DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Jurgen Rust
v
Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad
(U2016/14464)

Application for an unfair dismissal remedy – valid reason – dismissal not unfair – application dismissed.

[1] Captain Jurgen Rust has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy, having been dismissed from his employment with Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad (Farstad).

[2] On 5 July 2017, Commissioner Bissett issued a Decision, 1 which found that although the dismissal of Captain Rust by Farstad was for a valid reason, the dismissal was harsh and thus unfair. The Commissioner determined that an order for reinstatement was not appropriate and issued directions for the parties to file material relevant to the amount of compensation, if any, that should be ordered.

[3] However, on 26 July 2017, Farstad lodged a Notice of Appeal appealing the Commissioner’s Decision. On 4 September 2017, a Full Bench of the Commission heard the appeal and issued its Decision 2 on 10 October 2017. The Full Bench found the following two appeal grounds (grounds 4 and 5 of the Amended Notice of Appeal) were made out:

4. The Commissioner erred in failing to take into account (or to give sufficient weight to) a relevant consideration, being the Applicant’s decision:

(a) not to self-report under Farstad’s applicable drug and alcohol policies; and/or
(b) to present as fit for work in circumstances where he knew (or should have known) that he was not fit for work within the meaning of Farstad’s applicable drug and alcohol policies.

5. The Commissioner erred in failing to take into account (or to give sufficient weight to) a relevant consideration, being the Applicant’s breaches of Farstad’s applicable drug and alcohol policies arising from his failure to report taking prescription medication between 2014 and 2016.

[4] The Full Bench concluded there had been an error in the exercise of the Commissioner’s discretion and having regard to the significance of these errors, it would be unsafe to allow the Commissioner’s Decision to stand and the appropriate course was to uphold the appeal, quash the Decision and to remit the matter to another member of the Commission for rehearing. The Full Bench also determined an appeal by Captain Rust 3 was moot and refused him permission to appeal.

[5] The matter was referred to me for rehearing. I issued directions requiring the parties, inter alia, to inform me whether an oral hearing was required. The parties were subsequently directed to consolidate their submissions on rehearing into a single document outlining their positions and to prepare an agreed summary of facts not in dispute. In particular, they were directed that the summary should include but was not limited to, facts not in dispute regarding:

•  the employment relationship between Captain Rust and Farstad, including duration, position held and the duties and responsibilities attached thereto;

•  the circumstances giving rise to the dismissal; and

•  any of the matters in ss 387(a)-(h) of the Act.

[6] I advised the parties that for the rehearing, I would allow and consider the fresh evidence and additional arguments raised by Captain Rust 4. I sought confirmation from Farstad as to whether it required the opportunity to cross examine Captain Rust in relation to the fresh evidence. On 17 February 2018, I was advised by Farstad that it did not.

[7] As the parties did not request an oral hearing, the matter is to be determined on the papers.

Background

[8] Captain Rust was employed by Farstad from 29 January 2001 until 15 November 2016. At the time of his dismissal, he was employed in the position of Master Mariner (Master) and had not previously been the subject of disciplinary action. Captain Rust’s employment was terminated on 15 November 2016 for serious misconduct, with immediate effect.

[9] The parties provided a copy of the position description for a Master 5 and it records:

•  A Master of a vessel has overriding authority and responsibility for the safety of vessel and crew at all times;

•  A Master on board a Farstad vessel is the management representative and is responsible for ensuring the company’s policies, values and procedures are promoted and implemented;

•  A Master is required to motivate the officers and crew in the execution and adherence to all policies and ensure that they are fully aware of the Farstad safety tools and processes necessary to achieve an incident free work place; and

•  A Master is to motivate and mentor crew towards continual improvement of individual and vessel safety culture.

[10] It is agreed Captain Rust’s employment was regulated by a series of policies and procedures, including:

(a) Farstad Shipping Group Fit for Work Policy (Fit for Work Policy);

(b) Farstad Drug and Alcohol Policy (Offshore) (Offshore Policy); and

(c) Farstad Drug and Alcohol Testing and Searching Procedures (Testing Procedure).

[11] Each of these policies prescribes a blood alcohol concentration (BAC) limit of 0.02.

[12] The Fit For Work Policy:

•  defines “[f]it for work” as meaning “a person is in a state to perform their assigned tasks competently and in a safe manner without impairment due to drug and/or alcohol use, physical injury or functional fitness”; and

•  acknowledges that Farstad has a responsibility to “take reasonable steps to protect employees…in the workplace should they, or others, be under the influence of drugs and/or alcohol”; and

•  it achieves this by a “[z]ero tolerance to non-prescribed drugs and alcohol in the work site, meaning the Company will not accept any content of alcohol or drugs in breath, urine or blood” and through “[a] process for disciplinary action for violation of this Policy”.

[13] It is agreed the Offshore Policy is directed at creating a safe and healthy workplace, providing education, training and awareness and ensuring rehabilitation. Its objective is stated as being “to comply with the legal requirements and duty of care responsibilities, meet contractual needs, and most importantly protect Employees”, with strategies to minimise risk said to include:

•  Prohibition on the consumption, soliciting or possession of alcohol and non- prescribed drugs on all Vessels and any base.

•  Drug and alcohol testing during pre-employment, periodical medical, pre-contract, pre-swing, post incident, for cause and random/unannounced tests.

•  Preventative and rehabilitation programs for Employees where no Employee will be discriminated against for undertaking such a program.

•  Disciplinary action for any violation of the Policy in terms outlined.

[14] The Offshore Policy requirements with respect to prescription and over the counter drugs, are:

“38. Employees using prescribed drugs should ask their doctor or chemist what affects a drug or medication may have, and if there is a risk of it causing impairment. A doctor’s letter regarding the effect of a drug must be obtained outlining any limitation on normal duties and presented to Farstad. Farstad will maintain confidentiality. However, the Master of the Vessel must be informed.

39. All prescribed drugs brought on board a Vessel are required to be declared to the Master before signing on. In the case of a Master, they will need to declare this to the Ship Manager or equivalent before joining.”

[15] Finally, the Offshore Policy provides that a person returning a positive result “will be subject to disciplinary procedures which may include dismissal.”

[16] The Testing Procedure:

(a) states that:

Farstad Shipping APAC is committed to providing a safe and healthy work environment. As part of providing a safe and healthy work environment, Farstad aims to ensure that its employees and contractors (third party included) are fit for work, and that visitors to its worksites are safe and do not pose a threat to the safety of others. Fit for work means a state of physical, mental and/or emotional health, which enables a person to perform their duties in a manner that does not carry a risk of endangering the health and safety of themselves or others… For the purpose of this Procedure, a person will not be fit for work where the prescribed drugs and alcohol limits referred to in this documents [sic] have been exceeded by that individual, unless otherwise described.

(b) allows for random drug and alcohol testing on crew change days;

(c) requires that employees ensure prescription or over the counter drugs are taken safely and that they:

(i) ascertain from their medical practitioner or pharmacist possible side effects of the medication that may impact on the performance of work;

(ii) take the medication as directed by a medical practitioner or as advised by the manufacturer;

(iii) notify the vessel Master of any medication which is suspected could affect safety or performance;

(iv) report any side effects of the medication to the Master and prescribing medical practitioner where possible; and

(v) advise the Master, HR Officer or Employee Health Manager of the specific medications as they may show a positive drug test result.

[17] The parties agree that Captain Rust was aware of the various requirements of the Fit For Work Policy, the Offshore Policy and the Testing Procedure and that as a Master, he had an obligation to enforce compliance with those policies amongst his officers and crew, and generally act as a role model to his officers and crew.

[18] The parties also acknowledged the Employee’s Code of Conduct (Offshore) (Code of Conduct). It does not appear to be in contest and I am satisfied on the evidence that Captain Rust was also familiar with the Code of Conduct and its terms that:

•  “a seafarer should remain capable at all times of performing any duty, which may properly be required of him/her. This is particularly important on a ship, where an emergency may arise at any time requiring action by the crew”;

•  A zero blood alcohol level was required (defined as not exceeding a BAC of 0.02); and

•  According to the seriousness of a breach of the Code of Conduct, the sanction could be immediate dismissal or, when at sea, upon arrival at a port. 6

[19] In the period leading up to the termination of his employment, Captain Rust had initially been on leave that was to have been for a period of 10 weeks commencing on 1 September 2016. However, on or about 28 September 2016, he was contacted by Mr Josh Marland, Senior HR Officer for Farstad, and asked if he would assist Farstad by sailing on the Far Sirius as a supernumerary. This was for the purpose of mentoring the Master of the Far Sirius in relation to anchor handling operations with which that Master was not familiar.

[20] It is agreed a supernumerary is a person in addition to the regular complement of crew and has no statutory shipboard responsibilities or any role in the command of the vessel, with this remaining the responsibility of the Master. However, it is also agreed a supernumerary may be required to perform duties as needed at any stage on a crew change day. While a supernumerary has no formal shipboard duties to perform on a crew change day, he or she is paid for the crew change day and the travel and accommodation costs are also paid from the moment a supernumerary leaves his or her home. A supernumerary can either sail on the vessel from the port of origin to the destination or join the vessel at its destination.

[21] In this matter, the anchor handling operations were to occur at the destination, which was a journey of some 12 hours from the Far Sirius’ port of origin at King Bay Supply Base and Captain Rust was required to sail on the Far Sirius from its port of origin.

[22] Captain Rust agreed to serve as a supernumerary and so on 5 October 2016, took a flight from Brisbane to Perth. On this flight, Captain Rust came across a fellow Farstad employee (X) who was one of a number of crew members who made a complaint against him, arising out of events on the Far Scimitar in March 2014.

[23] The parties agree to the following in relation to these events in March 2014 and their aftermath:

•  On 23 March 2014, Captain Rust conducted a monthly and regular Safety Meeting aboard Farstad’s vessel for which he was the Master at the time, the Far Scimitar.

•  During the course of the meeting there was a heated discussion about an anchor handling procedure. During the course of the meeting, Mr Ribergaard, a rating, said to Captain Rust: “You were a cunt when you first came here and you still are.”

•  On 26 March 2014, following the berthing of the Far Scimitar at the Port of Dampier, Captain Rust was informed that a letter of complaint had been received from the crew of the Far Scimitar. The following morning Captain Rust was relieved of his command and flew to Melbourne to meet with Captain Butt and other senior management of Farstad. He was advised at this meeting that Farstad would engage an external HR firm to investigate the incident. He was suspended from work during this period.

