DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Bennett
v
Viterra Operations Pty Ltd
(U2016/11365)

Application for relief from unfair dismissal – whether breach of drug and alcohol policy was valid reason – whether termination was harsh, unjust or unreasonable considered – safety imperative paramount – application dismissed.

[1] On 14 September 2016, Mr Bennett lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer Viterra Operations Pty Ltd (Viterra) on 29 August 2016.

[2] The matter was arbitrated from 29 November 2016 to 1 December 2016. Mr Adam Jacka of the Maritime Union of Australia (MUA) represented Mr Bennett, Mr Andrew Short of Minter Ellison Lawyers was granted permission under s.596(2) of the Act to represent Viterra.

[3] Mr Bennett provided a witness statement and a supplementary witness statement 1 and gave evidence on his own behalf and provided witness statements and led evidence from:

• Mr David Ellis - Bulk Loading Plant Supervisor and support person; and



• Dr Michael Robertson - expert witness.

[4] Viterra provided witness statements and led evidence from:

• Mr Ben Norman - Director Human Resources Australia and New Zealand;



• Mr James Murray - Operations Manager - Western Region;



• Mr Travis Hay - Operations Supervisor;



• Mr Warren Bland - Operations Supervisor;



• Ms Alyson Gilbey - Senior HR Business Partner; and



• Dr Tim Drew - expert witness.

[5] There was no dispute that Mr Bennett was protected from unfair dismissal at the relevant time.

[6] The position of Mr Bennett is summarised as follows:

• There was no valid reason for the dismissal and the circumstances surrounding the dismissal were harsh, unjust or unreasonable.



• There were irregularities in relation to the amount of alcohol consumed and the breath test results that indicated Mr Bennett’s ability to metabolise alcohol was impaired.



• Viterra’s Alcohol and Other Drugs Policy required that extenuating circumstances be considered.



• Viterra did not sufficiently take account of Mr Bennett’s impaired metabolism, his length of service and reduced prospects of employment, in determining it would dismiss him.



• Inconsistent disciplinary outcomes under the Viterra Alcohol and Other Drugs Policy have been applied to other employees.

[7] The position of Viterra is summarised as follows:

• There was a valid reason for the dismissal, namely that Mr Bennett breached Viterra’s Alcohol and Other Drugs Policy.



• Mr Bennett was notified of this reason and was provided the opportunity to respond.



• Viterra places a high emphasis on safety in the workplace and took the approach that safety outweighed Mr Bennett’s length of service and explanations for his conduct.



• Viterra considers the dismissal was not harsh unjust or unreasonable.

The Witness Evidence

[8] Mr Bennett’s evidence is summarised as follows:

• At the time of his dismissal, Mr Bennett was employed as a full time Grade 3 Operator/Electrician at Viterra’s Port Lincoln operation, having been employed by Viterra and its predecessors since November 1997.


• Mr Bennett worked on electrical systems up to 415 volts and held permits/licenses to operate truck mounted cranes, elevated work platforms, trucks and a boat; 2 and his duties included operating ship loaders, supervision of plant, maintenance and its repair, installation and commissioning of programmable logic controllers.3


• There was no previous disciplinary history.
• Mr Bennett regularly drank red wine at home between 6:00pm to 9:00pm, but was careful about how much he drinks the night before he comes to work as he is aware of the Respondent’s Alcohol and Other Drugs Policy. 4
• Prior to the 23 August, Mr Bennet had been alcohol tested on at least two occasions before 23 August 2016 with a negative result. 5


• There had been two prior occasions where he did not attend work because of his use of alcohol. 6
• On some occasions he had been sleepy in the later part of a shift. 7


• On the evening of 22 August 2016, Mr Bennett consumed three or four glasses of red wine out of a South Australian pint sized glass between 6:00pm and 10:00pm. 8


• On 23 August 2016, Mr Bennett attended work on day shift commencing at 7:00am. He was scheduled to perform general maintenance work that day including the upgrade of a control switch. He attended the routine toolbox meeting, and at the conclusion of that meeting, was subject to a random alcohol breath test. 9
• Mr Bennett’s first test results at 7:07am gave a breath analysis reading of 0.043 and his second breath test analysis at 7:25am was a reading of 0.040.
• Mr Bennett was shocked by these results. 10
• Shortly thereafter Mr Bennet was stood down with pay, 11 and driven home by another employee.12


• Mr Bennett could not understand the results and arranged for a private blood test at a laboratory in Port Lincoln.


