[2010] FWA 2282

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

Timothy Presbury
Australian Rail Track Corporation Limited



Application for unfair dismissal remedy – whether valid reason – whether termination a fair sanction – assessment of seriousness of conduct – breach of company policies regarding drug and alcohol consumption and honesty - Fair Work Act ss 387, 390, 391, 392, 394.


[1] This decision concerns an application for an unfair dismissal remedy pursuant to s 394 of the Fair Work Act 2009 (the Act) filed Mr Timothy Presbury in relation to the termination of his employment by Australian Rail Track Corporation Limited (ARTC). The application alleges that Mr Presbury’s termination was harsh, unjust or unreasonable. Mr Presbury seeks reinstatement to his former position without loss of entitlements.

[2] The matter failed to settle by conciliation and Mr Presbury elected to proceed with his application.

[3] An arbitration conference was conducted in Lismore on 4 and 5 of February 2010. Mr Klineberg, from the Rail, Tram and Bus Union, represented Mr Presbury and Mr Woods with Ms Lesiw represented ARTC.

[4] At the conclusion of the conference I indicated my views about the matter. I addressed the items of conduct relied upon by the employer to justify its decision to terminate Mr Presbury’s employment and indicated my general conclusion that I considered that the termination was harsh, unjust and unreasonable. I requested the parties to provide further written submissions on the question of remedy. This decision elaborates on my reasons for finding that the termination was harsh, unjust and unreasonable and addresses the question of remedy.


[5] Mr Presbury was employed as an Infrastructure Maintainer, based at Casino, with ARTC from 8 September 2008. At the time the events leading to his dismissal took place, he was performing work on the railway line between Taree and Wauchope and staying in a motel in Wauchope with his supervisor and other members of his work group.

[6] On 3 September 2009 Mr Presbury and his colleagues were rostered to finish work at 3.30pm but completed work early, between 1.30pm and 2.30pm, and were permitted to return to Wauchope. Most of the work group were due to return to Casino the following day. Mr Presbury was one of the drivers of the company vehicle used to transport employees. He drove the vehicle, a Canter, back to the motel in Wauchope, with four other ARTC employees as passengers. The four passengers were Mr David Loy, Mr Travis Falls, Mr Johnothan Gaudion and Mr Todd Bingle. Mr Presbury also had possession of a company owned mobile phone.

[7] The trip from Taree to Wauchope was approximately a 50-60 minute drive. At the commencement of the trip Mr Loy suggested that they stop off at a liquor store in Taree. Mr Presbury did so. At the liquor store, Mr Loy and Mr Bingle got out of the vehicle and purchased a carton of beer and some ice. The carton of beer was opened and some beer and ice was placed in an esky that was in the vehicle’s cabin, owned by Mr Loy. All four passengers consumed beer on the drive to Wauchope. ARTC alleges that Mr Presbury did also.

[8] Mr Gaudion stated that passengers, other then him and Mr Presbury, threw empty beer bottles out the windows of the company vehicle at road signs while the vehicle was still in motion.

[9] Due to the early finish that day the trip occurred during the employees rostered work time. They arrived at Wauchope at the conclusion of their rostered work time. On arrival at Wauchope more alcohol was consumed. A second carton of beer was purchased locally. Mr Presbury did not consume any of the beer purchased. He consumed cans of Rum and Coke he had purchased for himself. During this time at the motel, Mr Loy and Mr Falls were both warned by Mr Searle, the work group’s Leader, over their raucous behaviour.

[10] Later that evening all workers, except for Mr Gaudion who declined to join them, walked to a nearby hotel where alcohol continued to be consumed. They returned to the motel between 9.30pm and 10.00pm. Shortly thereafter, Mr Presbury went to his room that he was sharing with Mr Bingle and went to bed.

[11] Mr Loy visited Mr Gaudion’s room at some time between 11.00pm and midnight. Mr Gaudion said that Mr Loy had requested he drive him and Mr Falls to Newcastle, then to Taree, in his personally owned vehicle. Mr Gaudion declined this request. He recalls that Mr Loy at the time was slurring his words, swaying and had bloodshot eyes, though was not aggressive or persistent.

