1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Lee Ward
v
Kimberley Ports Authority
(U2015/3259)
COMMISSIONER CLOGHAN PERTH, 24 SEPTEMBER 2015
Application for relief from unfair dismissal.
[1] This is an application by Mr Lee Ward (Mr Ward or Applicant) seeking a remedy
for alleged unfair dismissal from his former employer, Kimberley Ports Authority (KPA or
Employer).
[2] The application is made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] At the arbitral hearing, Mr Ward was represented by Ms E Palmer, Industrial Officer,
Maritime Union of Australia (MUA). Mr Ward gave evidence on his own behalf. Mr J
Cassar, Assistant Secretary, MUA Western Australian Branch, also gave evidence for the
Applicant.
[4] The Employer was represented by Mr R Wade, Special Consultant. Evidence on
behalf of the Employer was given by:
Mr C Kleiman, Acting Chief Executive Officer, KPA;
Mr S Baker, KPA Engineer; and
Mr A Pickering, Occupational Health and Safety Officer.
[5] This is my decision and reasons for decision on Mr Ward’s application.
RELEVANT BACKGROUND
[6] Mr Ward commenced employment as a casual employee with KPA in August 2012.
[7] From April 2013, Mr Ward was employed as a permanent employee in the position of
a Welder.
[8] Mr Ward’s employment was regulated by the Broome Port Authority Enterprise
Agreement 2012 Stevedoring and Maintenance (Enterprise Agreement).
[2015] FWC 5449 [Note: An appeal pursuant to s.604 (C2015/6954) was
lodged against this decision - refer to Full Bench decision dated 11 March
2016 [[2016] FWCFB 1067] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB1067.htm
[2015] FWC 5449
2
[9] KPA’s Fitness for Work Policy (FFW Policy) applied to Mr Ward during his
employment. The FFW Policy provides a maximum breath alcohol concentration of 0.00% at
the worksite.
[10] As a welder, Mr Ward was required to perform structural welding, and periodically,
operate a forklift. Operating a forklift requires a high risk work licence. From 11 to
14 August 2014 inclusive, Mr Ward failed to attend work, failed to notify his supervisor that
he would not be attending for work and failed to provide a valid reason for his non-attendance
on those days. Mr Ward received a formal written warning for his conduct.
[11] On 5 January 2015, Mr Ward was absent from work. Mr Ward did not notify his
supervisor that he would be absent but did provide a medical certificate on his return to work.
In relation to this conduct, Mr Ward:
met with Mr Baker;
acknowledged that he had no good reason for failing to notify his supervisor;
acknowledged that his conduct was unacceptable;
indicated to Mr Baker that he was having difficulties in his personal life;
was advised by Mr Baker that, if he needed time off or reduced hours, KPA would
be willing to consider any request; and
was advised that KPA and the MUA offer employee assistance programmes and
counselling, and that Mr Baker could provide Mr Ward with further information on
those programmes, if Mr Ward was interested.
[12] Mr Ward received a further formal written warning for his conduct in relation to his
absence on 5 January 2015.
[13] Mr Ward did not make any enquiries of Mr Baker relating to time off, reduced hours,
counselling or an employee assistance programme.
[14] On 27 January 2015, Mr Ward commenced work at 6:00 am.
[15] At 8:37 am, Mr Ward was subject to a random alcohol breath test.
[16] Immediately prior to the random alcohol breath test, Mr Ward was operating a forklift.
[17] Mr Ward’s initial alcohol reading was 0.026%.
[18] At 8:57 am, Mr Ward was tested again and found to have an alcohol reading of
0.020%.
[19] Alcohol self-testing facilities were available at the time Mr Ward commenced work on
27 January 2015. Mr Ward did not self-test.
[2015] FWC 5449
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[20] Shortly after the 8:57 am test, Mr Baker and Mr Pickering met with Mr Ward.
Mr Ward was advised that he had breached the Employer’s FFW Policy and was required to
leave the premises.
[21] Mr Ward was offered a taxi to return home. Mr Ward declined and drove himself
home.
[22] On 3 February 2015, Mr Ward and his representative, Mr Cassar, met with officers of
KPA. The content of the meeting on 3 February 2015 is considered later in this decision.
[23] At the meeting on 3 February 2015, Mr Ward was given correspondence from
Mr Kleiman which is entitled “Breach of Fitness for Work Policy” and concludes with the
following, “Given the above, KPA will be terminating your position”. However, the KPA
agreed to review its decision taking into account matters raised at the meeting.
[24] On 6 February 2015, Mr Kleiman forwarded to Mr Ward correspondence advising that
KPA had taken into account the mitigating matters raised at the meeting on 3 February 2015,
however, the decision to terminate his employment remained.
