respond to the allegation relating to his positive alcohol test, breach of the AOD Policy and the proposed disciplinary action of termination of his employment.

[36] The Respondent submitted on 12 May 2022, the RTBU provided the Applicant’s response to the allegation and proposed disciplinary action. The Applicant admitted that he engaged in the alleged conduct, submitted that he thought his age and weight loss may have impacted his positive result and outlined a range of matters he wished the Respondent to consider in making the decision whether to terminate his employment (including his age, length of service, employment record, the impact dismissal would have on him and his family).

[37] Mr Benstead said he considered the Applicant’s response and the material available to him, and was satisfied on the balance of probabilities that the allegation was substantiated and that the appropriate disciplinary action in the circumstances was termination of the Applicant’s employment. In reaching this decision, Mr Benstead considered the seriousness of the Applicant’s conduct as well as the mitigating circumstances such as the Applicant’s age, length of service, the impact of a dismissal on the Applicant and his employment record.

[38] In weighing the mitigating factors, Mr Benstead considered that Queensland Rail takes employees presenting to duty with the presence of alcohol in their system extremely seriously. It was submitted that the risk associated with the Applicant presenting for duty with the presence of alcohol in his system could have had catastrophic consequences on the Applicant, other Queensland Rail Employees and the general public.

[39] Mr Benstead also had regard to the Applicant’s role, being that of a Trackworker, fulfilling safety critical tasks daily within the context of the inherently dangerous rail industry. Weighing these factors, Mr Benstead also found that given the Applicant’s length of service, the Applicant would be well aware that Safety is Queensland Rail’s number one priority and was aware of the Applicant’s obligations to ensure that the Applicant does not attend duty with the presence of alcohol in the Applicant’s system. Mr Benstead considered the Applicant’s responses during the investigation process where the Applicant claimed he fully understood his responsibility and that the Applicant had seen first-hand how dangerous alcohol and other drugs can be in the workplace.

[40] Whilst Mr Benstead sympathised with the Applicant’s circumstances, Mr Benstead decided that the seriousness of the Applicant’s conduct outweighed the mitigating circumstances and dismissal was appropriate and proportionate.

[41] On 24 June 2022, Mr Benstead wrote to the Applicant advising him of his decision to substantiate the allegation against him and terminate his employment effective 24 June 2022.

[42] The Applicant’s dismissal took effect on 24 June 2022. The Respondent paid the Applicant his unpaid wages and other entitlements, including five weeks’ payment in lieu of notice.

Legislative Environment for Rail Safety Workers and Rail Operators/ Safety at Queensland Rail

[43] RSW work is highly regulated by the Rail Safety National Laws. Queensland adopted the jurisdiction of these laws in mid-2017. The Rail Safety National Laws place certain legal obligations and duties on rail workers and railway operators. This includes amongst other things the regulation of:

•  Employee health and fitness for work;

•  Fatigue management; and

•  Alcohol and other drug (“AOD”) management.

[44] On the later, the Rail Safety National Laws prescribe limits on the permittable presence of alcohol and other drugs in the bodily systems of rail safety workers when they are carrying out working consistent with rail safety work.

[45] In respect to the presence of alcohol the prescribed limit is a BAC of 0.00.

[46] There are also requirements placed on railway operators in respect to managing alcohol and other drugs in the workplace; this includes.

a. Establishing a drug and alcohol policy; and

b. Providing information and education to rail safety workers including;

i. Posting the policy statement on noticeboards or on the website;

ii. Asking rail safety workers to sign a copy of the policy statement to ensure understanding; and

iii. Including articles about the Drug and Alcohol Management Policy (“DAMP”) in regular quarterly meetings or newsletters; and

iv. Including information about drug and alcohol management in training and re-certification processes.

The Respondent’s Policies

[47] Queensland Rail’s Drug and Alcohol policies are governed under MD-10-166 “Alcohol and Other Drugs” Standard. The standard presents, amongst other things, the following obligations on the Respondent and all of the Respondent’s workers in respect to the workplace and Drugs and Alcohol;

“2.2.2 Education program for Queensland Rail workers

All workers must complete alcohol and other drugs awareness training as part of the mandatory induction process. Annual refresher training is also mandatory for all employees and applicable contractors.

Ongoing access to education and training information is available to workers through fact sheets, information on the Fitness for Work portal page and the provision of face to face awareness sessions when requested by leaders of functions, groups and teams…

2.4.2 Prescribed limit – alcohol

An alcohol test will be considered positive if a result greater than the prescribed limit is returned.

A worker is over the prescribed limit when the concentration of alcohol in their breath is more than 0.000 grams of alcohol in 210 litres of breath…..