• On 24 August 2016,Mr Bennet attended an interview accompanied by his support person (Mr Ellis) with Mr Murray and Ms Gilbey. During the meeting Mr Bennett was asked what he had to drink the night before his alcohol test. He advised he had three or four glasses of red wine the night before. He also advised of the details of the medication he was taking.


• Ms Gilbey advised that Viterra would seek advice from the Company doctor about these medications and the effects they might have on his alcohol test.


• On 25 August 2016, he attended a further meeting with Mr Ellis, Mr Murray, and another Company representative. Mr Bennett asked if Mr Jamie Newlyn, Branch Secretary of the South Australia Branch of the Maritime Union of Australia (MUA) could attend and the meeting was then adjourned to allow his attendance.


• On 26 August 2016, Mr Bennett received the blood test results which stated that as at 9:49am on 23 August 2016 he had an alcohol level of 0.03g /dl.


• On 26 August 2016, a further meeting was held with Mr Bennett, Mr Newlyn (attending by telephone), Mr Ellis, Mr Murray, and Ms Gilbey. Mr Bennett said “I believe that my metabolism is not working properly at the time of the test. I have received blood results to this effect today.” Mr Bennett provided the blood test results to Viterra who advised they would consider it. During the meeting Mr Bennett said he would be willing to submit to a drug and alcohol test every day if he was allowed to return to work, and be placed on probation. Mr Bennett stated that he “would never have attended for work if I suspected I was impaired in any way.”


• On 29 August 2016, a further meeting was held with Mr Newlyn (MUA) who attended by telephone and Mr Ellis, Mr Russell, Mr Murray and Ms Gilbey. Mr Murray read from a letter and dismissed Mr Bennett for a breach of the Alcohol and Other Drugs Policy and a breach of trust.


• During the disciplinary process Mr Bennett did not suggest that he would change his drinking habits. 13


• Mr Bennett had continued his drinking habit post his dismissal. 14

[9] Mr Bennett’s witness statement 15 contained the following attachments;

• copy of a letter dated 23 August 2016 detailing the alcohol test results and standing him down pending further discussions (Attachment RB1);



• copy of a blood test result dated 24 August 2016 (Attachment RB2);



• copy of a document which provided consumer medicine information for Stapylex (Attachment RB3);



• copy of a termination letter signed by Mr Murray dated 29 August 2016 (Attachment RB4); and



• copy of the Glencore/Viterra Alcohol and Other Drugs Policy dated 3 July 2013 and last revised on 5 August 2015 (Attachment RB5).

[10] Mr Ellis’ relevant evidence is summarised as follows:

• He has worked at the Viterra Port Lincoln facility and his current role is Bulk Loading Plant Supervisor and he supervises Mr Bennett.


• In his view Mr Bennett is a diligent tradesperson and a loyal and hardworking employee who assists others.


• Mr Ellis was surprised that Mr Bennett had failed an alcohol test as he believed Mr Bennett always presented himself for work in a fit state.


• On 24, 25 and 26 August 2016 he acted as a support person for Mr Bennett in meetings between Mr Bennett and Viterra.


• At the meeting on 24 August 2016, he heard Mr Bennett suggest to Viterra that the positive test result was due to medication he was taking. 16


• At the meeting on 26 August 2016, which discussed the blood test result, he heard Mr Bennett place responsibility for the positive result on medication he was taking, and that he felt ‘hard done by’. 17
• On 29 August 2016, he attended a further meeting where after some discussion Mr Bennett’s employment was terminated.
• He had not heard of a case where an employee who had tested positive to drugs or alcohol had not been dismissed. 18

[11] Mr Hay’s relevant evidence is summarised as follows:

• He works at Viterra as an Operations Supervisor.