RELEVANT LEGISLATIVE FRAMEWORK
[25] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) ...
(d) ...”
[26] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at
s.387 of the FW Act and is as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the
person’s capacity or conduct (including its effect on the safety and welfare of
other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason
related to the capacity or conduct of the person; and
[2015] FWC 5449
4
(d) any unreasonable refusal by the employer to allow the person to have a
support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory performance
before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource
management specialists or expertise in the enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
APPLICANT’S SUBMISSION
[27] The Applicant submits that the dismissal was unfair because:
the breach of the FFW Policy was a genuine mistake and not wilful or deliberate;
the breach of the FFW Policy was as a result of a random test and not due to any
indication that he was impaired by alcohol;
the breach of the FFW Policy was relatively minor and did not result in any actual
harm;
the breach of the FFW Policy was a first time offence;
the Employer applied breaches of the FFW Policy in an inconsistent manner with
similar cases;
the Employer’s own culpability in failing to properly educate its workforce on the
FFW Policy and develop a culture of zero tolerance to breaches of the Policy;
with respect to the breach of the FFW Policy and the two previous written warnings,
he provided open and honest responses to all facts and allegations against him.
Further, he demonstrated a willingness to admit fault and take responsibility for his
actions as appropriate;
his length of service and generally good performance and disciplinary record;
the pre-determination of the outcome at the 3 February 2015 meeting, before seeking
his response to breach of the FFW Policy;
reliance of the two (2) previous formal written warnings in the letter of termination
of employment despite not raising those matters at the 3 February 2015 meeting;
his personal circumstances at the time;
[2015] FWC 5449
5
the economic and personal consequences of the dismissal; and
the disproportionate penalty imposed by KPA given the above circumstances and the
range of alternative penalties available in the FFW Policy.
EMPLOYER’S SUBMISSION
[28] The Employer submits that Mr Ward’s dismissal was fair because:
after nearly three (3) hours at work he had a blood alcohol reading of 0.020%;
the FFW Policy provides a maximum breath alcohol concentration of 0.00% at the
worksite for employees, contractors and visitors;
the FFW Policy states that a breach can result in the termination of the employee’s
employment;
immediately prior to the breath test, Mr Ward was operating a forklift which is
designated a high risk activity;
Mr Ward was aware of the FFW Policy. Further, Mr Ward had received copies of the
FFW Policy and acknowledged that he had read and understood the Policy;
in breaching the FFW Policy, Mr Ward placed his own safety and that of his work
colleagues at risk;
Mr Ward was aware, or ought reasonably to have been aware, that drinking to the
amount he had drank the day before, and presenting for work at 6:00 am, could result
in a breach of the FFW Policy;
despite his awareness, Mr Ward did not make use of the self-testing facilities at the
workplace to ensure he was fit to attend work;
a breach of the FFW Policy may constitute a valid reason for termination of
employment, even it is the employee’s first contravention;
the fact that a breach of the Policy may lead to dismissal was discussed at the
Employer’s Occupational Health, Safety and Environment Committee (OHS
Committee), at which employee representatives attend;
it was generally known that the FFW Policy was being enforced strictly as two
employees had been dismissed in or around August 2014;
it was generally known that an employee had been dismissed in December 2014 for
a first time breach of the FFW Policy;
Mr Ward’s previous disciplinary record;
Mr Ward’s relatively short period of service; and
[2015] FWC 5449
6
in all the circumstances, the dismissal was not disproportionate.
CONSIDERATION
[29] Section 387 of the FW Act sets out the matters which the Commission must take into
account in determining whether a dismissal was “harsh, unjust or unreasonable”. In seriatim,
they are as follows.
s.387 (a) - was there a valid reason for the Applicant’s dismissal?
s.387 (h) – other matters
[30] A valid reason for dismissal is one that is “sound, defensible or well founded and not
capricious, fanciful or spiteful”. The authority for this approach is found in the often cited
case of Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 at page 373 which reads
as follows:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
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 reasons must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are treated fairly’.”
[31] A valid reason for dismissal attempts to balance, in a practical way, the needs of
employees and employers.