2.8 Random testing

All Queensland Rail workers, business visitors and volunteers on Queensland Rail workplaces will be subject to the program of random alcohol and other drugs testing. Refer to Arranging an alcohol and other drugs testing session Procedure MD-13-32…

2.15 Management of positive tests

Initial management of not-negative and positive tests shall be in accordance with the Alcohol and Other Drugs Incident Management Procedure MD-15- 337.

If required, the Safety, Risk and Assurance team may liaise with an Alcohol and Other Drugs Expert or request People and Culture to contact the Queensland Rail Chief Occupational Physician to obtain an interpretation should the laboratory confirm a positive test result.

Performance management of Queensland Rail employees relating to a positive test will be managed in accordance with the Performance and Behaviour Standard MD-13-327.

Any Queensland Rail employee who tests positive for alcohol or other drugs must also be referred for an alcohol and other drugs assessment with a psychologist before resuming work. The outcome of the alcohol and other drugs assessment must be considered in the development of a management plan. If required, any alcohol and other drugs assessments may only be released to the Chief Occupational Physician or Authorised Health Professional to assist with the test subject’s fitness for duty. This assessment may occur before the return to workplace test only if the employee is not required to attend a Queensland Rail worksite before, or when, participating in the assessment..

[48] The Applicant submitted that it is very important to note that Queensland Rail’s Drug and Alcohol Policy is distinct from the National Rail Safety Laws and captures a swathe of scenarios which are not captured under the National Rail Safety Laws.

[49] It was the Applicant’s submission that the testing that occurred on 24 March 2022 that occurred was a scenario not captured under the Rail Safety National Laws as the employees were not carrying out Rail Safety Work at the time of testing.

[50] The Applicant submitted that non-negative and positive tests are managed under Queensland Rail’s Alcohol and Other Drugs Incident Management Procedure MD-15-337. Contained in this procedure is a flowchart for the management of a positive alcohol and other drugs test for a Queensland Rail employee.

[51] The Applicant contended that depending on the advice received from Queensland Rail’s human resources department (HR Central), Queensland Rail can either return an employee who tested positive for an alcohol or other drugs test, after an assessment with a psychologist, to work, or otherwise, the employee will be required to be managed under the discipline process standards (Performance and Behaviour Standard MD-13-327 and Discipline Process Specification MD-10-52).

[52] It was submitted by the Applicant that when managed under the disciplinary process path, the employee will be removed from the workplace and an investigation will commence. Mr Purves was required to partake in this process. Once the investigation is concluded, the investigator is provided the opportunity to determine whether the allegations of misconduct put to the employee are “substantiated”, “partially substantiated” or “not substantiated”.

[53] The Applicant contended that with the conclusion of the investigation, the Queensland Rail leader in charge of the disciplinary process is empowered under the Discipline Process Specification to exercise any of the following disciplinary actions:

“2.2.3 Step 3: Discipline action

The following discipline actions may be accessed during the course of the discipline process. In selecting other appropriate discipline actions, leaders shall have regard to the severity of the issue, previous discipline/MUPP actions and relevant circumstances. Leaders should seek advice from HR Central/Ethics and Investigations in selecting an appropriate discipline action.

2.2.3.1 Managing unsatisfactory performance process

A disciplinary outcome may be that an employee is managed under the unsatisfactory performance process. This may occur in one of the following situations:

a) When the employee has already been managed under the Unsatisfactory Performance Process and has completed a performance improvement period. In this situation the formal assessment indicates that performance has not returned to the required, satisfactory level. Disciplinary action is taken and the leader should determine that an additional performance improvement period is required as the performance continues to be unsatisfactory (refer to the Managing Unsatisfactory Performance Process Specification).

b) When the employee is not currently being managed in the Unsatisfactory Performance Process but is disciplined for misconduct or unacceptable behaviour. The leader may determine that an action is that the employee shall be managed under the Unsatisfactory Performance Process and, on this basis, commences a performance improvement period (refer to the Managing Unsatisfactory Performance Process Specification).

2.2.3.2 Warning

The leader may issue a warning in writing to the employee in instances of misconduct, unacceptable behaviour and/or ongoing performance concerns. Advice and assistance must be sought from HR Central/Ethics and Investigations. This document shall be stored on the employee’s corporate personnel file.

2.2.3.3 Final warning

The leader may issue a final warning in writing to the employee in instances of severe and/or ongoing discipline issues. This is a final opportunity to signal to the employee the seriousness of their misconduct, unacceptable behaviour and/or unresolved performance concerns and to provide a final opportunity to improve prior to considering dismissal. This shall take the form of a written letter which shall be provided to the employee. Leaders must seek assistance from HR Central/Ethics and Investigations. This document shall be stored on the employee’s corporate personnel file.