• On 23 August 2016, Mr Hay was required to administer alcohol tests to employees, with Mr Bland as his witness.


• Mr Hay setup the equipment in accordance with the Alcotest Instructions 5136, and noted that the equipment was within the calibration date. 19


• Mr Bennett was tested at 7:07am and recorded a reading of 0.043. This result was photographed by Mr Hay at 7:10am. 20
• Mr Hay noted that Mr Bennett smelt of alcohol and had red wine staining around his mouth. 21
• A second test was conducted at 7:25am with a result of 0.040, this was also photographed by Mr Hay. 22
• Mr Bennett asked for a third test but this was declined.
• Mr Hay asked Mr Bennett when he finished drinking, Mr Bennett could not recall.


• Mr Hay drove Mr Bennett home.

[12] Mr Bland’s relevant evidence is summarised as follows:

• He works at Viterra as an Operations Supervisor.



• On 23 August 2016, Mr Bland assisted Mr Hay who was conducting alcohol testing by witnessing the testing process.



• Mr Bennett was tested and the first result produced was 0.043, Mr Hay photographed the result.



• A second test was conducted and produced a result of 0.04, this was also photographed by Mr Hay.



• Mr Bennett asked for a third test but this was declined.



• Mr Murray attended, stood Mr Bennett down and Mr Hay then drove Mr Bennett home.

[13] Mr Norman’s relevant evidence is summarised as follows:

• Mr Norman is Viterra’s Director Human Resources - Australia and New Zealand;


• Viterra’s business predominately involves the storage and handling of grain product and loading that product from terminals onto ships. 23 Grain is received during the three month harvest period by rail and on a variety of trucks including B-Double and Triple vehicles and loaded on to vessels.24


• Safety is Viterra’s number one priority and the company has lifesaving behaviours which are well documented and communicated through the ‘Take 5’ program, tool box talks, local safety meetings, executive roadshows and are discussed at the beginning of every meeting.
• One of the lifesaving behaviours concerns alcohol in the workplace. Mr Norman submitted a poster which contained a number of Viterra lifesaving behaviours, the first listed being “Always attend fit for work and within our Alcohol and Other Drugs Policy limits.” 25
• The alcohol limit was 0.02 (except for persons where there was a lower statutory threshold, e.g. Train or Truck drivers) and that limit was designed to give some tolerance above zero, but 0.02 was a firm line in the sand. 26
• Breaches of lifesaving behaviours can result in dismissal subject to extenuating or mitigating factors. Historically 31% of dismissals across the Viterra business since March 2011 involved alcohol breaches, two persons had resigned during an investigation and four employees (who had been tested for alcohol with nil result) had received warnings as a result of the presence of empty beer bottles in a Viterra vehicle.    
•  All persons who had been detected exceeding the 0.02 alcohol limit had been dismissed.27
• On 23 August 2016, he was advised by Ms Gilbey that Mr Bennett had an alcohol test result of 0.043 at 7:07am and 0.040 at 7:25am, and that he had been stood down from work.
• Mr Norman was also advised by one of his team, possibly Ms Gilbey or Mr Murray, 28 that Mr Bennett had advised he consumed 2-3 drinks of red wine, and went to bed at 10:00pm on the evening prior to the test. Mr Norman said there was some confusion about the quantity of wine consumed by Mr Bennett.29


• Mr Norman could not understand how a person could drink 3-4 standard drinks the night before and have the amount of alcohol Mr Bennett’s test results showed. 30
• On 25 August 2016, Mr Norman had a discussion with Mr Krause (General Manager) about Mr Bennett’s conduct, the preceding events and his work history. 31 Mr Krause was the ultimate decision maker.32