•  Captain Rust was not informed of the allegation against him until he received an email from the external HR firm on 9 April 2014 which stated: “It is alleged that Mr. Jurgen Rust (Master Far Scimitar), during the Safety Committee Meeting (22/3/2014), whilst debating the appropriateness of a two “I.R” and three “I.R” connect and disconnect anchor handling operation, and who should be in control of the tuggers during this operation, stated that “he would rather see an IR injured or killed rather than bump the rig.”

•  Captain Rust attended an interview on 11 April 2014 and denied the allegation.

•  Captain Rust did not hear anything in relation to the investigation until 4 June 2014.

•  On 4 June 2014, Captain Rust was provided with a copy of the investigation report of United HR Solutions. It found the allegation to be substantiated although also found that it was not substantiated that Captain Rust “acted in breach of his safety obligations…and behaved in a manner unbecoming of a Master…”

•  The investigation report noted that the investigation had concluded on 23 April 2014.

•  The investigation report made the following recommendations:

(a) Leadership and coaching training for Captain Rust.

(b) Farstad was to provide further guidance to the Master of detail required in the minutes of meeting by virtue of updated template documents and audit the accuracy of information provided in minutes of meetings held on board.

(c) Re-educate all on board the Far Scimitar regarding the distribution of minutes and the importance of familiarisation of these minutes.

(d) Ensure performance reviews, including confidential 360 degree feedback sessions are conducted on, at a minimum, Masters, Chief Mate, Chief Engineer, and 1^st Engineer.

(e) By virtue of the sensitivity of the topic at hand, a formal mediation take place between Captain Rust and all on board the Far Scimitar at the time of the said event.

(f) Consider engaging an appropriate expert on maritime safety to review the operation of the 2-man operation process afresh, and determine whether (and in what circumstances) Farstad would approve the use of that system.

•  Recommendations (b), (c), (d), (e) and (f) were never carried out by Farstad.

•  On 13 June 2014, Captain Rust was diagnosed with depression and he commenced taking anti-depressant medication.

•  Following the completion of the investigation, Captain Rust was directed, against his wishes, to re-join the Far Scimitar with the same crew on 30 July 2014. During that swing Captain Rust experienced stress and anxiety associated with having to deal with the relevant crew.

•  Following the conclusion of that swing Captain Rust took the next swing off to deal with the mental health issues experienced as a result of the suspension and the investigation. His treatment for depression continued until about November 2014 and in December 2014 he ceased taking anti-depressant medication.

•  Captain Rust re-joined the Far Scimitar again in December 2014.

•  When signing off the vessel on 19 January 2015 and en-route to the airport, Mr Ribergaard verbally abused Captain Rust and had to be restrained by other crew to prevent him from assaulting Captain Rust.

•  On 24 January 2015, Captain Rust was requested to send an email to Mr Peter Barrow, the Farstad HR Director, in relation to the incident on 19 January 2015. Captain Rust duly complied with that request on the same day.

•  Captain Rust received no reply to that email from Farstad. No disciplinary action was taken against Mr Ribergaard in relation to that incident.

•  In early October 2015, Captain Rust met with the General Manager of Operations, Captain Hall. During the course of the meeting Captain Hall suggested Captain Rust put his version of the March 2014 events forward in an effort to finalise the suspension. Captain Rust agreed and sent an email to Captain Hall on 8 October 2015 detailing his concerns with the 2014 investigation.

•  There was no response or phone call from either Mr Barrow or Captain Hall to the above emails.

[24] Captain Rust spoke to X on arrival in Perth on 5 October 2016 and suggested they go to the Qantas Club and talk about the events on the Far Scimitar. During that conversation, X indicated that there were no issues between the two of them and that Captain Rust had been “unfairly treated by the crew and company.”

[25] It is agreed that Captain Rust consumed two full strength beers whilst in the Qantas Club at Perth, having previously abstained from alcohol for a period of 10 weeks before that day.

[26] Captain Rust boarded his flight to Karratha at 1.00pm. He did not consume any alcohol on the plane. On arrival at Karratha at or around 3.00pm, Captain Rust transferred to his hotel and checked in at around 3:50pm. Whilst in his hotel room over the next four hours, Captain Rust consumed seven full strength bottles of beer. At 8.00pm he met a work colleague for dinner and consumed one full strength schooner of beer. Captain Rust then returned to his room and went to bed shortly after 9.00pm.

[27] Captain Rust was aware that he could be subjected to alcohol testing the following morning.

[28] The termination of Captain Rust’s employment followed events on 6 October 2016. The agreed summary of facts filed by the parties records:

•  At around 5.00am on 6 October 2016, Captain Rust woke, showered, and dressed. He then proceeded to the hotel restaurant.

•  When Captain Rust arrived at the restaurant, at around 6:00am, he was immediately met by a contractor and informed that he had been randomly selected to participate in a drug and alcohol screening.

•  Captain Rust presented as purportedly fit for work during that process. He agreed that he could have self-reported a breach of Farstad’s drug and alcohol policies but did not. He agreed that he chose not to self-report.

•  Captain Rust was then subject to a BAC breath test at 6:15am and registered a BAC of 0.047. A further test was carried out 15 minutes later and Captain Rust registered a BAC of 0.044.

•  There was no suggestion by Farstad that Captain Rust was affected by alcohol such that it influenced his behaviour, for example, being aggressive or argumentative.

•  The transport from the hotel to the King Bay Supply Base on 6 October 2016 was due to depart at 7.00am. Taking into account travelling time, and the process of passing through the security gate at the base, the relevant employees would have boarded the relevant vessel between 7.45am to 8.00am.

•  The Deck Log of the vessel showed that on 6 October 2016:

○ there was a crew change out at 8:30am;

○ deck cargo unloading was complete at 4:30pm;

○ deck cargo loading was complete at 6.00pm; and

○ the vessel departed at 10:52pm.

•  Captain Rust’s BAC at the time when he would have boarded the bus, when he would have boarded the vessel, when the vessel departed the port, or when the vessel arrived at its destination to perform the relevant anchor handling operations, is unknown.

[29] These events gave rise to an investigation and the termination of Captain Rust’s employment. The agreed summary of facts records:

•  Captain Rust was stood down from duty. He did not deny the outcome of the tests or that he had breached applicable policy. He was returned home the following day.

•  The matter was to be investigated by Mr Chris Homsey - Human Resources Director. The relevant decision-maker was Mr Stuart Scott - Vice President Operations.

•  On the day of the positive test, Mr Homsey and Mr Scott had each formed the view that Captain Rust had committed serious misconduct by returning the positive test.

•  On 11 October 2016, Captain Rust was advised in writing by Farstad of the allegations. The letter stated that it considered Captain Rust’s conduct to be serious misconduct that justified the summary termination of his employment.

•  On 27 October 2016, Captain Rust’s union, the Australian Maritime Officers Union (AMOU), on behalf of Captain Rust, responded to the allegations admitting that he had breached the policy, but requesting leniency given the surrounding circumstances.

•  On 9 November 2016, Captain Rust attended a meeting with Mr Homsey to discuss the matter. The AMOU sent further correspondence to Farstad on 10 November 2016.

•  On 15 November 2016, Captain Rust was advised in writing of Farstad’s reason to terminate his employment. The letter stated in part:

Farstad remains of the view that your admitted breach of policy constitutes serious misconduct. In particular, your knowledge and understanding of; the Group-Fit for Work Policy and associated policies and procedures related to drugs and alcohol; Farstad’s safety values; the reasons for Farstad’s implementation and strong enforcement of random drug and alcohol testing; Farstad’s clients’ expectations of its management of drugs and alcohol; have been considered. Further, as person holding a senior position in Farstad’s seagoing workforce, your failure to abide by the policies has meant that Farstad has concluded your employment cannot continue.

Accordingly, I am advising you that Farstad is today terminating your employment for serious misconduct with immediate effect.

[30] Following the termination and during these proceedings, Farstad raised a concern with Captain Rust’s non-disclosure of prescription medication and its witnesses said that it was a matter that they would have investigated had they known of it prior to Captain Rust’s termination. In this regard, Farstad also relies on post-termination findings that it says should be taken into account, being:

(a) Captain Rust’s failure to disclose various prescribed medications between 2014 and 2016 in contravention of its applicable drug and alcohol policies; and

(b) Captain Rust’s failure to enforce compliance by his crew with policy requirements to disclose prescribed medications upon boarding a vessel.

[31] As to these matters, the parties agree to the following facts:

•  At various times between July 2014 and October 2016, Captain Rust was prescribed and took Pristiq and Fluoxetine, two forms of anti-depressant drugs.

•  Captain Rust read the prescribing information that accompanied those drugs and was aware that the most common side effects of Pristiq included nausea, dizziness, insomnia and anxiety. He was aware that the manufacturer of Pristiq cautions patients against operating hazardous machines until they are reasonably certain that Pristiq does not adversely affect their ability to do so, and cautions patients to avoid alcohol whilst taking Pristiq.

•  The manufacturer of Fluoxetine lists insomnia and fatigue as “very common” side effects, being those that may affect more than one in 10 people. It also lists restlessness, poor concentration, sleep problems, unusual dreams, tiredness or sleepiness, uncontrollable shaking movements, and blurred vision as “common” side effects, being those that may affect up to one in 10 people.

•  The manufacturer of Fluoxetine similarly cautions patients in prescribing information against operating hazardous machines until they are reasonably certain that Fluoxetine does not adversely affect their ability to do so, and cautions patients to avoid alcohol whilst taking Fluoxetine.

•  Captain Rust was taking Pristiq on the swing on the Far Scimitar in July 2014 and Fluoxetine on the swing on the Far Sirius from 28 July 2016 to 1 September 2016. 7

•  Captain Rust was taking Fluoxetine as at 5 October 2016.

•  At no stage between 2014 and 2016 did Captain Rust disclose to the relevant Ship Manager that he was taking Pristiq or Fluoxetine.

•  This non-disclosure amounted to a breach of the terms of clauses 38 and 39 of the Offshore Policy.

•  Captain Rust recalls one occasion during his employment with Farstad on which a crew member declared prescription drugs onboard a vessel under his command. His evidence was that he considered that the requirements in relation to prescription medication was managed and overseen by Human Resources.