[54] The final option available to the Queensland Rail Leader is dismissal of the worker. This requires the following to occur:

2.2.3.4 Dismissal

a) Recommending dismissal

The leader should take all reasonable steps to assist an employee to correct their behaviour or performance before recommending dismissal, except in cases of misconduct which justify summary dismissal.

Prior to recommending dismissal to the relevant delegated leader, the leader shall make sure that:

•  this specification has been applied fully and fairly

•  the grounds for justifying dismissal are clear

•  it can be proven that (a) on the balance of probabilities that the conduct/unsatisfactory performance has occurred; and (b) that there is a sufficient reason for the dismissal

•  in cases of unacceptable behaviour or unresolved performance concerns, clear warning was given to the employee that continuation may lead to dismissal

•  all documentation required by this specification has been retained and reviewed.

Advice must be sought from HR Central/Ethics and Investigations prior to progressing dismissals.

b) Show cause letter

The employee’s response to the show cause letter shall be considered prior to making a decision on whether to progress with dismissal. In some cases of serious misconduct, it may not be necessary to issue a show cause letter. However, in these circumstances the employee shall be provided with an opportunity to respond to the issue during the Discipline Process. Show cause letters and responses (where applicable) shall be stored on the employee’s corporate personnel file.

Upon receiving a recommendation to dismiss the employee, the delegated leader should issue a show cause letter to an employee prior to determining whether or not to dismiss. This letter requires the employee to ‘show cause’ as to why their employment contract with Queensland Rail should not be terminated. The purpose of this letter is to give the employee an opportunity to respond to the dismissal recommendation and to demonstrate reasons why dismissal should not occur. The show cause letter will provide the employee with all reasonable information required in order to enable them to respond appropriately. Advice on issuing show cause letters must be obtained from HR Central/Ethics and Investigations.

Show cause letters shall provide employees with a precise time in which to respond. This is usually a period of three (3) working days from issuing the letter, although this time period may be lengthened. This may be appropriate in circumstances including but not limited to occasions such as where the letter has been posted rather than hand delivered.

c) Dismissal letter

Where the employee’s response to the show cause letter does not satisfy the delegated leader, the delegated leader shall issue a dismissal letter to the employee. The dismissal letter should state:

•  the date that the ‘show cause’ letter was issued, or alternatively the date that the employee was afforded an opportunity to respond to the issue which has led to the dismissal

•  the date that the ‘show cause’ response was received (if applicable)

•  that the response has been considered

•  the reason for termination including the reason for rejecting the information in the show cause response

•  the decision to terminate

•  the date of termination

•  the notice period (if applicable)

•  the requirement to return Queensland Rail property.

Dismissal letters shall not introduce any new reasons for the dismissal to which the employee has not had the opportunity to respond. Advice on issuing dismissal letters must be obtained from HR Central/Ethics and Investigations.

Dismissal letters shall be stored on the employee’s corporate personnel file. Payroll shall be advised of any dismissals in order to process entitlements.

d) Notice prior to termination

In terminating employment for reasons other than redundancy, or serious misconduct (which justifies summary dismissal), the minimum notice period applies as per the relevant enterprise agreement.

e) Other

In addition to the disciplinary outcome, Queensland Rail will consider any proposal for voluntary reduction as follows:

•  An employees’ written request for voluntary reduction will be considered by the leader in consultation with HR Central. In considering the employee’s request, leaders shall confirm if a suitable, vacant position exists, which the employee will be able to competently perform.

•  Voluntary reduction may be permanent or temporary and will be approved by the relevant ELT member. If approved, the leader shall inform Payroll of the employee’s new classification and pay rate.

[55] Queensland Rail considers the following acts as serious misconduct: Serious misconduct includes:

a. wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment

b. conduct that causes imminent and serious risk to:

i. the health or safety of a person

ii. the reputation, viability or profitability of the employer business

c. theft

d. fraud

e. assault

f. the employee being intoxicated at work or under the influence of a drug

g. the employee refusing to carry out a lawful and reasonable instruction that is consistent with their contract of employment

h. other misconduct prescribed under a legislative regulation.

[56] The Applicant contended that ultimately the Queensland Rail Leader has the discretion to not discipline the employee.

[57] The Respondent submitted that the Applicant’s former role, operating and working in the rail industry is inherently high risk. Errors, brief lapses in judgment and failure to comply with safety critical requirements can result in devastating consequences, including the serious injury or loss of life of workers and the public. There is an extensive history of rail incidents in Australia which highlight the consequences when things go wrong, and sadly the Respondent has experienced a number of incidents over the years which have resulted in the death of its workers. It is therefore critical that the Respondent maintains robust safety management processes.