[12] Mr Presbury was woken by Mr Loy knocking on his room door at around the same time. Mr Presbury initially ignored the knocking but opened the door when the knocking continued. Mr Loy was at the door. He requested the keys to the company owned vehicle and mobile phone. Mr Presbury initially refused. Mr Loy repeated his request and both items were handed over. Mr Presbury did not ask Mr Loy the reason for wanting the car keys and phone. Mr Presbury said that he handed the items over so that he did not wake up his colleagues, particularly, Mr Searle, who was in the room next door. After handing over the items Mr Presbury went back to bed.

[13] At approximately 5.00am the next morning Mr Presbury was woken up by Mr Searle knocking on his room’s door, wanting to know where the company vehicle had gone. Mr Presbury informed Mr Searle that he had given the keys to Mr Loy the night before and he was not aware of the vehicle’s location.

[14] The investigation into the incident began 4 September 2009. During the investigation it was discovered that the night before Mr Falls had driven the company vehicle, with Mr Loy as passenger, to a McDonald’s store in Taree. The store was closed and the men decided to sleep in the company vehicle overnight. Once the vehicle had been located and returned, Mr Presbury drove himself, Mr Loy, Mr Falls and Mr Bingle from Wauchope to Coffs Harbour and Casino. Mr Gaudion had already left the motel in his own vehicle earlier that morning to work his shift in Taree commencing at 6.00am.

[15] Later that day Mr Presbury provided a statement in relation to the past evening’s events as part of an interview that was conducted by Mr Reedman, Team Manager, Casino. In this statement Mr Presbury made no reference to the stop off at the liquor store in Taree or the events that took place during the drive from Taree to Wauchope.

[16] On 10 September 2009, Mr Presbury attended a second interview, this time conducted by Mr Ogilvy, Delivery Manager, North and Mr Reynolds, a Human Resources Advisor. Mr Presbury was asked to account for the events of 3 and 4 September 2009 from the time he finished work. He provided a detailed account of events from the time the employees arrived in Wauchope. His account did not include events prior to their arrival in Wauchope. Mr Presbury says that he did not refer to the earlier events because this was not covered by the question asked of him. He contends that he was truthful throughout the interview.

[17] On 11 September 2009, Mr Presbury was contacted by Mr Ogilvy. Mr Ogilvy questioned Mr Presbury as to where the second carton of beer had come from and told Mr Presbury to stop lying. Mr Presbury told him it had been purchased at a liquor store in Taree on the drive from Taree to Wauchope, and all four passengers in the vehicle had consumed some.

[18] After the telephone call, Mr Presbury accompanied Mr Reedman to his office to make a full statement of the events. This statement was typed up by Mr Reedman and signed by Mr Presbury.

[19] On 14 September, Mr Presbury attended a third interview with Mr Ogilvy. The focus of this interview was the misuse of the company’s property during the incident. Following the interview, Mr Presbury was suspended.

[20] On 17 September, Mr Presbury received a ‘show cause’ letter from Mr Ogilvy, informing him that the investigation into events 3 and 4 September 2009 had concluded and that the company had reached a finding that he had breached the Code of Conduct Principles of Behaviour due to his lack of disclosure of events during the investigative process and that he breached the Drug and Alcohol Policy due to his consumption of alcohol whilst driving from Taree to Wauchope. This latter breach was also considered to be a breach of the Rail Safety Act 2008 (NSW). He was given seven days in which to respond.

[21] Mr Presbury responded to the allegations in a written response of 21 September 2009.

[22] After considering the results of the investigation, including Mr Presbury’s written response, ARTC terminated Mr Presbury’s employment by letter dated 2 October 2009. The other four employees were also dismissed.

[23] The position of the company is that the breaches of policies constituted serious misconduct. It is of the view that each incident alone would constitute serious misconduct. The incidents identified are the purchase and consumption of alcohol on rostered duty, providing keys to the company vehicle to an intoxicated employee, and dishonesty during the course of the investigation. As such, ARTC believes that it was entitled to summarily dismiss Mr Presbury.