[32] Clause 38 of the Offshore Policy states:

“Employees using prescribed drugs should ask their doctor or chemist what affects a drug or medication may have, and if there is a risk of it causing impairment. A doctor’s letter regarding the effect of a drug must be obtained outlining any limitation on normal duties and presented to Farstad. Farstad will maintain confidentiality. However, the Master of the vessel must be informed.”

[33] Clause 39 of the Offshore Policy states:

“all prescribed drugs brought on board a Vessel are required to be declared to the Master before signing on. In the case of a Master, they will need to declare this to the Ship Manager or equivalent before joining”.

[34] The parties agree that as a Master, Captain Rust was responsible for enforcing compliance with all policy and procedure requirements amongst his officers and crew.

Section 396 – Initial matters to be considered

[35] Section 396 of the Act requires me to decide four matters before considering the merits of Captain Rust’s application for an unfair dismissal remedy. There is no dispute between the parties, and I am satisfied, of the four matters referred to in ss.396(a)-(d) of the Act, as follows.

[36] Firstly, Captain Rust’s application was made within the 21 day period required by s.394(2) of the Act (s.396(a)).

[37] Secondly, Captain Rust had almost 16 years of service and an enterprise agreement (the Farstad (Indian Pacific) Pty Ltd and Australian Maritime Officers Union Offshore Oil and Gas Enterprise Agreement 2015) applied to him in relation to his employment. These matters are agreed. Consequently, I am satisfied that Captain Rust was protected from unfair dismissal pursuant to s.382 of the Act (s.396(b)).

[38] Thirdly, Farstad is not a small business and therefore the Small Business Fair Dismissal Code does not apply (s.396(c)).

[39] Fourthly, it is not argued and nor is it the case that Captain Rust’s dismissal was a genuine redundancy (s.396(d)).

[40] I must now consider if the dismissal of Captain Rust by Farstad was unfair within the meaning of the Act.

Section 385 – was Captain Rust’s dismissal unfair?

[41] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 3

Section 385(a) – was Captain Rust dismissed?

[42] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the Act. Section 386 of the Act provides:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[43] It is not disputed and I am satisfied on the evidence that Captain Rust was dismissed within the meaning of s.386(1)(a) of the Act.

Section 385(c) – Small Business Fair Dismissal Code

[44] As outlined in paragraph [38] above, s.385(c) does not apply.

Section 385(d) – Genuine redundancy

[45] As outlined in paragraph [39] above, s.385(d) does not apply.

Section 385(b) – Harsh, unjust or unreasonable

[46] The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable, within the meaning of s.385(b) of the Act, are set out in s.387 of the Act:

“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

(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.”

[47] The ambit of the conduct which may fall within the phrase “harsh, unjust or unreasonable” was explained in Byrne v Australian Airlines Ltd 8 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 be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.” 9

[48] I am under a duty to consider each of the criteria set out in s.387 of the Act in reaching my conclusion as to whether the dismissal of Captain Rust was harsh, unjust or unreasonable. 10 I will now do so.

Section 387(a) – Valid reason

[49] I next need to give consideration to s.387(a) of the Act and whether there was a valid reason for the dismissal related to Captain Rust’s capacity or conduct.

[50] Farstad must have a valid reason for the dismissal of Captain Rust, although it need not be the reason given to him at the time of the dismissal. 11 The reasons should be “sound, defensible and well founded”12 and should not be “capricious, fanciful, spiteful or prejudiced”.13

Submissions – Breach of Drug and Alcohol Policies

[51] Captain Rust submitted he was terminated for breaching the Offshore Policy and emphasised its references to the “workplace” and the concept of fitness for work. He emphasised that in agreeing to sail as a supernumerary on 6 October 2016, he was to be on the vessel as a form of transport to the destination, where he was to assist and mentor the actual Master of the vessel in relation to anchor handling duties. Captain Rust said as it turned out, the vessel did not depart the base until over 16 hours after the first BAC test and then, his anchor handling duties were not going to occur until the vessel had arrived at its destination, some 12 hours after it departed the base.

[52] Captain Rust acknowledges he was employed in an industry which is, generally speaking, one where safety is paramount. However, he submits it does not automatically follow that the work environment on 6 October 2016 was a safety critical one. Captain Rust submits it is difficult to conceive of any emergency in the circumstances that could have arisen on a stationary vessel berthed at port. He further submits that it was not an unpredictable or otherwise uncertain work environment, in that he had no role to perform in the handover that was occurring on that day and no direct shipboard duties.

[53] In this respect, Captain Rust says the vessel on 6 October 2016 did not leave the Base until 10:52pm, some 15 hours after he had been due to board it and practically speaking, he would have expected to sit and wait while reading some documents.

[54] Captain Rust submits that whilst those factors do not excuse his conduct, they do not elevate the gravity of it in the way suggested by Farstad and he argues Farstad’s submissions on those topics should be viewed with some caution.

[55] Captain Rust asserted he had suffered the symptoms of mental illness because of the interaction with X and this was never taken into account, with the failure by Farstad to take a statement from X “symptomatic of an investigation that lacked the rigor one would expect given the grave consequences that were at stake”. 14

[56] Captain Rust places great significance on the events on the Far Scimitar in 2014. He remains aggrieved at the manner in which they were handled and the way he was treated by Farstad. Captain Rust gave evidence that after seeing X, he began to reflect on the 2014 events on the Far Scimitar and this caused him to feel anxious and depressed and he noticed his heart rate palpitating. He said he felt stressed, restless, alone and angry. Captain Rust relies on medical evidence from Dr Wright and Dr Chatfield, which he submits concludes his judgement, expressed in his decision to consume the amount of alcohol he did, was impaired or adversely affected by his mental illness at that time.

[57] Captain Rust also submitted Farstad’s decision-making processes were binary in nature, in that it considered his breach of the Offshore Policy was either serious misconduct warranting dismissal or not, and was otherwise inconsistent with the wording of the Offshore Policy. He submitted the Offshore Policy provided discretion as to disciplinary procedures but that the investigation “was a process of merely going through the motions.” 15

[58] Captain Rust therefore maintains there is no valid reason for dismissal and his misconduct involved a single and isolated breach of policy that involved persuasive mitigating circumstances, including:

•  that, as established by the medical evidence, he was suffering from a psychological injury at the time he made the decision to consume the alcohol;

•  that his judgement and decision making were impaired by that injury at that time;

•  that the applicable policies do not mandate termination, let alone summary termination, for a first breach;

•  that the applicable policies were introduced on the understanding that those who breached them would receive counselling and rehabilitation and not be punished with dismissal;

•  that the Offshore Policy contains express terms that refer to Farstad providing education, training and rehabilitation to those employees with a drug or alcohol problem;

•  there was no pattern of misconduct or anything similar, with the breach amounting to what should be considered to be an isolated mistake;

•  no alcohol was consumed for more than nine hours before the relevant test;

•  the applicable policies focus on the state of an employee in the workplace, which in this case was the vessel, in circumstances where his BAC level at the time he would have boarded the vessel is not known;

•  if he did board the vessel, he would have had no shipboard duties on 6 October 2016, would not have been in command of the vessel and would have usually sat and waited for the crew change handover to occur;

•  he was, in effect, on the vessel as a form of transport to the destination, which is when his anchor handling duties would be performed; and

•  he admitted the breach immediately, did not seek to evade responsibility, and has shown genuine insight into the nature of his conduct.

[59] Ultimately, Captain Rust submitted that if, notwithstanding these factors (which he characterised as mitigating), I am inclined to find that a valid reason did exist, his termination was still harsh, unjust or unreasonable.

[60] Farstad submits the conduct of Captain Rust on 6 October 2016 was deliberate behaviour inconsistent with the continuation of his contract of employment, particularly given the wilful nature of his actions and the fact that Farstad expressly required him to comply with its policies. It submitted the behaviour caused serious and imminent risk to his own health and safety (and to that of his colleagues) and as such, constituted serious misconduct for the purposes of Regulation 1.07 of the Fair Work Regulations 2009 (Cth).

[61] The serious misconduct was said by Farstad, in its letter of 15 November 2016, to be breaches of its policies relating to drugs and alcohol. In particular, it was said by Farstad that on 6 October 2016, Captain Rust recorded a reading in excess of permitted levels in a random test under these policies, which he had admitted.

[62] Farstad submits it was open to Mr Scott to conclude dismissal was the appropriate disciplinary outcome upon substantiating the allegations and considering the response of Captain Rust. It submits this is not illustrative of a “binary” approach, but rather of an approach which recognised that a conscious breach of a Master of zero tolerance drug and alcohol policies was a very serious matter. Farstad submits Mr Scott was not required to give extensive consideration to every other conceivable disciplinary outcome before reaching his conclusion and the fact he did not give extensive consideration to alternative outcomes does not suggest any unfairness in the disciplinary outcome he reached.

[63] In its submissions, Farstad seeks to highlight three aspects of Captain Rust’s conduct on 6 October 2016 in the following manner:

•  Captain Rust returned a BAC reading over twice the prescribed limit immediately prior to embarking the Far Sirius. He had chosen to present as fit for work rather than self-reporting and if it were not for the fact that he was included in the testing group that day, Captain Rust would have embarked the vessel.

•  Captain Rust’s conduct must be assessed in the context of the maritime industry in which he works, and the particular role he holds. As a Master, he bears ultimate responsibility for the safety of his crew and the vessel, and for the enforcement of the very policies he breached. The Code of Conduct requires Captain Rust to be fit to perform any duty reasonably required of him at all times and whilst his serious breach of the drug and alcohol policy would give rise to a valid reason for dismissal regardless of his industry, the damage to his employment relationship is even more acute in the maritime industry context, where the highest standards of safety compliance are essential, and expected to be demonstrated by Masters.

•  It is beside the point that neither Captain Rust nor any of his colleagues were injured as a result of his conduct because an employee may engage in serious misconduct that causes serious and imminent risk to health and safety despite no injuries occurring. Further, performing safety-critical work under the influence of alcohol could in many situations create an imminent risk to health and safety, and it is not possible to predict in advance which particular situations may create such a risk. As such, it is for precisely this reason that Farstad requires strict compliance with its drug and alcohol policies, and why those policies are reasonable directions of Farstad.