[32] When the reason for the dismissal relates to the employee’s conduct, it is necessary for
the Commission to determine, on the balance of probabilities, whether the alleged conduct
occurred, and if so, whether it was a sufficient reason for termination1. Further,
“The question of whether the alleged conduct took place and what it involved is to be
determined by the Commission on the basis of the evidence in the proceedings before
it. The test is not whether the employer believed on reasonable grounds after sufficient
enquiry that the employee was guilty of the conduct which resulted in the
termination”.2
[33] To begin my consideration, I think it is necessary to say something, of a general nature
relating to how I have approached my decision and reasons for decision. Judging by the
written closing submissions, it would appear that this application relates to a refined legal
consideration of case law; it doesn’t. Where the case law is relevant and on point, I have
taken it into consideration. However, at its core, Mr Ward’s dismissal concerns human
1 Brink v TWU PR922612 at paragraph [7]
2 King v Freshmore (Vic) Pty Ltd S4213 at paragraph [24]
[2015] FWC 5449
7
behaviour. It concerns his decision making and the consequences of those decisions. Within
a context, it is no more complicated than that.
[34] This application highlights, in some respects, the difference between recollection and
reconstruction.
[35] Despite the substantial documentary material, very little related directly to the event
which led to Mr Ward being dismissed.
[36] For the purposes of context, the primary document which requires my consideration in
this application is the Employer’s FFW Policy.3
[37] The objective of the FFW Policy is to ensure that an employee is able to “perform
work in a manner that does not pose a risk, compromise or threaten the health and safety of
themselves or others”.4 In achieving this objective, the FFW Policy is supported by alcohol
and drug screening.
[38] The FFW Policy explains that, “the use of alcohol and other drugs becomes an
occupational safety and health issue in the workplace as it affects a person’s ability to exercise
judgement, coordination, motor control, concentration and alertness leading to an increased
risk of error, injury or illness”.5
[39] The FFW Policy provides screening for alcohol and drugs: prior to employment; on a
random basis; for cause; incident based and self-screening. I shall say more on self-screening
later in this Decision.
[40] The maximum breath alcohol consumption permitted for employees is 0.00% or 0.000
grams of alcohol in 210 litres of breath.
[41] If there is an initial positive alcohol reading, the person is retested after 20 minutes.
Should the employee still have a positive reading, the consequences are set out. One such
consequence is termination of employment.
[42] On 7 August 2012, Mr Ward confirmed that he had read, understood and agreed to be
bound by the content of the FFW Policy. Mr Ward confirmed, in his oral evidence, what he
had signed in August 2012.
[43] Mr Ward is not a young man. He has worked in the metal fabrication industry for
approximately 30 years. Mr Ward has worked for himself, in the mining sector and in the
construction industry.6
[44] A FFW Policy or something similar was not foreign to Mr Ward. The Applicant
conceded that the policies of other employers where he had worked, prohibited the
consumption of alcohol while at work or to attend to work under the influence of alcohol.7
3 Exhibit R4 (4)
4 Exhibit R4 (4)(1)
5 Exhibit R4 (4)(4)
6 Transcript PN132
7 Transcript PN133
[2015] FWC 5449
8
Mr Ward had no reason to consider that the KPA would treat a transgression of the FFW
Policy any different to his previous employers.8
[45] In Byrne v Australian Airlines Limited, “harsh, unjust or unreasonable” was explained
by McHugh and Gummow JJ as follows:
“…It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may have
been unreasonable because it was decided upon inferences that could not reasonably
have been drawn from the material before the employer, and may be harsh in its
consequences for the personal or economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”9
[46] I now turn to the issue of whether the dismissal was harsh or unreasonable as
submitted by the Applicant.
[47] Mr Ward understood the FFW Policy, its application and the consequences of a
breach. I now will consider the circumstances prior to Mr Ward recording a positive alcohol
breath test.
[48] Mr Ward does not consider himself an excessive drinker.10 Most days after he finishes
work he has a beer.11 At a party, Mr Ward would have more than a few.12 Having 10 beers is
“not really” a good party. However, having 20 cans of full strength beer is a big day and that
has happened on a few occasions.13
[49] On Australia Day, Mr Ward had family visiting from Perth. For approximately for
12 hours, Mr Ward’s evidence is that, he consumed 20 cans of full strength beer.
[50] Mr Ward variably states in evidence that he stopped drinking because he “had
enough”14, was “probably bit tired”15 and “because I had work the following day”16.
[51] Mr Ward’s evidence was that he went to bed at 10:30 pm and generally wakes up at
3:00 am most mornings.17 In such circumstances, Mr Ward’s evidence was as follows:
“Well, if you woke up at 4 o’clock or 3 o’clock or whatever the case may be, I want to
suggest to you that you would probably still have been feeling the effects of
8 Transcript PN134 and PN135
9 (1995) 185 CLR 410 at 465
10 Transcript PN197
11 Transcript 201
12 Transcript PN204
13 Transcript PN209
14 Transcript PN321
15 Transcript PN225
16 Transcript PN228
17 Transcript PN234
[2015] FWC 5449
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alcohol?---But if I felt okay when I went to bed and then I felt okay when I got up in
the morning, and I felt okay when I was at work. I didn’t feel like I was affected by
alcohol.”18
[52] Mr Ward did not deviate from his evidence that when he attended work on 27 January
2015 at 6:00 am, he felt “fine” or “okay”.19 Objectively, such evidence stretches the meaning
of “okay” and “fine”.