[24] Mr Klineberg, on Mr Presbury’s behalf, contends that the termination of Mr Presbury’s employment was harsh, unjust or unreasonable and contests the allegations made. He notes that the identified incident of providing keys to the company vehicle to an intoxicated employee was not put to Mr Presbury in the show cause letter dated 17 September 2009 or in the letter terminating his employment dated 2 October 2009. Mr Klineberg contends that Mr Presbury was not afforded an opportunity to respond to this allegation, and thus ARTC cannot rely on it now.

[25] At the conclusion of the arbitration conference, I identified five key items of conduct as most relevant to the determination of the matter. I indicated that I found two of the key items of conduct did occur and were serious, two occurred but were less serious and one item of conduct was not made out. They are now each dealt with in turn.

Stopping off at a liquor store on the drive from Taree to Wauchope

[26] It is not disputed that the company vehicle stopped off at a liquor store in Taree. Mr Loy said that it was his idea. Mr Presbury said that when the carton of beer was purchased he did not know when the beer was going to be consumed and that he never really asked himself the question. He accepted that any consumption of alcohol in a company owned vehicle was wrong.

[27] ARTC contend that Mr Presbury had a duty to act in a responsible and safe manner as driver, and to comply with all its policies and other applicable rail and road safety legislation.

[28] In my view it was clear that the purpose of stopping off at the liquor store in Taree was to consume the alcohol in the vehicle on the return to the motel in Wauchope. Although Mr Presbury did not initiate the stop, he did not discourage it. As he was the driver, it could be said that he facilitated the stop and should have known of the potential consequences. In my view he is implicated in the breach of company policy of the other four employees. I am not impressed by Mr Presbury’s alleged lack of knowledge of company policy. In my view this breach of policy is a serious matter.

Consuming alcohol on the drive from Taree to Wauchope

[29] In concluding that Mr Presbury had consumed alcohol whilst driving from Taree to Wauchope, ARTC relied on a statement made by Mr Gaudion during the investigative process. This statement states that Mr Presbury drank alcohol whilst driving the ARTC vehicle. In these proceedings, Mr Gaudion provided an additional statement. He said that he saw Mr Presbury holding a beer passed to him by Mr Loy, who was sitting in the front passenger seat, but he was not concentrating on what Mr Presbury was doing and nor was he in an ideal position to do so, sitting directly behind the driver’s seat.

[30] Mr Gaudion said that while he recalls seeing a bottle of beer being passed to Mr Presbury, he did not see Mr Presbury consume any alcohol. He said that his earlier statement was not a true recollection of events, and that the error was made in a response to pressure, duress and a concern for his employment.

[31] Mr Loy, Mr Bingle and Mr Falls all strongly refuted the suggestion that Mr Presbury consumed any alcohol. Mr Falls asserted that Mr Presbury did not consume any beer, based only on his knowledge of Mr Presbury’s dislike for it. Under cross-examination, he was unable to confirm that he had watched Mr Presbury throughout the drive. No other passenger was able to confirm that they had watched him throughout the drive either.

[32] Mr Presbury consistently denied any consumption of alcohol whilst driving.

[33] I find that the allegation that Mr Presbury consumed alcohol during working time while driving a company vehicle is not made out on the evidence before me.

Throwing empty beer bottles out the vehicle window on the drive from Taree to Wauchope

[34] This conduct only came to light following the statement provided by Mr Gaudion for the purposes of these proceedings. It was not conduct known to ARTC until after the investigation took place. Mr Gaudion states that Mr Falls threw an empty beer bottle out the company vehicle’s window at a passing road sign. He says that Mr Loy and Mr Bingle then did the same. Mr Gaudion recalls telling Mr Bingle his concern at this practice because he had to drive back along the same stretch of road the next day. The conduct stopped following this.

[35] Mr Loy could not recall whether the conduct had occurred or not and Mr Falls said that he first heard of it during the proceedings. Mr Presbury said he didn’t know anything about the conduct either.

[36] I find that the conduct described by Mr Gaudion did occur. I also find that Mr Presbury was more likely than not aware of it occurring. He did not take any action to prevent or deter the conduct, although it is doubtful that he needed to do so given that the conduct did not continue following the concern expressed by Mr Gaudion. As far as Mr Presbury is concerned, I view his involvement in this conduct as less serious than the conduct of those who threw bottles out the window.