[58] The Respondent submitted that the rail industry is heavily regulated in relation to safety requirements. The RSNL and the Work Health and Safety Act 2011 (QLD) (the WHS Act) require the Respondent to eliminate or manage safety risks to a level that is safe so far as is reasonably practicable. The RSNL also regulates a range of safety related matters, including alcohol and other drug (AOD) management. Specifically, the RSNL:

(a) requires the Respondent, as a Rail Transport Operator, to ensure so far as is reasonably practicable that workers are not affected by drugs or alcohol while on duty or undertaking Rail Safety Work and have an AOD management program in place;

(b) makes it an offence under RSNL for carrying out (or attempting to carry out) rail safety work whilst a worker has above a 0.000% BAC. The RSNL considers a worker was carrying out (or attempting to carry out) rail safety work, if they have arrived at the place of work, and either have signed on and are available to carry out rail safety work, or are otherwise on duty for the purpose of carrying out rail safety work; and amongst other things, makes it an offence for a rail safety worker to carry out, or attempt to carry out, rail safety work where their BAC is above 0.000% BAC.

[59] The Respondent submitted under the RSNL, a worker will be taken to be carrying out, or attempting to carry out, rail safety work if they:

(a) have arrived at the place of work, and

(b) have signed on and are available to carry out rail safety work, or

(c) are otherwise on duty for the purpose of carrying out rail safety work.

[60] The Respondent submitted that testing of the Applicant which occurred on 24 March 2022 was a scenario captured under the RSNL because the Applicant had arrived at the place of work, was signed on and available to carry out rail safety work.

[61] The Respondent submitted they have extensive safety policies and procedures in place to meet its requirements under the RSNL and WHS Act, to ensure the safety of its workers. A critical aspect of meeting its safety obligations is the Respondent’s well entrenched and strong safety culture. One of The Respondent’s core values is that ‘We Act Safely’ and this value is underpinned by the Respondent’s safety vision being ‘Safety Comes First, Always.’

[62] The Respondent submitted that their safety commitments inform its priorities, guide its actions, and demonstrate how it lives its Safety Vision. This unwavering commitment to safety is a necessity given the inherently dangerous rail industry, notwithstanding the Respondent’s safety obligations.

[63] The Respondent submitted to meet its obligations under the RSNL and WHS Act, the Respondent has in place an AOD Policy which sets a strict AOD Requirement across its entire organisation (including rail safety workers) and provides for an AOD testing program to ensure that employees do not attend with the presence of alcohol and other drugs in their system.

[64] The Respondent contended importantly, while Queensland Rail’s AOD Policy is harmonised with the limits set out in RSNL, the scope of the policy is not restricted in application by the RSNL; it applies equally to the workplace and work activities that are not rail safety work or railway infrastructure based on Queensland Rail’s WHS Act obligations.

The Respondent’s Policy Framework

[65] The Respondent submitted that during his employment with the Respondent, the Applicant was subject to all relevant policies and procedures as determined by the Respondent from time to time. The Applicant’s positive test result was a direct breach of the Respondent’s policy framework.

[66] The Respondent’s AOD Policy outlines the prescribed limits for the presence of Alcohol and Other Drugs in an employee’s system when presenting for duty. Further, the AOD Policy provides that employees will be subject to AOD testing in a range of circumstances, including through the Respondent’s random AOD testing program.

[67] Among other things, the AOD Policy states under section 2.1 Principles:

(a) All Queensland Rail workers, visitors, customers and members of the public have a right to be free from potential harm associated with the use of alcohol and other drugs while on a Queensland Rail workplace.

(b) All Queensland Rail workers 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.

(c) All workers are personally responsible for their own health, wellbeing and fitness for work. […].

[68] Under the AOD Policy, a worker is over the prescribed limit for alcohol when the concentration of alcohol in their breath is more than 0.000 grams of alcohol in 210 litres of breath.

[69] The Respondent submitted that as the Applicant outlines in his submissions, a positive alcohol result will be managed in accordance with the Respondent’s policies and procedures, including the AOD Policy, Alcohol and Other Drugs Incident Management Procedure MD-15-337, Performance and Behaviour Standard MD-13-327 and Discipline Process Specification (MD-10-52).

[70] The Respondent submitted they managed the Applicant’s positive test in accordance with the applicable policies, standards and specifications, including the AOD Policy, Performance and Behaviour Standard MD-13-327 and Discipline Process Specification (MD-10-52), and imposed a disciplinary penalty which was open to it under those documents.