[53] I wish to make two observations regarding Mr Ward’s evidence that he felt “okay” or
“fine”. Firstly, and obviously, this is not the test in the FFW Policy. The test in the FFW
Policy is not the subjective feelings of the individual employee but the scientific measurement
of the breath/alcohol content.
[54] Screening for alcohol breath concentration on the basis of the employee’s feelings
would be meaningless. It could be reasonably expected that all those screened, would claim
that they were fine or okay.
[55] Secondly, it seems to me a person’s feelings, whether reasonable or unreasonable,
demonstrate the existence of feelings, and do not prove the Applicant’s assertion that “the
breach of the Policy [FFW Policy] was a genuine mistake and was not wilful or deliberate”.20
[56] To accept feelings, of itself, as a proof of a matter, invites, in my view, a real concern.
Such feelings are possibly self-serving evidence and a reconstruction of events, rather than a
recollection. If Mr Ward’s evidence was put to the “front bar” that after 20 cans of full
strength beer, and 4.5 hours of sleep, he felt fine - it would be greeted with that very
Australian saying relating to animal manure.
[57] In my view, the factual matrix leads to a different conclusion regarding Mr Ward’s
behaviour.
[58] Mr Ward knew when he was drinking that he had to attend work the following day.
Mr Ward knew, from previous work experience, and the Employer’s own FFW Policy, that he
could not attend work with a breath alcohol reading beyond zero. He was also aware that
other employees had been recently dismissed from KPA for having breath alcohol readings
beyond zero (which will be discussed in further detail later in this Decision). Finally, and
importantly, the Employer provides, at the worksite, self-test breath alcohol equipment which
Mr Ward did not utilise on the morning he was randomly tested. In my view, these facts are
far more determinative of whether the breach of the FFW Policy, was a genuine mistake
rather than Mr Ward’s feelings of being “okay” or “fine”.
[59] Having drunk 20 cans of full strength beer on the day before going to work, Mr Ward
had a choice of at least two (2) alternatives – going to work or staying at home. It is of little
benefit speculating on what would have occurred if he had stayed at home; what is certain is
that he would not have been subject to a random alcohol breath test.
18 Transcript PN237
19 Transcript PN244
20 Applicant’s closing submissions 28 August 2015 (4)
[2015] FWC 5449
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[60] On making the choice to attend work, Mr Ward, despite allegedly feeling “fine” or
“okay”, faced the risk of having to undertake an alcohol breath test and the consequences of
returning a positive result. For whatever reason, Mr Ward made the decision to attend work
with the attendant consequences.
[61] The consequences for Mr Ward were that he initially alcohol breath tested at 0.026%
and 20 minutes later, at approximately 9:00 am, 0.020%. It is not in dispute that when
Mr Ward commenced work at 6:00 am, the alcohol concentration would have been higher.
[62] The Applicant accepts that a first time breach of an employer’s alcohol and drug
policy may constitute a valid reason for dismissal. However, the Applicant contends that
dismissal “would usually only constitute a valid reason or dismissal where the breach was
substantial and wilful”.21
[63] I have dealt with the issue of wilfulness above and now turn to the issue of whether the
breach was “substantial”. In this respect, Mr Ward relies on a comparison with other
stevedoring operations where it is alleged that a blood alcohol concentration of 0.020% would
not constitute a breach of the employer’s drug and alcohol policy. The evidence supporting
this contention was brief and not put forcefully.
[64] I have no hesitation regarding the veracity of Mr Cassar’s evidence with respect to
other FFW policies. However, the comparison with other worksites does not remove the facts
that led to Mr Ward recording the alcohol reading he did. Further, even if Mr Ward was
aware of the practices in other worksites, whether this would have affected anything he did on
the day before in drinking 20 cans of beer before attending work.
[65] The FFW Policy makes it plain that a consequence of breaching the Policy of 0.00%
alcohol reading includes termination of employment. It seems to me that because the
Employer’s FFW Policy is not couched in terms of allowing up to a 0.02% alcohol reading
before a breach is incurred, the Applicant is attempting to make up what he sees as deficiency
in the Policy by the use of comparators elsewhere.