Handing over of company vehicle keys and mobile phone to Mr Loy

[37] It is not disputed that between 11.00pm and midnight of the evening in question, Mr Presbury handed over keys to the company vehicle and the company’s mobile phone to Mr Loy. Mr Presbury said that when he opened the door, Mr Loy requested the mobile phone and keys to the vehicle. Initially he refused the request. When asked a second time, he handed them over. He states that he knew Mr Loy had been drinking that night, and that Mr Loy may have been intoxicated at the time of handing the keys and the mobile phone over.

[38] Mr Presbury said that he did not ask Mr Loy the reason for wanting the keys and phone, although he did not think Mr Loy would attempt to drive the vehicle because he did not think that Mr Loy would risk losing his license. He thought perhaps he wanted to get something out of the vehicle instead. He said he felt intimidated by Mr Loy, but not threatened.

[39] Mr Loy confirmed that during that afternoon and evening he had consumed a lot of alcohol and that when he made the request to Mr Presbury, he would not have been capable of driving a vehicle. The evidence established that Mr Falls drove the vehicle.

[40] ARTC contends that Mr Presbury was entrusted to ensure the safe custody of the keys and prevent any misuse of the company vehicle or company mobile phone. It contends that it was evident that Mr Loy was intoxicated because he was warned earlier in the evening by Mr Searle for his raucous behaviour.

[41] I find that Mr Presbury was responsible for the company’s property and that Mr Presbury handed over the company vehicle keys and mobile phone to Mr Loy that evening. In handing over the keys, Mr Presbury handed over the control of the vehicle to Mr Loy and this was done in a situation where he knew or ought to have known that Mr Loy was in no fit state to drive. I find that Mr Presbury was afforded an opportunity to respond to this incident.

[42] In my view Mr Presbury should not have handed over the keys to Mr Loy. He had other avenues available to him including checking with his supervisor next door or requesting that Mr Loy do so. His conduct was clearly inappropriate and I view it as a serious error of judgement.

Nature of responses to questions during the investigation

[43] This issue concerns the late disclosure by Mr Presbury during the company’s investigative process of the stop at the liquor store in Taree, the purchase of a carton of beer and their subsequent consumption in the company vehicle on the drive from Taree to Wauchope. Mr Presbury was interviewed on 4, 10 and 14 September and questioned by Mr Ogilvy by telephone on 11 September 2009. Mr Presbury first spoke of this conduct on 11 September in response to Mr Ogilvy asking him about the purchase of a second carton of beer. The company was not aware of a second carton of beer being purchased until it had been brought to the attention of the investigators through an interview conducted by Mr Ogilvy earlier that day with Mr Bingle. The omission was significant because the consumption of alcohol on the trip during company time is a serious matter and led to the dismissal of the other employees.

[44] Mr Presbury states that on 4 and 10 September he was asked to account for the events of 3 and 4 September from the time he had ‘knocked off’. He said that he had knocked off when he arrived at the motel in Wauchope. Mr Presbury states that he answered all questions truthfully and to the best of his recollection.

[45] Mr Presbury reiterated this position under cross-examination. He said this information was not disclosed to the company because it was simply not asked of him. He said he never made a decision not to tell the company about it. He said that this is evident in the fact that when Mr Ogilvy did ask about it, he not only confirmed that a second carton of beer had been purchased, but further disclosed where it had been purchased, by whom, and that some of the beer had been consumed during the drive. Mr Presbury concedes that by not disclosing the conduct of his colleagues, conduct which breached the company’s Drug and Alcohol Policy and Code of Conduct, he himself breached the company’s Code of Conduct which requires an employee to report any breaches or suspected breaches of the Code.

[46] ARTC contends that Mr Presbury only decided to disclose this information once it was known to him that the company knew of it. It contends that Mr Presbury was deliberately dishonest or at least not fully frank during the course of the investigative process and only disclosed this particular information once specifically prompted. The company’s Code required breaches to be reported to managers, and Mr Presbury did not do this.

[47] I find that Mr Presbury did not mention the purchase of the first carton of beer at the liquor store in Taree and the subsequent consumption of alcohol until 11 September 2009. This is despite previous opportunities for him to do so. It appears that Mr Presbury did not volunteer all information of 3 September but did intend to act honestly when questioned. I find that Mr Presbury, though not fully forthcoming, did not incorrectly answer any questions. I view this issue as inappropriate but not of a serious nature.