[64] Farstad further submitted that even if Captain Rust’s conduct fell short of serious misconduct, which it does not concede, it was nonetheless a valid reason for termination. Farstad acknowledged not every breach of a lawful and reasonable direction/policy will automatically give rise to a valid reason for termination but submitted there was a valid reason in this case because of:

•  the character of the relevant policies (being policies directed at workplace health and safety);

•  the nature of Captain Rust’s conduct (engaging in conduct potentially endangering his own health and safety and that of his colleagues, alongside impacting Farstad’s obligations under safety legislation and its commercial contracts); and

•  the safety-critical nature of Captain Rust’s role.

[65] Farstad responded to Captain Rust’s submissions that argue mitigating circumstances, as follows:

•  Even before addressing the weight that ought be attributed to medical evidence adduced by Captain Rust that he was “suffering from a psychological injury at the time he made the decision to consume the alcohol” and whether or not he was in fact impaired by a psychological injury when he drank at least 10 beers on the evening of 5 October 2016, Captain Rust could have (and, by his own admission, should have) self-reported his consumption of alcohol at any point prior to testing and that he chose to ‘take his chances’ on the morning of 6 October 2016 bespeaks a lack of judgement which is fundamentally inconsistent with his safety-critical role as Master.

•  That its drug and alcohol policies do not mandate dismissal for a ‘first strike’ breach is irrelevant, with the Farstad policies expressly providing that a breach may result in summary dismissal. Farstad acknowledged that each case must be approached on its merits and submitted that both Mr Scott and Mr Homsey described the reasons why Captain Rust’s breach was sufficiently serious to warrant summary dismissal.

•  The submission that the drug and alcohol policies were introduced on the understanding that those who breached them would receive counselling and rehabilitation and would not be punished with dismissal was devoid of foundation. The terms of Farstad’s various drug and alcohol policies make it clear that a breach may result in summary dismissal. It says that fact is also expressed in Clause 22.1 of the applicable Enterprise Agreement.

•  That the Offshore Policy contains express terms that refer to Farstad providing education, training and rehabilitation to those employees with a drug or alcohol problem simply establishes a provision that is facilitative and not mandatory, with it being open to Farstad to determine whether a particular breach warrants such a referral, or is sufficiently serious to warrant dismissal. Farstad also submits that the apparent submission that Captain Rust was an employee with an alcohol problem is “somewhat surprising” because, given the nature of his role as Master, he would have been required to disclose any such ongoing alcohol problem to Farstad and his failure to have done so provides yet another valid reason for dismissal.

•  There is simply no principle that an “isolated” contravention of a drug and alcohol policy arising in safety-critical work warrants a disciplinary outcome short of dismissal. Farstad submits there is however no shortage of Commission decisions holding that a breach of a drug and alcohol policy by an employee tasked with safety-critical work amounts to a valid reason for dismissal. 16

•  The relevance of the submission of Captain Rust that no alcohol was consumed for more than nine hours before the relevant test was questionable.

•  As to the challenge by Captain Rust to the application of its drug and alcohol policies to points in time prior to boarding a vessel, Farstad submits that the suggestion it is a mitigating factor that the policy was breached at the hotel, rather than onboard the Far Sirius is questionable because it was Captain Rust’s next destination after the hotel and had he not been randomly selected in the testing group, he would have embarked the Far Sirius at over twice the BAC limit under the Offshore Policy.

•  Farstad also says it meets the incoming crew’s travel and accommodation costs for the day prior, and pays them for their time on crew change day prior to boarding the vessel. Farstad submits crew change day was considered a work day for incoming crew and their work day commenced upon their presentation for crew change testing at the hotel, prior to boarding the vessel. The expectation is that the crew is fit for work at the point in time where crew change testing occurs: that is, at the hotel.

•  Farstad further says the Code of Conduct requires all seafarers to remain capable at all times of performing any duty which may properly be required of them, that the Testing Procedure makes clear that a person will not be fit for work where they exceed the prescribed alcohol limit and that the Offshore Policy makes clear that the joining crew will be tested on crew change day. It further submitted its policy position is clear and was clearly understood by Captain Rust. Farstad says Captain Rust also accepted that he was aware of the requirements of Farstad’s various drug and alcohol policies and procedures. Farstad submits Captain Rust accepted he was aware that he could be subjected to crew change testing on the morning of 6 October 2016 and he had been subject to crew change testing at the hotel over a number of years.

•  Farstad says Captain Rust was onboard because it had offered his services as Mentor to the client. It also says Captain Rust was paid for the time he was onboard and he could have been required to perform any duties onboard at any time in the event of an emergency, or some other unexpected circumstance. Farstad submits its policies required Captain Rust to be fit to perform any such duties and he was aware of this.

•  Farstad submits that it is not to the point that no immediate safety risk occurred on 6 October 2016, maintaining that such a scenario could well have occurred in a safety-critical work environment, and Captain Rust (as a Master onboard the vessel) could well have been required to assume a leadership role or otherwise perform complex tasks. In any event, it says Captain Rust’s serious misconduct occurred at 6:15am, when he failed the breath alcohol test in circumstances where his judgement was not impaired and where he could have reported (but chose not to report) his alcohol consumption the night before. Farstad submits the question of what time the Far Sirius departed the King Bay Supply Base is entirely irrelevant.

Submissions – Failure to disclose prescribed medications

[66] The Offshore Policy also regulates the use of prescription and over-the-counter drugs, with:

•  clause 37 setting out a non-exhaustive list of drugs which may affect performance, which included anti-depressants;

•  clause 38 requiring an employee to obtain a doctor’s letter regarding the effect of a drug outlining any limitation on normal duties which is to be presented to Farstad; and

•  clause 39 requiring that all prescribed drugs brought on board a vessel be declared to the Master prior to signing onto the vessel or in the case of a Master, declared to the Ship Manager (or equivalent) before joining.

[67] It is agreed that at various times between July 2014 and October 2016, Captain Rust was prescribed and took the anti-depressant drugs Pristiq and Fluoxetine and read the prescribing information that accompanied them. It is also agreed that at no stage between 2014 and 2016 did Captain Rust disclose to the relevant Ship Manager that he was taking Pristiq or Fluoxetine and this amounted to a breach of clauses 38 and 39 of the Offshore Policy.

[68] Captain Rust’s evidence on re-hearing was that he has never received specific training or instruction in respect of requirements by Farstad to disclose prescription medication. 17 Captain Rust also says that he is not aware of any Farstad employee previously being disciplined for failing to disclose such medication and he was never required to ask employees if they were taking medication. He submitted there was a custom and practice of employees not disclosing medication.

[69] Captain Rust also referred to the Marine Orders issued by the Australian Maritime Safety Authority (AMSA) on re-hearing and submitted they no longer require the disclosure of prescription medication.

[70] Ultimately, Captain Rust submits these factors mitigate against the objective seriousness of his non-disclosures of prescription medication.

[71] Captain Rust also gave evidence that he had not experienced any side effects from the medication he had taken. When he was first prescribed Pristiq in 2014, he inquired about any side effects and was advised by his doctors that there were no indications of any potential side effects that would possibly affect his work performance from either medication. 18

[72] Farstad submits that having both undertaken and delivered drug and alcohol policy training to Farstad employees under his command, Captain Rust was well aware (or should reasonably have been aware) of the requirements of the Offshore Policy.

[73] Farstad challenged Captain Rust’s evidence on re-hearing that he has never received specific training or instruction in respect of requirements by Farstad to disclose prescription medication and argues that before the Commissioner, Captain Rust agreed under cross-examination that:

•  he was familiar with Farstad’s drug and alcohol policies; 19

•  Farstad communicated the details of its policies to its employees; 20

•  Farstad made clear to its Masters that the policies existed and where they could find them on the company’s systems. 21

[74] Farstad attacks the submission of Captain Rust that the Marine Orders issued by AMSA no longer require the disclosure of prescription medication by submitting:

•  The current version of the Marine Order operates to require the Certificate of Medical Fitness (which establishes a person is medically fit to perform duties as a seafarer) to include information on prescribed medication taken regularly; and

•  In any event, the Marine Orders are irrelevant because Farstad’s policies plainly require disclosure by crew members and Masters alike, of prescribed medications taken on board Farstad vessels.

[75] On the question of the Marine Orders by AMSA, I am persuaded by the submission of Farstad that they are irrelevant because Farstad’s policies require disclosure by crew members and Masters alike, of prescribed medications taken on board Farstad vessels.

[76] Farstad submits the failure by Captain Rust to report his taking of Pristiq and Fluoxetine was not a trivial breach of the Offshore Policy because they have a range of side effects, including insomnia and fatigue (in greater than 10 per cent of cases), restlessness, poor concentration, uncontrollable shaking movements and blurred vision (in up to 10 per cent of cases). Farstad submits it was of significance that Captain Rust had agreed that he had read the information that came with his prescription for Pristiq because as a result, he was aware of the manufacturer’s caution against operating hazardous machines (including automobiles) until a patient is certain that Pristiq does not adversely affect his or her ability to do so and that its most common side effects include nausea, dizziness, insomnia and anxiety.

[77] Farstad also submitted:

•  Captain Rust had agreed that it is important for seafarers to disclose medications if there is a risk of impairment in the performance of their duties;

•  Captain Rust was ultimately responsible for the lives of his crew and the safe return of his ship;

•  Captain Rust’s profession was one which required the utmost compliance with drug and alcohol policies and the utmost care in disclosing relevant matters with the potential to affect his performance; and

•  Whether the possible side-effects were likely is not to the point - it was not for Captain Rust to decide what level of risk or impairment was sufficiently serious to warrant notifying Farstad.

Consideration

[78] Captain Rust held, as a Master, a senior position. While in command of a vessel, a Master has at all times the overriding authority and responsibility for the safety of the vessel and crew, pollution control and overall operation of the vessel. The Master is the management representative on board a Farstad vessel and responsible for ensuring Farstad policies, values and procedures are promoted and adhered to. A Master is required to be safety conscious and reliable. 22 Captain Rust was the regular Master to Far Sirius; a vessel 87 metres in length and weighing 6170 tonnes, with approximately 15 crew members. Farstad’s vessels operate in a hazardous environment, in close proximity to oilrigs and offshore installations. They load, carry and discharge cargo in the open ocean to and from such oilrigs and offshore installations.23

[79] The Fit for Work Policy makes clear Farstad’s commitment to providing a safe work environment and its responsibility to take reasonable steps to protect employees in the workplace should they, or others, be under the influence of alcohol. It also outlines the individual responsibility Farstad employees have to ensure they comply with the policy. The Fit for Work Policy requires employees to be in a state to perform their assigned tasks competently and in a safe manner without impairment due to alcohol use, requiring zero tolerance to alcohol in the work site and making explicit Farstad will not accept any content of alcohol in breath, urine or blood.