• Later that day Mr Norman and Mr Krause invited other members of the management team (Mr Hill, Mr Murray and Ms Gilbey) to further discuss Mr Bennett’s conduct and the appropriate outcome. Consideration was given to his length of service, no prior history of warnings, willingness to participate in daily testing, safety priorities and the tension between industrial issues and safety issues.
• Mr Norman was concerned that Mr Bennett’s reading was double the limit.
• Mr Norman maintained his view that the conduct was a serious safety breach and despite Mr Bennett’s work history at that time he believed dismissal was the appropriate outcome.
• Other than who informed him about how many drinks Mr Bennett consumed, Mr Norman’s evidence was largely uncontested.

[14] Mr Murray’s relevant evidence is summarised as follows:

• He is Viterra’s Operations Manager for the Western Region. 33


• Mr Bennett reported to Mr Ellis who in turn reported to Mr Russell who reported to Mr Murray. 34
• Mr Bennett was a qualified electrician and one of nine permanent Bulk Loading Plant (BLP) Operators at Viterra, Port Lincoln, as part of his duties he uses elevated work platforms and forklifts. 35
• Historically BLP workers are the most injured work group across the Viterra business, and work in a challenging environment with poor lighting, obstacles, dust and slippery conditions. 36
• On 23 August 2016, Mr Bennett was scheduled to perform electrical maintenance, potentially working with high voltage electrics. 37
• Viterra regards safety as very important, and has 10 lifesaving behaviours, one of those is contained in the Alcohol and Other Drugs Policy. 38
• On 23 August 2016, Mr Murray was informed that Mr Bennett had returned a positive test (0.043 and then 0.040) to alcohol, in excess of the applicable 0.02 limit in the Alcohol and Other Drugs Policy.
• Mr Murray subsequently stood Mr Bennett down with pay and confirmed the same in writing.
• On 24 August 2016, Mr Murray met with Mr Bennett, Mr Ellis and Ms Gilbey to discuss the alcohol test result. Mr Bennett said; 39

● the night before the test he had 3-4 glasses of red wine, dinner and stopped drinking at 10:00pm.
● It was not unusual for him to have a few drinks at night over a period of 2-3 hours.
● He did not have breakfast on the day of the test.
● He was aware of the Alcohol and Other Drugs Policy, the reasons for its existence and the 0.02 limit.
● He was expecting a zero reading and thought the alcohol would be out of his system.
● He was taking blood pressure tablets, anticoagulants and antibiotics (Staphylex) and thought that the antibiotics affected liver function and that might explain the result.

• On 25 August 2016, Mr Murray took part in a management discussion of the matter. The outcome of the discussion was that whilst no final decision was made, Mr Bennett’s conduct was regarded as serious, and dismissal was a potential outcome.


• On 26 August 2016, Mr Murray met with Mr Bennett (accompanied by Mr Ellis), Mr Newlyn (per telephone) and Ms Gilbey. Mr Bennett said he had drunk 3-4 glasses, possibly large glasses, from a cask and finished drinking at 10:00pm and suggested that his body was not metabolising alcohol at a normal rate, and advised that he had undertaken a blood test. Mr Bennett offered to be subjected to more frequent alcohol testing.


• Mr Murray was concerned that Mr Bennett appeared to show a lack of accountability for his behaviour, particularly in light of a failure to place any significance on his drinking or any intention to change that behaviour. Mr Murray was concerned that without a change to Mr Bennett’s drinking habits, increased testing would not address the core issue. 40


• Mr Murray wanted to understand the impact of the medications and sought further information from Dr Tim Drew. Dr Drew later provided advice that the medication would not have impacted the result.
• In cross examination, Mr Murray advised that whilst the ultimate decision maker was Mr Krause, a collaborative approach was taken with input from the relevant members of the management team. 41
• On 29 August 2016, Mr Murray met with Mr Bennett (accompanied by Mr Ellis), Mr Newlyn and Mr Duigan from the MUA (by telephone), Mr Russell and Ms Gilbey. Mr Bennett stated that he would not have attended work if he thought he was over, it was accidental, from medication. Mr Murray then dismissed Mr Bennett and confirmed same in writing.