Was the termination harsh, unjust or unreasonable?

[48] I have considered all of the circumstances and their relevance to the criteria in s 387 of the Act. I find that there was a valid reason for the termination, that Mr Presbury was notified of the reason and given an opportunity to respond to the allegations against him. I do not consider that the other specified factors have particular relevance in this matter. However the question of whether termination of employment is a reasonable response to the conduct is a highly relevant consideration.

[49] At the time of termination ARTC thought that Mr Presbury had consumed alcohol during working time. That was the conduct that the other dismissed employees had also engaged in. I have found that it had not been established that this conduct occurred, although other inappropriate conduct did occur. Even though some of that conduct was of a serious nature I do not believe that separately or in combination his conduct justified termination of employment. It appears to me that the approach to Mr Presbury was tainted by the involvement of the other employees in drinking during a rostered on period and ARTC’s belief that Mr Presbury was directly involved in similar activity. In my view, his actual involvement, which by no means can be condoned, fell short of warranting dismissal. Handing car keys to a boisterous and inebriated workmate late at night was also irresponsible but in my view dismissal is a harsh and unreasonable response to this conduct.

[50] In all of the circumstances I find that the termination of Mr Presbury’s employment was harsh, unjust and unreasonable.


[51] Mr Presbury seeks reinstatement to his previous position or equivalent with ARTC, with continuity of service and back pay from the date of his termination.

[52] Section 390 of the Act provides the Tribunal with the power to order the reinstatement of an employee if it is satisfied that the employee was protected from unfair dismissal at the time of being dismissed and the employee has been unfairly dismissed. Reinstatement is the primary remedy in the sense that it must be considered first and compensation can only be considered if Fair Work Australia is satisfied that reinstatement is inappropriate.

[53] Mr Klineberg submits that reinstatement is not inappropriate because there was no questioning of Mr Presbury’s conduct or performance of his duties until these events occurred, he had continued to work and perform his duties for the company while the investigation was conducted, and given the size and nature of the work performed by ARTC, the impact of reinstating Mr Presbury will be minimal. He argues that the relationship of trust between Mr Presbury and the company has not been broken by these events, and should there have been a need for Mr Presbury to have faced disciplinary action, it could have been done without the termination of his employment.

[54] Mr Klineberg submits that it would be unreasonable for the company to say they do not trust Mr Presbury to adhere to its Drug and Alcohol Policy or other applicable safety legislation, when it was not found that Mr Presbury had consumed alcohol when driving. Despite Mr Presbury having driven to the liquor store in Taree on the drive to Wauchope, Mr Klineberg submits that this only followed a communication from ARTC that the group of employees had no other work duties to perform that day. As the events of 3 and 4 September 2009 resulted in the termination of the four passengers who had been drinking, and Mr Presbury’s termination would probably have been upheld if he had been drinking, Mr Klineberg submitted that the events would probably ensure that Mr Presbury has learnt a lesson and would not engage in similar conduct again.

[55] Mr Presbury has not found new employment since his termination and thus Mr Klineberg submits that it is important he receive back pay from the time of his termination to the time of his reinstatement. Mr Klineberg notes the operation of s 392(3) of the Act which requires the Tribunal to reduce the amount of compensation if satisfied that misconduct contributed to the employer’s decision to dismiss the person. He acknowledges that this section may have an adverse impact on the amount of lost pay awarded. Mr Presbury submits that should s 392(3) be viewed as relevant, the Tribunal should allow for a period of suspension less than the amount of time between Mr Presbury’s termination and the implementation of any order for his reinstatement.

[56] ARTC opposes the reinstatement of Mr Presbury. It submits that reinstatement would not be appropriate in the circumstances and submits that an order for payment of compensation should be made if any remedy is provided. The reasons relate to the alleged breakdown of trust and confidence between the parties and concerns that the integrity of its policies would be undermined and send the wrong message to employees and contractors.