[71] On 24 March 2022, the Applicant presented to duty and was in the workplace at the Respondent’s Roma Depot whilst above the prescribed limit for alcohol of 0.000% BAC. The Respondent contended that the Applicant was excluded from duty upon confirmation of the result and management contacted HR central for advice in accordance with the incident management procedure. The HR Central advice was to commence an investigation into the Applicant’s conduct and the matter was triaged to Ethics and Investigations for an investigator to be assigned and support management on the investigation process. The investigation and subsequent discipline process was then managed in accordance with the Discipline Process Specification (MD-10-52).

[72] The Respondent accepts the Applicant’s submission that Mr Benstead, as the leader in charge of the Applicant’s disciplinary process, was empowered under the Discipline Process Specification (MD-10-52) to manage the Applicant’s conduct through either the unsatisfactory performance process, issuing a warning, final warning and dismissal.

[73] The Respondent submitted that Mr Benstead considered the disciplinary actions available to him, being management under the unsatisfactory performance process, warning, final warning and dismissal, as well as the material before him. The Respondent submitted that he gave thorough consideration to the mitigating factors, including the Applicant’s age, length of service, employment history and potential affects of dismissal on him, and weighed those against the seriousness of the Applicant’s conduct. While Mr Benstead sympathised with the Applicant, and weighed up lesser penalties other than dismissal, he decided that the seriousness of the Applicant’s conduct outweighed the mitigating circumstances, and that dismissal with notice was the appropriate disciplinary action in all of the circumstances.

[74] The Respondent submitted that the AOD Policy is a reasonable and lawful policy which the Respondent considers is necessary to satisfy its safety obligations under both the WHS Act and RSNL, which requires the Respondent to have an AOD management program in place. An AOD test is unable to test for the level of impairment of a person. Any level of alcohol above 0.000% BAC could pose a risk to the health and safety of the Respondent’s workers, contractors and the public at large. The Respondent operates in an inherently high risk industry and any presence of alcohol which could increase the risk of serious injury and death of a person is unacceptable. The AOD Policy is a reasonably practicable measure and is appropriate to manage these risks in the Respondent’s safety critical working environment.

The Applicant’s training (including in AOD and Code of Conduct)

[75] The Applicant had been trained in the Respondent’s policies and in particular, completed multiple modules relevant to the requirements of the Respondent’s AOD Policy and Code of Conduct. This included Code of Conduct Refresher training (completed in late 2021, 2020, 2019 and previous years), All Aboard Refresher training which covered AOD and Code of Conduct (completed in November 2020, January 2020, 2018 and 2013), and specific Alcohol and Other Drugs re-training (completed in October 2017, 2013, 2011 and 2010). The Applicant has attended “Tool Box Talks” on AOD in 2020 and 2018. The Applicant’s own evidence in the investigation was that he was well aware of the requirements under Respondent’s AOD Policy, including the AOD Requirement to remain under the prescribed alcohol limit of 0.000 BAC.

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.

Other Matters

[96] The Respondent submitted that the Applicant claims his dismissal was harsh, because of:

(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.

[97] The Respondent acknowledges the compelling mitigating circumstances in this case and submits that it gave considerable thought to these matters in reaching the decision to dismiss the Applicant. However, in weighing the seriousness of the Applicant’s conduct against these factors, Mr Benstead reached the view that dismissal was appropriate and proportionate in the circumstances given the serious nature of the Applicant’s conduct.

[98] The Respondent submits that it operates in a safety critical industry and the Applicant’s role involved undertaking safety critical work. The Respondent has in place a clear AOD Policy which requires all employees to attend its workplaces under the prescribed limit of 0.000% BAC. The Applicant failed to comply with the AOD Requirement. The Respondent submitted that there is insufficient evidence before the Commission to support a finding of harshness, and the evidence before the Commission weighs in favour of a finding that dismissal was not harsh in all the circumstances. In the alternative, a finding that the dismissal was unfair should not result as any finding relating to harshness would not outweigh other relevant considerations in relation to the validity of the reason for dismissal - being a serious breach of the Respondent’s policy, and the fact that the Respondent was afforded procedural fairness.

Applicant’s qualifications

[99] The Respondent submitted that the Applicant is multi skilled, holds a qualification (including a Certificate II in Rail Infrastructure) and competencies within the civil infrastructure field, and is highly trained and highly experienced in infrastructure maintenance. The Respondent submitted that contrary to the Applicant’s submission, the Applicant’s experience, skills and training will increase the Applicant’s ability to obtain employment.

The Applicant’s housing

[100] The Respondent submitted that they have allowed for the Applicant to remain in his property since the Applicant’s dismissal and is still in discussions with the Applicant on his housing situation, including the option for the Applicant to purchase the property from the Government by way of private sale.