[15] Ms Gilbey’s relevant evidence is summarised as follows:

• Ms Gilbey works for Viterra as a Human Resources Business Partner.



• On 23 August 2016, she was advised that an employee had tested positive to alcohol and prepared a draft stand down letter for Mr Murray.



• She participated in meetings between Mr Bennett and Viterra management on 24, 26 and 29 August 2016 and took notes of those meetings.



• She communicated with Dr Drew about Mr Bennett’s reading and the impact of the medication and advised Mr Murray.

The Expert Evidence

[16] Mr Bennett and Viterra both called evidence from Doctors both of whom I accept are expert witnesses.

[17] Dr Drew’s relevant evidence is summarised as follows:

• On 24 August 2016, he received an email from Ms Gilbey seeking advice on Mr Bennett’s alcohol test results and the impact of Mr Bennett’s medications on the result. 42


• Dr Drew advised by return email that the medications would not affect Mr Bennett’s metabolism rate, and the only issues which would affect the clearance of the alcohol would be significant liver or kidney disease.
• Using the two Viterra tests, and a copy of Mr Bennett’s blood test results, Dr Drew calculated Mr Bennett’s clearance rate as 0.0072 per hour, which is lower than usual.
• Dr Drew calculated that Mr Bennett would have had an alcohol level of about 0.11 at 10:00pm on the evening prior to the test.


• Dr Drew advised if a person regularly drank significant amounts of alcohol they would be more likely to be alcohol tolerant and less likely to regard themselves impacted by alcohol.

[18] Dr Robertson’s relevant evidence is summarised as follows:

• The metabolism of alcohol by an individual is relatively linear over a single event and over the medium term is consistent.


• On the information provided by Mr Bennett (4 glasses of wine each containing 150-170ml consumed between 6pm and 10pm) Dr Robertson calculated that Mr Bennett would have had an alcohol level of about 0.12% and with a normal metabolism rate of 0.015% per hour, his alcohol level should have been zero at the time of the alcohol test.


• Possible explanations of the discrepancy in the reading included, consumption of more alcohol than advised, materially different time of ingestion or impaired metabolism of alcohol.


• Using the two Viterra tests, and a copy of Mr Bennett’s blood test results, Dr Robertson calculated Mr Bennett’s clearance rate as 0.006 per hour (which is low) and contended that the difference between his calculated rate and Dr Drew’s of 0.0072 was within the margin of error and inconsequential.

Findings of Fact

[19] The majority of the witness evidence in this matter was not in dispute. As can be expected where multiple witnesses recall their observations of a matter, there were minor discrepancies. None of these discrepancies were such that any findings against credit were required to be made by me.

[20] In respect of the evidence of Mr Bennett, I found he gave his evidence in an honest and forthright manner, and that he genuinely believed that he was not impacted by alcohol, such that he was unfit for work.

[21] I make the following findings of fact;

• Viterra place a high level of importance on safety. 43 The Port Lincoln work environment carried with it a number of high risks including working on the deck of vessels, heavy machinery including the grain conveyor gallery, electrical work, working at heights, dusty conditions with restricted visibility.44 It was a high risk environment.


• Mr Bennett was employed to perform electrical work (which had inherent risks).
• Mr Bennett is 62 years of age and at the time of his dismissal had 19 years of unblemished service.


• A ‘Take five for safety’ approach was adopted by Viterra to reduce risk including the Alcohol and Other Drugs Policy.