[57] ARTC submits that reinstatement would not be appropriate for several reasons. It expresses great concern over Mr Presbury’s attitude towards the company’s Code of Conduct and other policies and supports this by reference to the findings made as to Mr Presbury’s conduct on 3 and 4 September, and Mr Presbury’s asserted lack of understanding of the company’s Code and other policies it has in place, despite regular attempts by the company to enforce them. The company said that it finds it difficult to comprehend how Mr Presbury has attained very limited knowledge of the Code and policies, and questions the authenticity of Mr Presbury’s assertion. It argues that this asserted lack of knowledge by Mr Presbury could be being used as an excuse for his conduct.

[58] ARTC submits that Mr Presbury’s responses to questions during the investigation and lack of understanding as to their consequence supports its concern with Mr Presbury’s ability to be honest with it in the future.

[59] It submits that the submission made by Mr Klineberg that Mr Presbury will probably not engage in similar conduct again, rather than definitely not, supports the concerns of ARTC. It submits that all the concerns it has raised with the reinstatement of Mr Presbury should demonstrate a breakdown of trust and confidence in the relationship. Based on this, it submits that Mr Presbury’s reinstatement cannot be viewed as an appropriate remedy. It cites the Full Bench decision of G. Dircks v JimRoy Pty Ltd 1 in support of this submission.

[60] ARTC submits that any remedy be limited to an order for compensation of two to three weeks salary. It submits that this amount would reflect the maximum amount of extended time that could have been provided to Mr Presbury during the investigation to respond to the allegations made against him, as it acknowledges that more time could have been afforded to him in this regard. It submits that findings made as to Mr Presbury’s conduct 3 and 4 September should bear significantly on any amount of compensation ordered, in accordance with s 392(3) and Mr Presbury’s length of service of approximately 13 months and his lack of attempts to mitigate his losses should also bear on any amount, in accordance with s 392(2)(b) and (d) of the Act.

[61] ARTC submits that if reinstatement is viewed as appropriate in the circumstances, Mr Presbury should incur a significant penalty. It does not support an order for back pay or continuity of service. It submits that if Mr Presbury is reinstated without penalty, ARTC is concerned that it will negatively impact on its attempt to drive a culture of workplace safety.

[62] In reply, Mr Klineberg submits that the findings made are not enough for ARTC to assert that there has been an irretrievable breakdown of trust and confidence in the relationship. He submits that it was only following the allegation of drinking whilst driving that Mr Presbury was suspended and until 14 September, the company trusted Mr Presbury to work and perform his duties. This would not have occurred had it questioned his integrity or attitude towards occupational health and safety. Mr Klineberg submits that if Mr Presbury has breached the company’s Code, then it is understandable that he be penalised. However, the company had a number of penalties to choose from, and that chosen had to be reasonable and appropriate in the circumstances. He submits that as termination was not reasonable, reinstatement should be ordered.

[63] I have come to the view that reinstatement is the appropriate remedy in this case. Mr Presbury’s involvement in the misconduct of his work colleagues is a serious matter but as I have found did not warrant termination of employment. His conduct displayed lack of knowledge and/or lack of regard to company policies and Code of Conduct. This adds to the gravity of the matter. However, I do not believe that ordering reinstatement will undermine the integrity of ARTC’s policies. ARTC clearly must ensure compliance with those policies and take appropriate disciplinary action if further breaches occur. The events of September 2009 dealt with in this decision serve as a serious warning not only to Mr Presbury, but to all other employees of the need to have knowledge of, and comply with, company polices.

[64] I am of the view that an order should be made to maintain continuity of Mr Presbury’s employment as it is appropriate that he not lose accrued benefits from his earlier period of employment.

[65] I take into account the matters specified in s 391 of the Act and all of the circumstances of the matter. I believe that an order should be made to restore back pay. I determine that the amount of pay should be limited to three months pay. The reduction has regard to the amount of income received during the intervening period, the reasonable efforts that should have been taken to obtain other employment and the nature of Mr Presbury’s conduct that led to the termination of his employment.

[66] An order giving effect to this decision is published with this decision.



D Klineberg on behalf of the Rail, Tram and Bus Union for Timothy Presbury

T Woods with R Lesiw for Australian Rail Track Corporation Limited

Hearing details:



February 4-5

 1   [2009] AIRCFB 772

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