Effect on family

[101] The Applicant submitted that Mr Purves is unique in regard to his personal circumstances and reliance on his employer for economic and familial stability. Mr Purves’ family is heavily reliant on his wages. Mr Purves’ wages go to supplementing the income of his children and his partner. One child, who is undertaking an apprenticeship, is already being required to move back into the family home to ensure that the family can pool its resources. This precarity is further compounded by Mr Purves’ reliance on Queensland Rail’s supply of his housing. Mr Purves and his family have been living in Queensland Rail housing for the past decade and will now be required to enter the volatile rental and real estate market to secure stable and long-term housing. Mr Purves’ partner, Ms Noelene Blake, a community care worker, has now been required to pick up additional overtime shifts where she is required to stay overnight at client’s homes away from the family home. Mr Purves’ partner has genuine concerns for Mr Purves’ current mental health.

Alleged restriction of Applicant working in the rail industry

[102] The Applicant submitted that he will find it extremely difficult, and impossible in some instances, to find equivalent work with the work he had in the railways. Mr Purves submits he has been severely ‘hamstrung’ by Queensland Rail’s ban on him working on any of its infrastructure or projects. Queensland Rail owns and maintains a near monopoly on Queensland’s railway infrastructure outside of the Central Queensland Coalfields (centred around Mackay). With this being the case, it was claimed that Queensland Rail’s ban on Mr Purves will require Mr Purves to move to Central Queensland or interstate to find equivalent work with another rail company. With Mr Purves’ age this will be a drastic change to his and his family’s lifestyle.

[103] The Applicant submitted that Mr Purves’ difficulties in finding future employment are further compounded by Mr Purves’ limited education and formal certifications. Being a loyal employee of Queensland Rail for nearly 40 years has not equipped Mr Purves with skills and qualifications that employers would find useful outside of the railways. His limited reading and technology skills further place difficulties on his reemployment chances. Consequently, a termination of the employment of the Applicant was harsh.

[104] The Respondent submitted they have not placed a ‘ban’ on the Applicant working in the industry and do not hold a monopoly operation over the rail industry. The Respondent submits there are numerous roles within the rail industry outside the Respondent’s operations, and job opportunities within Roma with large employers, with this only expected to increase in the future.

Alleged disparity in discipline outcomes

[105] The Applicant submitted that In Capral Aluminium Ltd v Tagulima SAE [1997] FCA 854 it was very clearly demonstrated that where an employee is treated in a manner which is inconsistent with other employees, that the reason for the termination will be difficult to regard as valid. The Applicant submitted that since 2017 and the introduction of Queensland Rail’s new alcohol and drug management policy, there have been several employees who have not had their employment terminated following a positive drug and alcohol test in the workplace. It then flows from this that Mr Purves, in absence of a clear notice changing QR’s policy, is being treated in a harsher manner than those other employees. It was submitted that this disparity of treatment between Mr Purves and others cannot be held to be a valid exercise of disciplinary power.

[106] The Applicant submitted that Queensland Rail’s disciplinary policy permits management to discipline employees in several ways including:

i. Placing the employee on a performance improvement plan; and

ii. Issuing a formal warning to the employee; and

iii. Issuing a final warning to the employee; and

iv. Dismiss an employee.

[107] The Applicant submitted Mr Purves had not been disciplined for any form of misconduct in the workplace over the span of his 39-year career and therefore, it was open to Queensland Rail management to use their discretion to make a disciplinary finding that saw Mr Purves remain in the workplace. Consequently, it was submitted that the decision to terminate Mr Purves’ employment was unjust.

[108] The Respondent submitted that in the Applicant’s Submissions, the Applicant alleges that there has been a disparity of treatment between him and other employees of the Respondent who have allegedly not been dismissed following a positive drug and alcohol test in the workplace. The Respondent noted that the Applicant’s submission appears to be that, where there is disparity in treatment of employees, the reason for the termination will be difficult to regard as valid, that disparity cannot be held to be a valid exercise of disciplinary power and the decision to terminate the Applicant’s employment was unjust.

[109] The Respondent cited Darvell v Australian Postal Commission, where the Full Bench of Fair Work Australia stated: 13

“[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 advance 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.”

[110] The Respondent submitted that the Applicant has not experienced disparity in respect to the discipline outcome. Notwithstanding the Applicant has not advanced any evidence regarding this assertion, the Respondent notes that termination of employment has been the consistent outcome for breaches of the AOD Policy, specifically where employees have presented to work with the presence of alcohol in their system. In any event, even if there was evidence of one worker who is not dismissed in relation to a breach does not itself render the treatment of the Applicant unjust.