• The Alcohol and Other Drugs Policy which imposes an alcohol limit of 0.02 on the work performed by Mr Bennett, and that non-compliance could result in dismissal. 45


• Mr Bennett was aware of the Policy requirements and the lifesaving behaviours referred to in the pocket sized booklet carried by employees. 46
• Mr Bennett drinks 3-4 glasses of red wine from a cask using a South Australian pint sized beer glass 4-5 times a week including weekends and believes consuming about a bottle of red wine in such circumstances would not place him at risk of breaching the Policy. 47
• On 23 August 2016, Mr Bennett was rostered to commence work at 7:00am and was continuing electrical work that he had commenced the previous shift. He accepted this work involved a risk of injury, 48 and as a result suggested he took greater care on these occasions.49
• With the knowledge of the next day’s work requirements, on the evening of 22 August 2016, Mr Bennett consumed 3-4 glasses of red wine from a 425ml South Australia pint glass (or similar) 50 at his home between 6pm and 10pm.
• Mr Bennett’s estimation of the amount in each glass varied from 125ml to 170ml.
• On 23 August 2016 at 7:07am, Mr Bennett attended for work with an alcohol level of 0.046 which was more than two times in excess of the Alcohol and Other Drugs Policy limit, and thus in breach of the Policy.
• At the time the test was conducted it was observed that Mr Bennett smelt of alcohol and had what appeared to be a red wine stain around his mouth. 51
• The requirement to submit to testing, the process used and accuracy of the test result is not in dispute.
• After the test, Mr Bennett was stood down with pay until a further meeting was conducted.
• Mr Bennett was surprised by the alcohol test result, and when interviewed stated he believed he was fit for work and believed the reading would be zero. 52 Mr Bennett said he was taking a course of antibiotics and thought that it may have impacted on his liver function and impaired his ability to metabolise the alcohol.53 Ultimately this view was not correct. At about 9:49am on 23 August 2016, the applicant undertook his own blood test which when analysed provided a reading of 0.03 g/dl (albeit using a different test methodology).
• The expert evidence reveals that Mr Bennett’s metabolic rate was lower than the average.
• The process undertaken by Viterra to investigate the breach of the Alcohol and Other Drugs Policy and determine the sanction was appropriate and whilst Viterra believed at an early stage that termination was appropriate it considered Mr Bennett’s submissions regarding the cause and provided an opportunity for the MUA to participate in discussions before reaching its final decision to dismiss Mr Bennett.
• On 29 August 2016, Mr Bennett was dismissed by Viterra on the basis of the breach of company Alcohol and Other Drugs Policy and a breach of trust. The dismissal was confirmed in writing by Mr Norman. 54 The breach of trust was based on the view that Mr Bennett had been less than truthful with his answers as to the number of glasses of wine consumed.55
• The dismissal was consistent with previous disciplinary outcomes for like breaches of the Alcohol and Other Drugs Policy.
• Whilst Mr Bennett offered to undertake more frequent testing and be placed in probation, he did not at any time offer to take any action as to the root cause of the problem, that being the level of alcohol consumed by him.
• Mr Bennett will have difficulty in finding work due to his age, notwithstanding the wide range of skills and qualifications that he holds.

Was the dismissal harsh unjust or unreasonable?

[22] Pursuant to s.387 of the Act, 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

(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.”

Valid reason - s.387(a)

[23] Notwithstanding its formulation under a different legislative environment, I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd⁵⁶ which requires the reason for termination to be “sound, defensible or well founded.”

[24] Mr Bennett was dismissed for a breach of the Viterra Alcohol and Other Drugs Policy 57 which provided that “it is unacceptable to present for work, or to be at work, or to carry out work with alcohol and/or drugs present in their system in contravention to levels prescribed by the relevant Glencore Grain/Viterra Procedures”. The level of alcohol prescribed relevant to Mr Bennett’s work was 0.02. His initial reading was 0.043 which dropped to 0.40 18 minutes later. Both readings are at least double the level prescribed. The Alcohol and Other Drugs Policy does not require any intention or knowledge by the employee. Mr Bennett accepts that he was in breach of the Viterra Alcohol and Other Drugs Policy. The fact that Mr Bennett’s metabolism rate may be lower than the statistical average does not change the reading. I find that Mr Bennett breached the Viterra Alcohol and Other Drugs Policy and this was a valid reason to terminate his employment.