[80] The objective of the Offshore Policy is to comply with legal requirements and duty of care responsibilities, protect employees and meet contractual needs. The Offshore Policy outlines the duty of Farstad to take reasonable care to ensure the safety of their employees. Random pre-swing drug-testing on crew change day is amongst the strategies in place to minimise risk to workplace health and safety.

[81] The Testing Procedure confirms random testing of the crew on crew change days. It also stipulates a person will not be fit for work where the 0.02 alcohol limit is exceeded and that “fit for work” includes where a person complies with this limit.

[82] The Code of Conduct sets out standards of behaviour for seafarers employed by Farstad and requires them to remain capable of performing any duty which may be properly required of them at all times, particularly since an emergency may arise at any time on a ship requiring action by the crew. The Code of Conduct also confirms the requirement for a BAC not exceeding 0.02 and the high level of responsibility and authority vested in a Master.

[83] In order to discharge its work health and safety responsibilities to protect all employees, Farstad has decided upon a zero tolerance approach to alcohol in the workplace and the 0.02 BAC limit as the measure for whether an employee was fit for work. This was known by Captain Rust. As an employee of Farstad subject to the Offshore Policy, Captain Rust had safety obligations and a duty of care that covered alcohol and drugs, meaning he was required to:

•  act responsibly at all times;

•  not expose himself or others to safety risks caused by alcohol or drugs; and

•  not undertake work if he believed he was impaired. 24

[84] I am satisfied Captain Rust was aware of the various requirements of the Fit for Work Policy, the Offshore Policy and the Testing Procedure. He knew Farstad’s prescribed BAC limit was 0.02 and that he would not be considered fit for work unless he complied with the 0.02 limit and he was also familiar with the Code of Conduct and its standards of behaviour and conduct for Farstad seafarers. Captain Rust was also aware that as a Master, he had an obligation to enforce compliance with those policies amongst his officers and crew, and generally act as a role model to his officers and crew.

[85] I am not persuaded by the submissions of Captain Rust that his BAC test results on 6 October 2016 are mitigated because he was not in command, had no shipboard duties and his presence on the vessel was for the purpose of being transported to the destination at which his duties were to be performed. This is because:

•  Captain Rust was part of an incoming crew on crew change day;

•  Crew change day was considered to be a day of work and Captain Rust was to be paid for it. He knew he had to comply with Farstad policies when at work. 25

•  It is agreed that, as a supernumerary, Captain Rust might be required to perform duties at any stage;

•  The day’s work commenced on presentation for crew change testing and the practice was that this occurred at the hotel;

•  The routine for joining a ship included the possibility of being tested and Captain Rust knew that he could be randomly tested on a crew change day; and

•  As a seafarer, Captain Rust had to remain capable at all times of performing any duty which might properly be required of him (including in the case of an emergency).

[86] In these circumstances, I do not accept Captain Rust was a mere passenger on 6 October 2016. He himself gave evidence that he would have taken the opportunity to familiarise himself with client procedures regarding the proposed anchor handling operation at sea. 26

[87] Although not acting in the role of Master that day, Captain Rust was still a Master employed by Farstad. This is a position with responsibility for the safety of vessel and crew, ensuring the company policies are promoted and implemented and compliance with HSEQ procedures and process is demonstrated. 27 I find the Farstad submission that it is not to the point that no immediate safety risk occurred on 6 October 2016 more compelling than the submission of Captain Rust that the work environment on 6 October 2016 was not a safety critical one. The basis for the requirement for seafarers to be capable at all times of performing any duty which may properly be required of them is that safety risks can materialise and emergencies do occur, and this may have required Captain Rust to assume a leadership role and/or perform complex tasks. The submission of Captain Rust is made with the benefit of hindsight while the expectation of Farstad is based on its commitment and obligation to provide a safe work environment, where risk is minimised.

[88] As to the events on the Far Scimitar in 2014, outlined in paragraph [23] above, Captain Rust has characterised the various responses of Farstad as “failings” that would prove to be “significant” in that they caused him to suffer depression and anxiety and necessitated ongoing treatment. Captain Rust also asserts that because matters were left outstanding, he was never able to achieve closure and remained aggrieved. He submits he was suffering from a psychological injury at the time he made the decision to consume the alcohol and his judgement and decision making at that time were impaired by that injury.

[89] In this respect, I note Captain Rust reported his encounter with X to Dr Chatfield on 10 October 2016, telling her that it caused him to feel anxious and resulted in him consuming alcohol to calm down. Dr Chatfield expressed the view, based on Captain Rust’s presentation and description of events, that the interaction aggravated Captain Rust’s depression and anxiety and impeded his judgement and decision-making. She also expressed the opinion that Captain Rust’s decision to consume alcohol was a lapse in judgement caused by his mental health condition.

[90] Captain Rust claims one of the “failings” was the lack of response or follow-up to his email sent to Captain Dick Hall of Farstad on 9 October 2015, which stated:

“Good Day Dick,

Following our meeting a couple of weeks ago during which we discussed the unfortunate circumstances surrounding my suspension in early 2014, I now take up your advice to reply to the final report and findings therein in an effort to clear my reputation.

I did have a reply in draft at the time, however, it was never sent. Please find it attached herewith.

I have since confirmed that the complainant ( IR T. Ribergaard ) had fabricated the allegation ( As was stated by me throughout ) in an effort to pursue an agenda of his, details of which I mentioned to you when we met. This was also confirmed when I had an opportunity last April to meet with a former crew member and colleague in a social environment. This IR strongly alluded that the allegation made was indeed fabricated and false. He then continued to say : " This was the last time that T. Ribergaard received support from him and others as his behavior has been destructive to the shipboard morale and environment."

As mentioned during our meeting I still feel that the overall handling surrounding my suspension was flawed and as a result I suffered some damage personally and professionally.

I believe Farstad failed to give me an opportunity to reply to the allegation before the suspension took place and also failed to disclose the details of the allegation for a period of over two months.

With hindsight, It was incorrect to have me resume command of the vessel after my suspension, especially with the complainant and others still serving on that vessel.

However, with all been said and the benefit of time I have since recovered from this very hurtful experience and feel re-confirmed in my new command.

Please ensure that this correspondence is entered in my personal file and I'll let you

decide who in our organization should be made aware of both, the original complaint and my reply.

Kind Regards,

Jürgen” (my emphasis)

[91] I accept Farstad did not implement things recommended after the events on the Far Scimitar in 2014. In particular, if undertaken, the recommended mediation between Captain Rust and the crew may have assisted and better facilitated his return to the Far Scimitar. However, I also consider any “failings” on the part of Farstad prior to 6 October 2016, should be viewed having regard to the following context:

•  While there was no response from Farstad to Captain Rust’s email sent on 9 October 2015, Captain Rust had advised Captain Hall that he had “since recovered” and felt “re-confirmed” in his new command;

•  The 9 October 2015 email was not suggestive of ongoing issues, did not convey an unequivocal request for a response and neither party took any further action following it;

•  The 9 October 2015 email contained no reference to the medical treatment Captain Rust had been seeking and receiving. It did not disclose Captain Rust had taken Pristiq during the period between June and December 2014. Farstad therefore had no insight at that time as to the medical impact of the events in 2014 regarding the Far Scimitar.

[92] Even on 6 October 2016, Captain Rust did not significantly amplify the impact of the events on the Far Scimitar in 2014. While he mentioned to Mr Homsey he had seen X on 5 October 2016, Captain Rust denied there was an altercation and said they had “just clarified a few things.” He did not disclose that the encounter with X had caused him to suffer an exacerbation of his depression and anxiety. He did not tell Mr Homsey that his interaction with X prompted his alcohol consumption. There was no discussion in relation to what prompted the alcohol consumption between them at all. Similarly, Captain Rust did not offer the encounter with X as an explanation for his alcohol consumption in his discussions with Mr Robinson. He did not mention the encounter with X or the impact of the events on the Far Scimitar in 2014 to Mr Robinson. There was nothing put to Farstad in the immediate aftermath of the positive test results that linked his alcohol consumption to them.

[93] As to his submission that Farstad adopted a binary approach to its decision-making, it is clear Captain Rust disputes the ultimate decision made by Farstad that he had engaged in serious misconduct warranting dismissal. Nonetheless, the decision to terminate Captain Rust’s employment was a decision that the Offshore Policy and Testing Procedure contemplated as a response to his BAC test result and it was only made following a process undertaken by Farstad that comprised seeking and considering the responses Captain Rust had elected to make, weighing them up and having regard to other considerations.

[94] The Offshore Policy makes clear a positive alcohol test will be subject to disciplinary procedures, which may include dismissal. The Testing Procedure makes clear the return of a non-negative result or any other breach of the drug and alcohol policies and/or procedures is regarded as serious misconduct which will result in disciplinary action that may include dismissal. In its letter to Captain Rust on 11 October 2016, Farstad stated that his BAC test results demonstrated breach of its policies and consistent with its values, policies and commitment to workplace health and safety and client requirements, was considered serious misconduct that justified summary termination. Captain Rust was, however, afforded the opportunity to provide reasons he considered should be taken into account for the purposes of Farstad deciding whether to terminate his employment.

[95] Captain Rust used this opportunity. He submitted the letter dated 27 October 2016 and attended a meeting with Farstad on 9 November 2016 with his support person from the AMOU, at which matters were discussed further.

[96] Farstad considered Captain Rust’s responses following this meeting. Mr Scott outlined the matters Farstad considered. 28 These included an admission of the breach, the mitigating circumstances submitted by Captain Rust and his encounter with X and the observation that had Captain Rust declared himself unfit before submitting to the test, there would likely have been a lesser penalty and consequence. Mr Homsey also gave an account which outlined the range of factors considered and the process of deliberation.29

[97] It is submitted by Captain Rust that Farstad had discretion in the manner in which it could have responded to his BAC test results. The Fit for Work Policy, Offshore Policy and Testing Procedure recognise counselling, rehabilitation and preventative programs as amongst the range of possible responses to alcohol and drug issues. I recognise this but have also had regard to the material Captain Rust had elected to put before Farstad at the time it made the decision to terminate his employment.