[111] The Respondent submitted that there is not, in this case, sufficient evidence to enable a proper comparison to be made. The Applicant has provided no evidence of any instances of differential treatment, let alone any evidence of the circumstances of the allegedly comparable cases. The Respondent submitted the Commission is unable to make any comparison between cases and respectfully, cannot find that that there has been disparity of treatment or consider disparity of treatment in support of a finding that the Applicant’s dismissal was harsh or unjust.

The Applicant’s training in the AOD Policy

[112] The Applicant submitted that Mr Purves’ lack of formal education and limited reading and writing ability is not unique within Queensland’s railways. However, as an employer, Queensland Rail has demonstrated a failure to properly accommodate for this fact in its training, especially when it comes to employer’s treatment of alcohol and other drugs.

[113] The Applicant submitted that Queensland Rail has a lawful duty under the Rail Safety National Laws to provide adequate training to staff about their alcohol and drugs policy.

[114] The Applicant submitted that Mr Purves only received one formal workshop in respect of Queensland Rail’s adoption of its new drugs and alcohol policy, in which, it was asserted, incorrectly, that no one could help an employee who tested positive to drugs and alcohol in the workplace.

[115] Further, the Applicant submitted that it is not explicitly established in Queensland Rail’s policies and standards that termination of an employee’s employment, due to a positive or non-negative AOD test result, is the only option available to the employer.

[116] The Applicant submitted that in an environment where functional illiteracy is present, and the employer is aware of it, it cannot be said in these circumstances that Queensland Rail ensured that Mr Purves was:

a. Educated to differentiate between fatigue and a low-level alcohol presence; and

b. Educated to know whether there was a zero-tolerance policy in place or if there were grounds for leniency.

[117] The Applicant submitted that it would be harsh and unreasonable for an employee to be dismissed when their employer had not adequately explained their policy changes.

[118] The Respondent submitted that the Applicant contends he has not been adequately trained in the AOD Policy that he breached, and this submission is inconsistent with the responses provided by the Applicant during the investigation process, where the Applicant readily admitted that he was fully aware of his obligations under the AOD Policy. Further, on the evidence, the Applicant had attended and successfully completed multiple re-fresher trainings on the requirements of Respondent’s AOD Policy and Code of Conduct. The Respondent submitted that the evidence does not weigh in favour of finding that the Respondent has not been trained the Applicant in the AOD Policy.

[119] The Respondent submitted that the Applicant accepts breaches of the AOD Policy are managed under the Discipline Specification and gives evidence that he was advised by a manager that dismissal would likely be the outcome of a breach of the AOD Policy. The Respondent acknowledges that other discipline outcomes are available under this Specification, however this does not restrict the Respondent’s ability to decide that termination of employment is an appropriate outcome. In this case, the Respondent considered other forms of disciplinary action, balanced mitigating circumstances and the seriousness of the Applicant’s conduct and decided that termination of the Applicant’s employment was appropriate and proportionate.

Alleged drinking culture (and alleged disparity continued)

[120] The Applicant submits there is a drinking culture within Queensland Rail. The Respondent rejects this assertion.

[121] The Respondent submitted that even if there was a drinking culture, which the Respondent denies, the Applicant’s evidence is that he was aware of his obligations under the AOD Policy and planned his drinking habits to comply with the AOD Requirement. The Respondent submitted that the Applicant gives no evidence as to how any drinking culture is relevant to the questions before the Commission.

[122] The Respondent submitted that to this end, in the case of Mr Noel Ross Dowling v Atwood Oceanics Pacific Limited [2011] FWA 1934, Williams C noted that, bearing in mind the hazards of the industry in which the employee worked, the terms of the employer’s DA Policy were “reasonable in all the circumstances”. The alcohol and other drugs policy did not rely on whether or not an employee was impaired or not and the employee’s positive alcohol urine test was a breach of the policy regardless of whether he was or was not impaired. When considering the criteria for harshness contained within the FW Act, FWA (as it then was) concluded that the employee’s positive urine test (0.04) provided the employer with a valid reason for his dismissal. The employee was notified of the reason and was given an opportunity to respond. The employee did not request a support person and the dismissal did not relate to unsatisfactory performance.

[123] The Respondent submitted that in relation to other matters considered by FWA before reaching its decision, Williams C noted that there was insufficient evidence before it for him to conclude an inconsistent approach by the employer towards other employees that previously failed the urine test. Consequently, the employee had not established that the termination of his employment was inconsistent with the disciplinary action applied to the others so as to be inherently unfair.

[124] The Respondent submitted that Williams C commented that as alcohol was freely available throughout society, employees of an employer that had a policy requiring employees to not attend the workplace with presence of alcohol in their system, were well aware that the employees “at times had to exercise self-control and not consume alcohol” when other persons did not have to show such restraint.