[25] I find that evidence does not support the conclusion that Mr Bennett committed a breach of trust constituted by his alleged failure to give a consistent account of the amount of wine consumed. Mr Bennett’s evidence as to the number of glasses of wine he drank remained consistent at 3-4, and whilst there is a reference to the numbers 2-3 there was no evidence that this information was provided by Mr Bennett. I do not accept that Mr Bennett sought to mislead Viterra.

Sections 387(b) and (c)

[26] Mr Bennett was advised of the reason for his dismissal and was provided with opportunities to respond. There was no submission that Mr Bennett was not afforded procedural fairness and the evidence supported this position.

Section 387(d)

[27] Mr Bennett was allowed to be accompanied by a support person on the meeting of 24 August 2016 and the final meeting was conducted with additional support provided by the MUA.

Section 387(e)

[28] Mr Bennett’s dismissal did not relate to unsatisfactory performance, so this matter is not relevant to my consideration as to whether the dismissal was harsh, unjust or unreasonable.

Sections 387(f) and (g)

[29] Viterra is a large employer and has an internal human resource management capability.

Section 387(h)

[30] This is the key basis upon which the dismissal is challenged, and there are a number of factors which go to whether the dismissal was harsh, unjust or unreasonable. The factors and the impact in this matter are summarised in a table below:

[31] The determination of these factors is a balancing act. In my view, the provision of a safe working environment is paramount. The lack of awareness of his low metabolism rate and presence of alcohol does not lower the risk Mr Bennett posed nor does it excuse the breach, if anything it heightens the risk.

[32] In my view the consideration of all of the factors detailed above weigh against a conclusion that the dismissal was harsh, unjust or unreasonable.

Conclusion

[33] Having considered each of the factors detailed in s.387 of the Act, I have concluded that the dismissal of Mr Bennett was not harsh, unjust or unreasonable.

[34] The application will be dismissed and an Order 58 giving effect to this decision will be issued.

COMMISSIONER

Appearances:

Mr A Jacka of Maritme Union of Australia, on behalf of Mr Bennett.

Mr A Short of Minter Ellison Lawyers with Mr Norman, on behalf of Viterra.

Hearing details:

2016.

Port Lincoln:

29 & 30 November, 1 December.

 1   Exhibit A4

 2   Exhibit A3, PN471

 3   Exhibit A3, Para 4

 4   Exhibit A4 at [18]

 5   Exhibit A3

 6   PN136

 7   PN137

 8   Exhibit A4 at [14]

 9   Exhibit A3 at [6]

 10   Exhibit A3 at [8]

 11   Exhibit A3 at [9]

 12   Exhibit A3 at [10]

 13   PN291

 14   PN213

 15   Exhibit A3

 16   PN1205

 17   PN1220-1225

 18   PN1249

 19   Exhibit R4, Attachment 1

 20   Exhibit R4, Attachment 2

 21   Exhibit R4 [23]

 22   Exhibit R4, Attachment 3

 23   Exhibit R2 at 5-7

 24   PN732

 25   Exhibit R2, Attachment 1

 26   PN790

 27   PN747

 28   PN866

 29   PN785-788

 30   PN789

 31   Exhibit R2, at [18] – [20]

 32   PN799-804, 814

 33   Exhibit R5 [1]

 34   Exhibit R5 [6]

 35   Exhibit R5[9]

 36   Exhibit R5 [7]-[10]

 37   Exhibit R5 [9]

 38   Exhibit R5 [19]

 39   Exhibit R5 [33]-[62]

 40   PN1577

 41   PN1374-1377

 42   Exhibit R7, Attachment 1

 43   PN94

 44   PN99-109, PN469-471

 45   PN170-113

 46   Exhibit R1

 47   PN377, 681-684

 48   Pn165-166

 49   PN385

 50   PN600;PN632

 51   PN125

 52   PN132

 53   PN224

 54   Exhibit

 55   PN1601

56 (1995) 62 IR 371 at 373

 57   Exhibit R5, Attachment 1

 58   PR589881

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