[98] Firstly, while it is true Farstad commits to ensuring a rehabilitation process accessible to employees with a drug and/or alcohol problem is amongst the outcomes available from the Offshore Policy, Captain Rust stated in his letter to Farstad dated 27 October 2016 that he did not have a drug and/or alcohol problem.

[99] Secondly, while raising the events on the Far Scimitar in 2014, his response to them and the adverse psychological symptoms he experienced having encountered X, which he says had affected his cognition on 5 October 2016, Captain Rust limited his disclosures to participation in counselling during and after his suspension and undergoing treatment for depression “on and off”. He did not however provide a medical report from Dr Chatfield (despite having consulted her on 10 October 2016) and nor did he disclose the courses of prescribed antidepressant medication he had undertaken.

[100] Dr Chatfield had in fact written a letter in support dated 12 October 2016. She said it was subsequently amended, without describing how, before it was submitted on 24 November 2016. 30 In making reference to this letter, Captain Rust said “In late November 2016 Dr Chatfield provided me with a letter in relation to my treatment and condition. This letter was dated 12 October 2016 as this was when it was lodged.”31 It is not made clear why this letter was not submitted to Farstad prior to the termination of Captain Rust’s employment. The manner in which it was amended is also unclear and the reason for amending its content and date is not explained. The letter outlined that antidepressants were initiated on 13 June 2014 but this fact was not disclosed to Farstad prior to it making the decision to terminate Captain Rust’s employment.

[101] Captain Rust says he wanted Farstad to understand the seriousness of the impact from the events on the Far Scimitar in 2014 and take it into account as a mitigating factor, but elected not to provide a medical report (when one appears to have been available) or disclose information about the prescription medication he had been taking (when he could have done so). I do not consider that Captain Rust can have it both ways. If he wanted Farstad to consider an outcome other than termination, he ought to have used the opportunity to plead mitigating factors to the full. I consider the approach Captain Rust elected to adopt diminishes his argument that Farstad’s decision-making process was binary in nature.

[102] I have nonetheless had regard to the opinion of Dr Chatfield, that is based upon Captain Rust’s presentation and description of events at his consultation on 10 October 2016, that the encounter with X aggravated Captain Rust’s depression and anxiety and impeded his judgement and decision-making and that his decision to consume alcohol was a lapse in judgement caused by his mental health condition.

[103] Ultimately however, I consider Captain Rust’s failure to self-report prior to being asked to undergo the random BAC tests at 6.15am and 6.30am on 6 October 2016 outweighs any mitigating impact the effect of the events in 2014 on the Far Scimitar and their aftermath may have had on his consumption of alcohol on 5 October 2016. Captain Rust gave evidence that he awoke at 5.00am on the morning of 6 October 2016 and felt in good shape. He recognised he had one hour and fifteen minutes to contemplate whether he was over the 0.02 BAC limit and acknowledged he could and should have self-reported his alcohol consumption but chose not to do so.

[104] As outlined above, Captain Rust was a senior Farstad employee. He held a role of significance and responsibility. He elected not to err on the side of caution. Captain Rust took a high stake gamble he would not be breath-tested, assuming incorrectly he would be fine. He was prepared to undertake his crew change day assuming he was not over the 0.02 BAC limit, despite his alcohol consumption on the previous day and without regard for his safety in the workplace or that of his colleagues. He blew double the prescribed limit.

[105] I am persuaded the evidence of Dr Wright amplifies the seriousness of Captain Rust’s misconduct in presenting for work on 6 October 2016 with a BAC level more than double the prescribed limit. Dr Wright’s evidence that, in light of the combination of anti-depressants he was taking and his significant alcohol consumption, there was a very real and unpredictable risk of Captain Rust having more significant impairment beyond simply that imposed by the 10 beers he consumed the night before, which highlights and intensifies the seriousness of the breach.

[106] In all the circumstances, I am satisfied that Captain Rust’s breaches of Farstad’s policies relating to drugs and alcohol on 6 October 2016 constitute serious misconduct and a valid reason for the termination of his employment.

[107] Turning to the failure to disclose prescribed medication, the Offshore Policy clearly states that all prescribed drugs brought on board a Vessel are required to be declared to the Master before signing on and in the case of a Master, the requirement is to advise the Ship Manager or equivalent before joining. The Testing Procedure requires employees to advise the Master, HR Officer or Employee Health Manager of the specific prescription or ‘over the counter’ medications they are taking.

[108] Captain Rust submits there is confusion at the workplace in relation to what was required of employees and that Mr Homsey had agreed that an employee has to make their own assessment about whether a medication would adversely affect them and then decide whether to disclose.

[109] However, I am satisfied that neither Mr Homsey nor Mr Scott conceded that Farstad employees are only required to disclose prescribed medication where that medication is likely to impact their performance. Rather, each simply agreed that an employee would be required to disclose medication in such a circumstance. Mr Homsey in fact made a distinction between the requirement to disclose “everything” and an employee’s additional obligation to talk to their doctor about any medications which might impact upon the employee’s ability to perform work (and, if there was such an impact, to disclose the nature of that impact). A fulsome reading of Mr Homsey’s evidence indicates notification of all medication is the requirement:

“So the requirement is to advise Farstad if an employee is using a prescription or non-prescription drugs which may affect their ability to perform their duties?---Yes, that's the intention, yes.

So the employee has to make their own assessment about whether it may or may not and then decide whether to disclose it?---Yes, the employee would do that, yes.

So by way of an example, you don't expect your employees to disclose that they're on an antibiotic when they board the vessel, do you?---It's a prescription medication and if they're on an antibiotic one would assume that they had a - you know, pathogen in their body that they're trying to get rid of.  That should be brought to the master's attention on crew change day.

Isn't it only a requirement if it might affect their ability - - -?---It depends - I mean, look, some people get affected by being on antibiotics and others don't, yes.

Well, if an employee is of a view that the medication that they're taking doesn't affect their ability to perform their duties they don't have to disclose it when they board the vessel, do they?---If I can just go to - which - the safety environment manual, for instance:  "On joining the vessel all personnel are to advise any medical conditions and medications which they are using for the forthcoming duty period.  All prescribed medications are required to be reported to the master.  This is to insure the master is aware of any limitations regarding safety of work duties in case the master must report to the ship manager any prescribed medication before departing from home port."  That's various reasons for that.

That's different to what you just told me, which was that it's medication that may affect your ability to perform your duties?---I said they're required to notify of any medication they're on.” 32 (my emphasis)

[110] Mr Homsey further stated:

“You've got a requirement to disclose everything and then you also have a requirement to be able to present at work.  If you're concerned about whether you can actually be at work, depending on the treatment that you're on, you need to talk to your doctor about that.  When you're actually at work though you need to disclose to the master so they're aware of what medications you're on and there is a variety of reasons for that, also including that if they need to advise, for instance - and we've had this before - if there is an injury or serious illness on board the master will have to relay that on to paramedics, doctors, et cetera.  They need to be across what people are on.  Also, since the master has responsibility for medically treating personnel on board before we can get, say, a paramedic down, rigs medic, et cetera - they've got to be across it.  That's why we have a disclosure.  Also, the company has to be assured that, you know, we're presenting our workforce in a fit and compliant condition.” 33 (my emphasis)

[111] I am satisfied Captain Rust breached the Offshore Policy by failing to report he was taking Pristiq and Fluoxetine. I am also satisfied the requirement was to report all prescription medication brought on board a ship, regardless of whether it imposed any limitations on the performance of normal duties. I consider this requirement to be lawful, reasonable and based on compelling safety reasons, which include:

•  A prescription drug may impair the safe performance of work;

•  A prescription drug may show a positive result in a drug screen; and

•  In the case of an emergency health situation or injury on board a vessel, the prescription drug may have implications for the treatment options.

[112] I have noted that on re-hearing, Captain Rust gives evidence that he has never received specific training or instruction in respect of requirements by Farstad to disclose prescription medication. I have also noted Captain Rust’s evidence that he had not experienced any side effects from the medication he had taken and had been advised by his doctors that there were no indications of any potential side effects that would possibly affect his work performance from either medication.

[113] Captain Rust had previously given evidence that he was aware the Offshore Policy dealt with prescription drugs and had agreed that it was important for seafarers and Masters to disclose certain medications if there is a risk that those medications might impair them in the performance of their duties. 34 I have also noted Captain Rust’s evidence that:

•  he did not turn his mind to the requirements of the various policies at the time he was taking Pristiq in July 2014 and Fluoxetine during the 28 July – 1 September 2016 swing; 35

•  he made a conscious decision to keep his condition confidential, offered as an explanation for his breach of policy; 36 and

•  he understands there is a policy about prescription medicine and an obligation to self-declare and with the benefit of hindsight he should have done so on the two swings. 37

[114] Clause 39 of the Offshore Policy, requiring all prescribed drugs brought on board to be declared, sits within a policy with which Captain Rust was familiar. The Testing Procedure contains clauses that deal with the reporting of medication. Having regard to the totality of Captain Rust’s evidence, I am, on balance, satisfied Captain Rust was aware there were policies requiring disclosure of prescription drugs and I do not consider Captain Rust’s concern regarding “the misconceptions about depression that exist in the general public and in senior management across all industries” 38 mitigate his failure to declare them, because Clause 38 of the Offshore Policy outlines Farstad’s commitment to maintain confidentiality and Clause 47 outlines its commitment to provide assistance.

[115] Having regard to Captain Rust’s awareness of the requirement, his seniority and responsibilities and what he knew about Pristiq’s side effects as an antidepressant, I find Captain Rust’s failure to report he was taking Pristiq and then Fluoxetine constitutes was also serious misconduct and a valid reason for the termination of his employment.