[66] Ultimately, Mr Ward is governed by the FFW Policy and it is its content that matters,
not what applies in other worksites. Without labouring the point further, I have no evidence
of FFW policies elsewhere and how they are applied in the workplace. Finally, while
Mr Cassar’s evidence gives context, I am not prepared to find that the breach was
insubstantial on the material before the Commission. The breach is what it was.
[67] The Applicant contends that the Employer’s reliance on the health and safety risk
posed by the Applicant’s misconduct is undermined by a number of factors. I now refer to
those factors.
[68] The Applicant asserts that the Employer cannot soundly or defensibly rely on a first
time breach of the FFW Policy, as a valid reason to dismiss him, when it failed to promote the
Policy and enforce it.
[69] While the Employer concedes, with hindsight, it could have done more to increase
employee awareness of the Policy and its application, the Applicant’s representative relies on
21 Applicant’s closing submissions (4)
[2015] FWC 5449
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an assumption that if the Employer had raised such awareness, Mr Ward would not have
breached the FFW Policy. I am not prepared to agree to such a proposition. Mr Ward’s
evidence is that he read and understood the Policy and its consequences. Further, his primary
“mitigation” argument is not that he was unaware of the Policy; it was a case of “confusion”
regarding the Policy.
[70] Mr Ward was not only aware and understood the FFW Policy, his long workforce
experience made him knowledgeable of similar policies. More importantly, Mr Ward’s
evidence was that previous dismissals for breaching the Policy were discussed among the
workforce.22 For this reason, I find the submission regarding the lack of awareness as
wanting. I now turn to the issue of whether there was some confusion regarding the FFW
Policy.
[71] When asked in cross-examination, what was the “confusion” with the FFW Policy,
Mr Ward explained:
“Because there’s people there that are - had that happen [breaches of the FFW Policy] to
them and they’re still employed there.”23
[72] Further:
“And how did that affect the way you approached matters?---Because the confusion in
the policy. They say three strikes or you - they get this or they get that. Well now
there’s zero tolerance. But a lot of people don’t understand the policy. That’s all I’m
saying.”24
[73] Mr Ward gave evidence that he was confused. I have no other evidence from the
workforce that they were confused. Notwithstanding that Mr Ward’s confusion may be
self-serving, the alleged confusion can be approached two ways.
[74] Firstly, when it was put to him that one employee had been dismissed for a first
offence of breaching the FFW Policy zero breath alcohol content, Mr Ward’s evidence was
that he was aware of the dismissal but understood that this was not the employee’s first
transgression of the FFW Policy.25
[75] This evidence is reflective of Mr Ward’s awareness of the consequences of employees
breaching the FFW Policy. I now turn to the second issue which is, in my view, the inability
of the Applicant to rely on his own misunderstanding as a mitigating factor. If the Applicant
had some confusion regarding the consequences of breaching the FFW Policy (“first offence”
versus “three strikes”) , it would seem reasonable that he would access the self-test equipment
available to employees at the worksite to mitigate any risk of breaching the policy.
[76] Mr Ward agreed that the ability to self-test provides a “free pass” in relation to
disciplinary action.26 However, on 27 January 2015, he did not think of self-testing,27 as he
22 Transcript PN193
23 Transcript PN184
24 Transcript PN195
25 Transcript PN273
26 Transcript PN166
[2015] FWC 5449
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felt he had no need,28 or had no reason to suspect that he would return a positive alcohol
reading.29 Importantly, Mr Ward gave evidence that he had never self-tested.30
[77] With respect to the issue of confusion, Mr Cassar gave evidence that following the
dismissal of two employees in August 2014, the MUA held a meeting of its members in
December 2014. Those present at the meeting alleged that there had been a change to the
FFW Policy without consultation with the workforce. As part of the discussion, Mr Cassar
was questioned on whether KPA had now adopted a “one strike policy”.31 On the
documentary evidence, I am satisfied that there was no material change to the content of the
FFW Policy.
[78] Mr Ward initially gave evidence that he was present at the meeting which Mr Cassar
addressed in which the FFW Policy was discussed. Subsequently, Mr Ward could not say
whether he was or was not at the meeting.32 Having considered Mr Ward’s evidence, I am
satisfied that he was present, and those present discussed and knew that two employees had
been recently dismissed for a breach of the FFW Policy.33
[79] I now turn to another mitigating factor. At the meeting on 3 February 2015, Mr Cassar
raised with the Employer that one of the reasons that Mr Ward’s employment should not be
terminated was because he was having a “difficult patch”.34
[80] The facts are that Mr Ward failed to attend work between 11 and 14 August 2014 and
did not contact the relevant personnel to advise that he would not be attending work.35
[81] In the “No show for work” correspondence of 21 August 2014, Mr Ward was
informed of the necessity to contact KPA to enable the Employer to make alternative
arrangements. Mr Ward was advised that if there was a repeat of this conduct, his
employment may be terminated.