Applicant’s disclosed drinking patterns

[125] The Respondent submitted that the Applicant’s evidence both in his statement and throughout the investigation and disciplinary process is that the circumstances which resulted in his positive alcohol result were part of his usual routine which he had undertaken for approximately 30 years. This routine is described as the Applicant consuming half a bottle of Johnnie Walker Scotch between the 3.00pm and 8.00pm on evenings prior to work and then finishing drinking at 8.00pm to ensure he is fit to attend work the next day.

[126] The Respondent submitted that the Applicant’s evidence is that, on the night before his positive test, he did just that, drank half a bottle of Johnnie Walker Scotch between 3.30pm and 7.45pm and then went to bed at approximately 8.30pm. It is this routine which resulted in the Applicant returning a positive alcohol result on 24 March 2022.

[127] The Respondent submitted that the Applicant appears to contend that his weight loss, age, consumption of a light meal and poor sleep the night before the test may have resulted in him returning a positive alcohol result on this particular occasion. Further, he states that, on the morning of his positive result he had no concerns about his fitness for work, did not believe he was under the influence of alcohol and had previously passed AOD tests.

[128] The evidence of Dr Robin O’Toole is that the Applicant’s weight loss, age, consumption of a light meal and poor sleep would not have had any significant impact on the Applicant’s break down of the alcohol he consumed on 23 March 2022. If anything, given the Applicant’s pattern of drinking over 30 years, he would be expected to breakdown alcohol faster than the average person and may not feel impaired when he in fact was, which could explain why he had no concerns about his fitness for work. Further, based on an assessment of the Applicant’s admitted drinking on 23 March 2022, the Applicant would have either had to have consumed significantly more than 11 standard drinks (half a bottle of scotch) or finished drinking later than 7.45pm to return the result he did at 7.17am on 24 March 2022. Finally, Dr O’Toole observed that, based on the Applicant’s disclosed drinking routine and his assessment that he was fit to work on 24 March 2022, he would expect that there would have been multiple occasions over the 30 years where he would have returned a result of over 0.000% BAC at a similar time to his positive test on 24 March 2022.

Alleged faulty testing equipment/process

[129] The Respondent submitted that the Applicant claims that the testing device used by the testers on the morning of the Applicant’s positive BAC reading was faulty, not functioning properly and that it needed to be ‘recalibrated’. The Respondent submitted that they have provided extensive evidence to counter these claims and prove that they are false. The Respondent submitted that the evidence shows that the testing equipment was operating perfectly, and the processes used to test the Applicant (and others) on the morning the Applicant tested positive were entirely normal and fair to the Applicant. Relevantly, the Respondent notes:

(a) Mr Anderson’s initial test undertaken at or about 6.22am on 24 March 2022 returned a result of 0.008% BAC (not 0.08% BAC as the Applicant and Mr Anderson initially claimed).

(b) Mr Anderson’s BAC could have decreased from 0.008% to 0.000% BAC during the 20 minutes between his first test and second test.

(c) Mr Anderson did receive four ‘invalid’ results. Invalid results generally indicate that the donor (Mr Anderson in this case) was not blowing into the device correctly, not that there was an issue with the device itself. If there was an issue or error with the device, instead of the sample provided by Mr Anderson, an ‘error’ message would have appeared on the device however, it did not.

(d) Following the fourth invalid test, Ms Burraston restarted the device and obtained a valid test sample from Mr Anderson and a reading of 0.000% BAC. Ms Burraston did not recalibrate or change the device as is alleged by Mr Anderson.

(e) The Applicant did not undertake his test during Mr Anderson’s test. The Applicant took his first alcohol test at approximately 6.57am, approximately 15 minutes after Mr Anderson undertook his confirmatory test at 6.42am and returned a result of 0.000 BAC.

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.

COMMISSIONER

Appearances:

Mr Lucas Kennedy of the Rail, Tram and Bus Union for the Applicant.

Mr Sebastian Harris from Queensland Rail for the Respondent.

Hearing details:

2022

Brisbane (by Microsoft Teams Video)

18 and 19 October.

Final written submissions:

9 November 2022.

Printed by authority of the Commonwealth Government Printer

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 1   Exhibit 2.

 2   Exhibit 1.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 5.

 6   Exhibit 6.

 7   Exhibit 7.

 8   Exhibit 8.

 9   Exhibit 9.

 10   Exhibit 10.

 11   [2020] FWCFB 1373, at para [26].

 12   [2019] FWC 182; permission to appeal refused in [2020] FWCFB 884.

 13   Darvell v Australian Postal Commission [2010] FWAFB 4082

 14   (1995) 62 IR 371 at 373.