[116] In so finding, I have had regard to the proposition that the reason for the termination need not be that which was given by the employer.  39 It can be any reason underpinned by the evidence provided to the Commission. Indeed, facts which existed at the time of the dismissal, but came to light after the dismissal may justify the dismissal when it would otherwise be harsh, unjust or unreasonable.40

[117] In Shepherd v Felt & Textiles of Australia Ltd, 41 the High Court of Australia held an employee’s dismissal may be justified upon grounds on which the employer did not act and of which the employer was unaware when the dismissal occurred42 and the fact an employee’s misconduct was unknown to her/his employer at the time of the termination is immaterial, with facts in existence at the time of the termination capable of justifying it once proven.43

[118] A clear statement of the law was given by the Federal Court in Lane v Arrowcrest Group Pty Ltd 44 (Lane v Arrowcrest):

“… it is still open to an employer to justify a dismissal by reference to facts not known to the employer at the time of the dismissal, but discovered subsequently, so long as those facts concern circumstances in existence when the decision was made. Whether the decision can be so justified will depend on all the circumstances.” 45

[119] The approach in Lane v Arrowcrest was confirmed by the High Court in Byrne v Australian Airlines Limited 46 and adopted by the Full Bench of the Australian Industrial Relations Commission in Metricon Homes Pty Ltd v Bradley.47

[120] In summary, I am satisfied Captain Rust’s breach of the drug and alcohol policies constitutes a valid reason for the termination of his employment. Further, I am satisfied Captain Rust’s breach of the lawful and reasonable policy of Farstad requiring the disclosure of prescribed medication constitutes a valid reason for the termination of his employment.

[121] Accordingly, in all the circumstances, I am satisfied there was a valid reason for the termination of Captain Rust’s employment.

Notification of the valid reason - s.387(b)

[122] Based on the evidence, I am satisfied that Captain Rust was notified of the reason relied upon by Farstad for his termination before the decision was made. In its letter dated 11 October 2016, Farstad advised Captain Rust it considered he had breached its drug and alcohol policies, based on the results of his breathalyser tests, this was serious misconduct and he was invited to provide any reason he considered should be taken into account within seven days, for the purposes of it deciding whether to terminate his employment.

[123] The submissions of the parties suggest there is no dispute that Captain Rust was notified of the reason.

Opportunity to respond - s.387(c)

[124] Section 387(c) of the Act requires me to consider whether an employee protected from unfair dismissal was given an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. In Crozier v Palazzo, 48 the Full Bench of the Australian Industrial Relations Commission held, in respect of the predecessor provision to s.387(c) of the Act, that the opportunity to respond is to be provided before a decision to terminate the employee’s employment is made. In Gibson v Bosmac Pty Ltd,49 Chief Justice Willcox said:

“Ordinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical, commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.” (My emphasis)

[125] Captain Rust submits he was not afforded an opportunity to respond to the reason for termination. He says at the time the allegations were first raised with him in the letter dated 11 October 2016, Farstad had already decided he had breached the policy and that it was serious misconduct that justified summary termination. Captain Rust says he was never given an opportunity to engage in a real discussion which might have influenced the outcome, as it had already been determined by Farstad.

[126] Farstad says that as at 11 October 2016, it was satisfied that Captain Rust had breached the drug and alcohol policy on the basis of the test results and Captain Rust’s admissions that he did not dispute the result. Further, it says it regarded serious breaches of its drug and alcohol policy as serious misconduct which would ordinarily warrant summary dismissal but the “critical question” is whether or not it had already made up its mind, prior to giving Captain Rust an opportunity to respond.

[127] Farstad submits the evidence of Mr Homsey and Mr Scott for Farstad makes “abundantly clear” that Captain Rust was given opportunities to respond both in writing and in person prior to Mr Scott’s decision to dismiss Captain Rust on 15 November 2016. It submits Captain Rust availed himself of both of those opportunities and that Messrs Homsey’s and Scott’s evidence also makes clear that the matters raised by him were considered in the decision-making process. Ultimately, Farstad submits the mere fact that those matters did not outweigh the seriousness of Captain Rust’s misconduct does not equate to a denial of an opportunity to respond.

[128] I am satisfied that Captain Rust knew the nature of Farstad’s concern about his conduct and was given a number of opportunities to respond to the reason. The letter dated 11 October 2016 invited Captain Rust to provide any reason that he considered should be taken into account for the purposes of deciding whether to terminate his employment for serious misconduct.

[129] The AMOU provided a written response on Captain Rust’s behalf dated 27 October 2016. There was then a meeting on 9 November 2016 between Captain Rust and Mr Homsey. I am satisfied that Mr Scott made the decision to dismiss Captain Rust after having reviewed his written response and having discussed it and the 9 November 2016 meeting with Mr Homsey. 50

Unreasonable refusal by the employer to allow a support person - s.387(d)

[130] Mr John Wydell, Industrial Officer for the AMOU attended the meeting on 9 November 2016 as a support person for Captain Rust. I am satisfied Captain Rust was not unreasonably refused a support person in the discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

[131] Captain Rust’s termination involved misconduct and not unsatisfactory performance. This criterion it is not relevant in this case.

Impact of the size of the employer on procedures followed - s.387(f) and Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[132] In relation to s.387(f) of the Act, in its Form F3 – Employer Response to Unfair Dismissal Application, Farstad advised it had 446 employees at the time of Captain Rust’s dismissal. I do not consider that its size impacted on the procedures followed in effecting Captain Rust’s dismissal in any relevant way.

[133] As to s.387(g) of the Act, Farstad employed a Human Resources Director – Offshore to oversee all crewing, human resources and industrial relations issues relating to its employees on vessels in the offshore oil and gas industry across the Asia Pacific at the time of Captain Rust’s dismissal, so this consideration is not relevant.

Section 387(h) – Other relevant matters

[134] The final consideration under s.387 of the Act to which I must have regard is s.387(h), which provides the Commission with a broad scope to consider any other matters it considers relevant.

[135] Captain Rust submitted his dismissal was harsh, unjust and unreasonable because of his length of service and work record, the sanction of termination being disproportionate to his conduct and the impact of termination on his personal and economic circumstances. He submitted consideration of these matters support a finding that the termination of his employment was harsh.

Length of service and work record

[136] Captain Rust submits significant weight should be attached to his almost 16 years of service with Farstad and his impeccable work record. He submits these are factors that weigh heavily in favour of the termination being considered harsh.

[137] Captain Rust submitted it should not be in dispute he had proven himself to be a dedicated, reliable and exemplary employee who was well regarded by peers and management and posited he deserved a degree of leniency in relation to a policy breach. He conceded the breach was a serious failing but an isolated mistake in the context of his lengthy service.

[138] Of Captain Rust, Farstad submitted:

•  his long service and strong performance record heightens the seriousness of his conduct;

•  he was a senior employee with ultimate responsibility for operational and safety matters affecting his crew at sea;

•  he was well aware of Farstad’s drug and alcohol policies and bore ultimate responsibility for enforcing them at sea; and

•  the nature of his experience and position demanded he comply with those policies and exemplify that compliance for his crew.

Disproportionate response

[139] Captain Rust submits that dismissal, considering the severe consequences it has had for him, is manifestly disproportionate to the actual conduct and is thereby harsh.

[140] It was submitted by Captain Rust that his conduct was not serious misconduct, with the policies not warranting such a conclusion and there being no aggravating factors elevating the misconduct to the point of warranting summary dismissal. Captain Rust submitted that even if he had committed serious misconduct, Farstad had a range of formal disciplinary action available to it, this was contemplated in the applicable policies and yet it elected to implement the most serious. He further submits he immediately admitted he had made a serious mistake, showing genuine remorse and that his was not a case involving physical violence, theft, financial damage, the creation of imminent risk or repeated dishonesty.

[141] Captain Rust argues that aside from the BAC test result itself, he had offered a range of mitigating factors warranting leniency and yet Farstad ignored them and imposed summary dismissal, breaching the principle of proportionality.

[142] Farstad submits that Captain Rust’s submission that other disciplinary measures were available fails to grapple with the serious nature of the safety risks posed by his conduct and his obligation to set an example for his crew. It submits Captain Rust diminishes the seriousness of his conduct and displays a lack of insight into it.

Impact of termination on the personal and economic circumstances

[143] Captain Rust is approaching 63 years of age and is the sole income earner in his household. He has been unemployed since his termination and submits it will be extremely difficult to find comparable full time permanent employment, demonstrated by his unsuccessful attempts to find permanent employment to date.

[144] Captain Rust says the termination has caused great family and financial stress and his loss of income has been significant. He also says he has suffered a worsening of the symptoms of his psychological injury since the termination and submits the report of Dr Wright provides that ongoing unemployment will have a very negative impact on his mental health.

[145] It is submitted by Captain Rust that the impact of the termination is at the most extreme end of the harshness scale and he faces a lengthy period of unemployment, probably until retirement age, because of it. In submitting this, Captain Rust relies on Blue Scope Steel Limited v Sirijovski (Sirijovski). 51 He says that case involved: a finding that the dismissal was harsh notwithstanding there had been a serious breach which resulted in a significant loss to the employer and in circumstances where the employee had been given a first and final warning in relation to a safety breach within the six months leading up to the incident. Captain Rust made reference to the following passage from Sirijovski in submitting that his termination is demonstrably harsh and such a finding would be consistent with that case:

“[68] In all the circumstances, we recognise that the Company had good and adequate reasons to terminate the employment of the applicant. The incident on 21 May 2013 amounted to a serious performance failure on the part of the applicant which resulted in significant loss to the Company. The incident was the subject of a full investigation by the Company and no satisfactory explanation was provided for the applicant’s poor performance. The incident occurred within six months of the applicant being given a first and final warning by the Company in relation to a serious safety breach.

[69] However we also recognise that, having regard in particular to the applicant’s long and satisfactory period of service and the impact of the dismissal upon him, the dismissal might be considered to be harsh. The applicant had been employed by the Company or its predecessors for 35 years with no prior warnings in relation to his operational competency. He was 53 years old and had spent his entire working life at the Steelworks. The impact of the termination on the applicant and his family has been severe and there may be few prospects for him to find alternative employment in the Wollongong area. It is also relevant that as a result of the dismissal the applicant missed the opportunity to be selected for retrenchment and receive a redundancy package from the Company. In this regard we note and adopt the Commissioner’s finding that the dismissal was not motivated by any purpose on the part of the Company to avoid redundancy obligations or payments. We also note that there is no certainty that the applicant would have been retrenched and provided with a redundancy package by the Company.

[70] On balance, and having regard to all the relevant factors referred to in s.387, we have come to the conclusion that the termination of the applicant’s employment was harsh, unjust or unreasonable.” 52

[146] Farstad accepts that Captain Rust may have faced difficulty securing employment since his dismissal but submits it is, regrettably, the necessary consequence of his serious breach of the Offshore Policy. It submits a dismissal almost invariably has adverse consequences for the employee dismissed.