[82] On 5 January 2015, the Applicant failed to attend work and did not contact his
Employer regarding the absence. Mr Ward’s failure to attend work resulted in the
maintenance team not being able to operate effectively on that day.
[83] By correspondence dated 14 January 2015, Mr Ward was advised that this was his
second warning and if there was a repeat of the conduct, his employment may be terminated.
[84] With respect to his absence in August 2014, Mr Ward states “I did not have any good
reason for failing to attend work on this day (sic) and I acknowledged that at the time”.36
Concerning the January absence, Mr Ward concedes that he did not notify his supervisor but
27 Transcript PN171
28 Transcript PN168
29 Transcript PN169
30 Transcript PN162
31 Transcript PN467
32 Transcript PN262
33 Transcript PN276
34 Exhibit R4 (12)
35 Exhibit R4 (7)
36 Exhibit A6 (21)
[2015] FWC 5449
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did provide a medical certificate on return to work. Mr Ward acknowledged that he had no
reason not to notify his supervisor and “had done the wrong thing”.37
[85] In discussing his absences, Mr Ward gave evidence that his manager informed him
that he could take time off or reduce his hours. His manager also suggested that he utilise the
services of the Employer’s counselling services as he was having a “rough time”
domestically. Mr Ward chose, for his own reasons, including financial, not to take up his
manager’s suggestions.
[86] I now turn to the Applicant’s submission that the FFW Policy was applied
inconsistently, and consequently, his dismissal was harsh and unfair, even in circumstances
where the Employer had a valid reason to terminate his employment.
[87] When I refer to other employees who have been dismissed for a breach of the
Employer’s FFW Policy, I will refer to them as Employees A, B, C and so forth. From the
circumstances, the parties know who I am referring to.
[88] Mr Ward’s evidence refers to six (6) employees who have returned positive drug and
alcohol tests and retained their jobs. Mr Ward states, “I thought that the KPA applied a ‘three
strikes’ role to positive blood and alcohol readings, whereby you would be terminated after
three warnings”38.
[89] My first and obvious observation is that such an alleged application is not contained in
the FFW Policy.
[90] Prior to Mr Ward’s dismissal, the most immediate termination of employment for
breach of the FFW Policy was Employee A. Employee A was not a member of the MUA.
Employee A was dismissed for what is described as a “first time” breach of the FFW Policy.
In such circumstances, there can be no argument regarding inconsistent application of the
FFW Policy. Further, Employee A’s dismissal was recent and relevant to Mr Ward’s
dismissal.
[91] Employee B was a casual employee of the KPA and tested positive to drugs in May
and November 2010. Employee B was dismissed following a further breach of the FFW
Policy in August 2014. The notable difference, between Mr Ward and Employee B, is that
Employee B was a casual employee and the first two breaches related to drugs (the third
breach is not stated). Employee B’s breaches are historical (two (2) years before Mr Ward
commenced employment). The more recent breach of the FFW Policy resulted in dismissal.
[92] Employee C was also a casual employee. His first breach of policy was in March
2010. In November 2010, Employee C refused a drug test which was deemed a breach of the
FFW Policy. In August 2014, he also breached the FFW Policy for unstated reasons and was
dismissed. Similar to Employee B, the difference between his circumstances and Mr Ward is
notable.
[93] Employee D breached the FFW Policy in December 2010, May and June 2013 and
remains employed. On the last occasion of the breach, Employee D was required to attend
37 Exhibit A6 (19)
38 Exhibit A6 (17)
[2015] FWC 5449
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counselling, issued with a final warning and required to be screened at commencement of
work for alcohol, for three (3) months.
[94] Employee E breached the FFW Policy in June 2010 relating to alcohol content and
remains employed. Employee E’s breach is historical.
[95] Employee F breached the FFW Policy in June 2010 in relation to alcohol content and
remains employed. Employee F’s breach is historical.
[96] To the MUA’s credit, Mr Cassar states that the Union usually will not assist a member
who is disciplined, or whose employment is terminated, for being affected by drugs or alcohol
at work.39 This is particularly the case for Mr Cassar, because he has responsibility for
Workplace Health and Safety within the Union.
[97] However, in this instance, the MUA has provided assistance to Mr Ward for a number
of reasons, but “most importantly”, because Mr Cassar was aware of the above employees
who had been disciplined, rather than dismissed for breaches of the FFW Policy. Mr Cassar
felt that Mr Ward’s dismissal was inconsistent and unfair.40
[98] Mr Cassar’s argument, in my view, is not soundly based. In short, it attempts to
“handcuff” the Employer to the employees’ understanding of the past, while at the same time,
avoiding the facts which had occurred since August 2014 onwards.