[147] Farstad submits the factors raised by Captain Rust in determining harshness are not conclusive, albeit I ought have regard to them. It submits however, they must be balanced against the reason for the dismissal, including the gravity of Captain Rust’s conduct.

[148] Farstad submits relevant matters considered under s.387(h) of the Act must be relevant to the aspect of the misconduct to which they are applied, citing Harbour City Ferries Pty Ltd v Toms (Harbour City Ferries). 53 Farstad drew upon what it said was the one mitigating factor in Harbour City Ferries that addressed the “core issue” of the deliberate breach of the drug and alcohol policy by the Applicant in that case. It said that factor, common to Captain Rust, was the purported need to ‘self-medicate’ and the Full Bench in Harbour City Ferries found it irrelevant to the Applicant’s subsequent decision to present as fit for work. Farstad submits the analysis in Harbour City Ferries applies here, while Captain Rust submits its facts are not properly comparable to the facts before me.54

[149] Farstad submits the approach of Captain Rust in mounting a case on grounds of harshness, with reference to the purported likelihood of impairment at the time Captain Rust would have been called upon to mentor the captain in anchor handling duties, is misconceived. Farstad submits Captain Rust’s breach of policy and its seriousness did not depend upon a likelihood of impairment at the point of performance of any particular task but rather, that its policies require that employees return BAC test results below prescribed levels.

[150] Finally, asserting it is an employer charged with public safety, Farstad submits it is entitled to demand obedience with its policies without discussion or variation.

Consideration

[151] I have considered whether any of the matters raised under section 387(h) of the Act are sufficient to justify that the dismissal was in fact harsh, unjust or unreasonable.

[152] Captain Rust knew:

•  employees of Farstad are required to be able to perform their duties in a manner that does not risk endangering the health and safety of themselves and others;

•  Farstad has chosen to adopt a zero tolerance approach to non-prescribed drugs and alcohol in the work site and a drug and alcohol testing regime is amongst the ways in which it aims to achieve this;

•  in the case of alcohol, Farstad has decided upon a prescribed BAC limit of 0.02;

•  a Farstad seafarer is required to remain capable at all times of performing any duty, which may properly be required of him or her; and

•  Farstad also requires its employees to declare all prescription drugs to the Master of the vessel before signing on and for its Masters, the declaration is to be made to the Ship Manager.

[153] However, Captain Rust produced a result from his BAC testing that was double the prescribed limit. Further, Captain Rust failed to declare he was taking prescription drugs, despite being aware there were disclosure requirements.

[154] I note that at the time of his dismissal, Captain Rust had served Farstad faithfully for nearly 16 years. He was reliable and committed. He had contributed to various safety initiatives and been the recipient of a number of safety awards. He had never been the subject of disciplinary action. I also note that at nearly 63 years of age, it may be difficult for Captain Rust to gain permanent employment as a Master. I empathise with his personal, family and financial circumstances. No doubt the circumstances in which Captain Rust finds himself after a long and commendable career are not the sort he would have hoped for. I must however consider whether the dismissal was harsh, unjust or unreasonable taking into account all of the circumstances.

[155] Captain Rust held a senior and very responsible role. At sea, he was the Farstad management representative with overriding authority and responsibility for the safety of the vessel and crew and was required to work in hazardous environments, with the vessels on which he served required to operate in close proximity to oilrigs and offshore installations. Captain Rust was responsible for ensuring Farstad policies, values and procedures were promoted and adhered to.

[156] While I accept the events from March 2014 on the Far Scimitar have had a negative impact on Captain Rust and have noted the opinion of Dr Chatfield that his decision to consume alcohol was a lapse in judgement caused by his mental health condition, Captain Rust knew he had the option of self-reporting his alcohol consumption prior to being randomly selected to undertake the BAC test on 6 October 2016 but elected not to. He decided to present for work and take the chance he would not be breath tested, without regard for the potential risk he posed to himself and others, if he avoided selection. Had Captain Rust not been randomly selected, he would have presented for work as a seafarer on a crew change day, significantly exceeding the prescribed BAC limit. The extent to which he might have been impaired at various stages during the course of the day and the relationship this bore to the duties he might have been required to perform at those times is not to the point. Nor is it relevant to assert, with the benefit of hindsight, that no emergency arose and the environment that day was not a safety critical one. The fact remains that Farstad wanted to minimise risk and maintain a safe workplace. It had decided to set a prescribed BAC limit in order to achieve this and required its policy to be complied with.

[157] Captain Rust also chose not to disclose his ongoing medical treatment during his employment. Had he done so, he would have not breached the requirement to disclose prescription drugs. There were compelling risk management and welfare reasons for this requirement, outlined at [111] above. Farstad did not want its employees deciding whether or not it was necessary to disclose their taking of prescription medication.

[158] The observations of the Full Bench in BHP Coal Pty Ltd v Schmidt in relation to the approach to ensuring a ‘fair go all round’ in the context of a case involving safety issues are apt:

“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.” 55

[159] Farstad was entitled to regard the breaches of Captain Rust very seriously. I am not persuaded the mitigating circumstances raised by Captain Rust outweigh his prohibited conduct and make his dismissal a disproportionate response.

[160] As such, I am satisfied the circumstances outlined by Captain Rust pursuant to s.387(h) of the Act do not outweigh the prohibited conduct he engaged in.

Conclusion

[161] Having considered each of the matters specified in s.387 of the Act, I am satisfied the dismissal of Captain Rust was not harsh, unjust or unreasonable.

[162] Accordingly, I find that Captain Rust’s dismissal was not unfair. Captain Rust’s application for unfair dismissal remedy is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

Not applicable.

Hearing details:

Matter determined on the papers.

Final written submissions:

A Pollock for Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad on 9 February 2018.

Hall Payne Lawyers for Captain Rust on 12 February 2018.

Australian Mines and Metals Association for Farstad Shipping (Indian Pacific) Pty Ltd T/A Farstad on 17 February 2018.

Printed by authority of the Commonwealth Government Printer

<PR607039>

 1   [2017] FWC 3426.

 2   [2017] FWCFB 4738.

 3   C2017/4121.

 4   Further Statement of Captain Rust dated 27 October 2017, together with Outline of Submissions on Re-hearing dated 27 October 2017 and an Outline of Submissions in Reply dated 17 November 2017.

 5   Attachment ‘A’ to the Agreed Summary of Facts.

 6   Transcript PN 116-123 (27 March 2017).

 7   Further Statement of Captain Rust dated 27 October 2017 at [13].

 8   [1995] HCA 24; (1995) 185 CLR 410.

 9   Ibid at 465.

 10   Sayer v Melsteel [2011] FWAFB 7498.

 11   Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.

 12   Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.

 13   Ibid.

 14   Applicant’s Consolidated Outline of Submissions on Re-Hearing at [49].

 15   Ibid.

 16   The Respondent cited, by way of example only: Vaughan v Anglo Coal (Drayton Management) Pty Ltd [2013] FWC 10101; Madsen v Downer EDI Mining [2013] FWC 5022; Hughes v Shell Tankers Australia Pty Ltd [2014] FWC 1344; Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35; Smith v Mt Arthur Coal Pty Ltd [2015] FWC 4194; Cunningham v Downer EDI Mining Pty Limited [2015] FWC 318; O’Hanlon v Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy [2015] FWC 1029; Ward v Kimberley Ports Authority [2015] FWC 5449 (permission to appeal refused in [2016] FWCFB 1067); Sullivan v North West Crewing Pty Ltd t/as Westug [2015] FWC 8559 (permission to appeal refused in [2016] FWCFB 1068; application for judicial review dismissed in [2016] FCA 1130); Hafer v Ensign Australia Pty Ltd T/A Ensign International Energy Services [2016] FWC 990; Clayton v Coles Group Supply Chain Pty Ltd [2016] FWC 4724; Metro Quarry Group Pty Ltd v John Ingham [2016] FWCFB 47; Wright v AGL Loy Yang Pty Ltd [2016] FWC 1941 (appeal dismissed in [2016] FWCFB 4818); and Bennett v Viterra Operations Pty Ltd [2017] FWC 665.

 17   Further Statement of Captain Rust dated 27 October 2017 at [14].

 18   Exhibit A5 at [20(c)].

 19   Transcript PN 115 (27 March 2017).

 20   Transcript PN 139 (27 March 2017).

 21   Transcript PN 140-142 (27 March 2017).

 22   See Agreed Position Description.

 23   Exhibit R6 at [11]-[12].

 24   Exhibit R2, Attachment CH4, Clause 15.

 25   Exhibit A4 at 4(d).

 26   Further Statement of Captain Rust dated 27 October 2017 at [12(c)].

 27   See Agreed Position Description.

 28   Exhibit R6 at [31]-[32].

 29   Exhibit R2 at [57]-[66].

 30   Exhibit A8 at [25], [29] and Attachment RC2.

 31   Exhibit A4 at [114] and Attachment JR19.

 32   Transcript PN 841- 846 (27 March 2017).

 33   Transcript PN 866 (27 March 2017).

 34   Transcript PN 195-197 (27 March 2017).

 35   Exhibit A5 at 20(b).

 36   Ibid at 20(d).

 37   Ibid at 20(f).

 38   Exhibit A5 at [20(d)].

 39   MM Cables (A Division of Metal Manufacturers Limited) v Zammit (AIRCFB, Ross VP, Drake SDP, Lawson C, 17 July 2000, Print S8106) at [42].

 40   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 at 14.

 41   (1931) 45 CLR 359.

 42   Ibid at 377 per Dixon J.

 43   Ibid at 373 per Starke J.

 44   (1990) 27 FCR 427.

 45   Ibid at 456.

 46   (1995) 185 CLR 410 at 430 per Brennan CJ, Dawson and Toohey JJ and 467 per McHugh and Gummow JJ.

 47   181 IR 115 at [11].

 48   Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at [75].

 49   (1995) 60 IR 1 at 7.

 50   Exhibit R6 at [31]-[32].

 51   [2014] FWCFB 2593.

 52   Ibid.

 53   [2014] FWCFB 6249.

 54   Applicant’s Consolidated Outline of Submissions on Re-Hearing at [110].

 55   [2016] FWCFB 1540 at [8].