[99] The Applicant’s argument is that there should be symmetry with respect to the
consequences of his misconduct and other employees. Firstly, the argument is selective and
does not refer to the most recent, and relevant employee who was dismissed for a “first
offence” – Employee A.
[100] Secondly, the Applicant’s reference to Employees B and C relies upon the proposition
that both employees were dismissed following a third breach of the FFW Policy. That
proposition itself, relies upon the Employer actively and demonstratively, applying a
numerical approach to breaches of the Policy.
[101] If the Employer applied a strict numerical approach to the breaches of the FFW Policy,
it is notable that Employee D breached the Policy on three occasions between December 2010
and June 2013 and still remains employed.
[102] In my view, it appears that the Employer has approached breaches of the FFW Policy
on a case by case basis. In reaching this conclusion, I rely on the lack of symmetry between
breaches of the Policy by Employees A, B, C and D and the Employer’s response.
Employees E and F breaches are over five years old and, if included, only add to the
conclusion that the Employer adopted a case by case approach – it does not demonstrate a
“three strikes conclusion”.
[103] The Employer’s FFW Policy sets out a range of responses to a breach of the Policy –
one of which is dismissal. The breaches demonstrate that the Employer did not merely use a
numerical approach to application of the Policy.
39 Exhibit A8 (4)
40 Exhibit A8 (6)
[2015] FWC 5449
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[104] What appears to have happened is that the workforce simplified the application of the
FFW Policy to a “three strikes” approach. However, the Policy should not, and could not, be
approached in such a way. Just as a person can be tall, small, slim, fat, rich, poor, black or
white – the FFW Policy has to cover a wide variety of circumstances. The Applicant’s
numerical approach to the Policy would mean that 0.01% is treated the same as 0.15% alcohol
reading. Such a simple numerical approach does not make sense – especially as it relates to
safety on the waterfront.
[105] Finally, policies of any kind do not exist in a vacuum. From the evidence, the KPA
Board expressed concern to management that it was not meeting safety requirements on the
wharf. Breaches were occurring and there was a need to change management’s application of
the FFW Policy.
[106] In closing submission, the Applicant’s representative states the Employer’s “lack of
consistency is important because it undermines the reasoning that [it] relied on in support of
the decision to dismiss the Applicant. Hence evidence on whether or not a change in
enforcement of the Policy was generally known amongst the workforce is ultimately a red
herring.” I agree with the latter submission. With respect to the former submission
concerning other employees cited, the evidence demonstrates that there was no consistency,
numerical or otherwise.
[107] In summary, there is no evidence to demonstrate that Employees B and C were
dismissed because it was their third breach of the FFW Policy; they were dismissed because
of a breach of the Policy. Secondly, Employee A was dismissed for a “first offence” breach
of the Policy. Thirdly, I am satisfied that Mr Ward was present at the meeting “under the
tree” when employees discussed whether or not it was a one (1) or three (3) strikes application
of the FFW Policy. Further, dismissal as a result of a breach of the Policy was known to the
workforce more generally through the OHS Committee meetings and as a result of recent
dismissals.
[108] The Employer’s representative submits that a review of the authorities relating to
consistency of treatment reveals few clear statements of principle.41 I agree. Claims of
unfairness by analogy with others are fraught with difficulties. An immediate examination of
other employees with whom the Applicant makes a comparison, indicates obvious
dissimilarities. On the bare facts I have been given, it would appear that there are individual
differences. Unless there are two or more employees each with identical circumstances and
one is dismissed and another not, comparison, or consistency of treatment, can be imperfect.
Rarely do identical circumstances exist; hence the reason, in my view, of the hesitancy of
tribunals to set out such clear statements of principle regarding consistency.
[109] Consistency of treatment is, on submission, often met with the retort: you are not
comparing “apples with apples” – as happened in this case. The reason for the retort is that
the facts of individual cases are expected to be and are often, quite different.
[110] Accordingly, I am not satisfied that the inconsistency comparison made by the
Applicant and resulting unfairness is made out. In my view the unfairness or otherwise of
Mr Ward’s dismissal, should be primarily confined to its own facts and evidence.
41 Respondent’s closing submissions (23)
[2015] FWC 5449
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[111] The facts of Mr Ward’s conduct are largely not in dispute.
[112] In conclusion, it is necessary to say something about the proportionality or harshness
of the Employer’s response to Mr Ward’s misconduct. At a very basic level, employees are
being asked to behave responsibly at the workplace. This is not a case of an employee
responding to production quotas, deadlines or short staffing by undertaking an unsafe act.
This was an employee behaving as he did and knowing the acceptable standards at the
workplace. Mr Ward was randomly tested once every two months – he knew there was a
chance he would be tested and he was. This is not behaviour and consequences, which can be
“offloaded” onto the Employer.
[113] The Employer is required, by statute, to set out and enforce standards of workplace
health and safety. The KPA has done so. To enforce its standards of a 0.00% alcohol
reading, it provides employees with a “free pass” of self-testing. The self-testing can be done
anonymously and without recrimination. Self-testing is the equivalent of “take five” or the
requirement to wear PPE. In such circumstances, it is difficult to come to a conclusion that
the Employer’s response to Mr Ward’s misconduct was harsh or disproportionate.
[114] I am satisfied that the Employer had a sound, defensible and well-founded reason to
dismiss Mr Ward. The Employer had a valid reason, and I am also satisfied that the dismissal
was not harsh, unjust or unreasonable in the circumstances. Alcohol and safety on the
waterfront do not mix. I understand, as I am sure the employees at the KPA understand, the
potential for workplace accidents increase when alcohol is in the blood stream of employees.
The FFW Policy’s simple objective is to make the workplace safer, the Policy is one way of
achieving that objective. Mr Ward breached the Policy in very disapproving circumstances.
s.387(b) - notification of the reasons for termination of employment
s.387(c) - opportunity to respond
[115] The parties agree that at a meeting on 3 February 2015, Mr Ward was advised that his
employment was being terminated for a breach of the FFW Policy and given a letter
terminating his employment.
[116] Mr Ward apologised for his actions and, as I have previously set out, stated that he
genuinely believed he was “under” the alcohol limit when he attended work on 27 January
2015.
[117] Mr Cassar raised a number of matters relating to Mr Ward’s dismissal. The Employer
agreed to take “on board” those comments and advise Mr Ward accordingly.
[118] On 6 February 2015, the Employer forwarded to Mr Ward correspondence which
advised him that the KPA had carefully considered Mr Cassar’s comments, but had decided
that his termination of employment remained.
[119] The MUA, on behalf of Mr Ward, submitted that the Employer had already reached a
decision to dismiss the Applicant on 3 February 2015, and the meeting and the consideration
afterwards, was essentially a course of action to dissuade the KPA from its original position.
I agree.
[2015] FWC 5449
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[120] While I am of the view that the MUA is correct, and a better procedural process could
have been adopted, the conduct which led to Mr Ward’s dismissal was indisputable and the
relevant matters raised by Mr Cassar only went to mitigation. In this respect, the Employer
would have been “damned” if it had not listened and considered Mr Cassar’s comments. The
KPA is also now being “damned” for doing what it did in considering Mr Cassar’s comments
and not changing its position.
[121] Although not the ideal manner to progress Mr Ward’s dismissal, I satisfied that the
Employer genuinely committed to review its decision to dismiss Mr Ward. However, when I
consider this action in conjunction with the reason for his dismissal and all the attendant
circumstances, I am in no doubt that this is one of those applications where a defect in process
should not triumph over the substance of the dismissal. For this reason, I am not satisfied that
the gap in procedural fairness is sufficient to warrant the dismissal being harsh and
unreasonable.
s.387(d) - support person
[122] Mr Cassar was present as Mr Ward’s support person at the meeting on 3 February
2015.
s.387(e) - unsatisfactory performance
[123] Both parties are of the view that the precise reason for Mr Ward’s dismissal did not
relate to his unsatisfactory performance. They are correct.
[124] However, the Applicant states that although he had received prior warnings for failing
to attend work without giving proper notification, these warnings did not go to unsatisfactory
performance. While this again might be correct as it relates to Mr Ward’s performance as a
welder, it is not correct as it relates to his overall performance as an employee.
s.387(f) - size of enterprise
s.387(g) - Human Resources
[125] KPA is a relatively large employer and has access to dedicated human resources
personnel and legal advice.
CONCLUSION
[126] In conclusion, for the reasons set out above, I am satisfied that Mr Ward’s dismissal
from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the
application must be dismissed. An Order to this effect is issued jointly with this Decision.
COMMISSIONER
[2015] FWC 5449
18
Appearances:
E Palmer, on behalf of the Applicant.
R Wade, on behalf of the Employer.
Hearing details:
2015:
Broome,
7 August.
Final written submissions:
Applicant: 28 August 2015 and 8 September 2015.
Employer: 3 September 2015.
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