DECISION

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

Daniel Racek
v
DP World Sydney
(U2018/4742)

Application for Relief of Unfair Dismissal – valid reason – breach of Alcohol and Other Drugs Policy – whether mitigating factors – harshness – significant personal and economic impact.

Introduction

[1] On 7 May 2018 Daniel Racek (Applicant) made an application (UFD Application) to the Fair Work Commission (Commission) pursuant to section 394 of the Fair Work FW Act 2009 (FW Act) for a remedy in respect of his dismissal by DP World Sydney (Employer/Respondent) on 13 April 2018.

[2] On 5 June 2018 the Respondent filed a response to the unfair dismissal application. At that time it took no objection to the UFD Application. However, on 2 July 2018 the Respondent lodged a Form F4 (Objection to Unfair Dismissal Application) objecting to the UFD Application on the basis that, it contended, it was out of time (i.e. lodge more than 21 days after the dismissal took effect).

[3] The out of time jurisdictional objection was resolved in favour of the Applicant. 1

[4] Consequently, it became necessary to program the matter for a substantive hearing to determine the merits of the matter. Both parties were given permission to be represented pursuant to section 596 of the FW Act. I was satisfied that the matter was invested with sufficient complexity such that I would be assisted in the efficient conduct of the matter if I allowed both parties to be represented (s.596(2)(a)).

[5] At the hearing:

a) The Applicant was represented by Annette Wood, a solicitor with Able Defence Lawyers. The Applicant gave evidence on his own behalf and was cross examined. There was also uncontested evidence received from the Applicant’s co-workers, Ben Lawrence and Mark Kearns about the events of 7 April 2018.
b) The Respondent was represented by Stephen Crilly, a Senior Associate with Seyfarth Shaw Australia. The following people gave evidence for the Respondent:
i. Maxwell Phillip Kruse – Chief Operations Officer,
ii. Craig Thomson – Chief HR Officer,
iii. Stephanie Go – HR Advisor,
iv. Bastiaan Willem Hokke – General Manager Operations Sydney, and
v. Karlie Hucker-Stewart – HR Manager.

[6] Final written submissions were subsequently filed by the parties on 7 December 2018. In coming to this decision I have had regard to those final submissions, the witness evidence at the hearing and the following exhibits:

a) Exhibit 1 – Statement of Agreed Facts,
b) Exhibit 2 – Submissions of the Applicant,
c) Exhibit 3 – Witness Statement by Daniel John Racek,
d) Exhibit 4 – Second Witness Statement by Daniel John Racek,
e) Exhibit 5 – Respondent’s Outline of Submissions,
f) Exhibit 6 – Statement of Stephane Go,
g) Exhibit 7 – Witness Statement of Craig Thomson,
h) Exhibit 8 – Witness Statement of Bastiaan Willem Hokke,
i) Exhibit 9 – Witness Statement of Karlie Stewart,
j) Exhibit 10 – [no exhibit 10 marked],
k) Exhibit 11 – Email from Stephanie Go dated 12 April, and
l) Exhibit 12 – Text messages from phone of Bastiaan Willem Hoke.

Background

[7] The following matters were either agreed between the parties or not otherwise substantially contested. Consequently, I make the following findings of fact:

a) On or about 23 January 1995, the Applicant began employment as a stevedore at a container terminal located at Port Botany, NSW (Terminal).
b) The business of Mr Racek's employer transferred on several occasions, with the result that, as of April 2018, his employer was DP World.
c) Mr Racek's continuity of service was not broken by these transfers of business.
d) Mr Racek possessed skills required to be allocated to a variety of roles at the Terminal, including:
i. acting as a Deck, Yard or Rail Foreman; and
ii. driving/operating quay cranes, heavy forklifts, inter-terminal vehicles, rubber tyre gantries, and buses.
e) The Respondent is in the business of stevedoring operations involving loading, unloading and temporary storage of shipping containers for its customers, who are primarily shipping and transport companies.
f) The work environment is safety sensitive and work must be performed by Stevedores with a highest level of safety standard adherence, to ensure the safety of themselves, their colleagues and the Respondent’s customers.
g) The Respondent has an Alcohol and Other Drugs Policy (AOD Policy). Stevedores must not test positive in breach of the AOD Policy (i.e. have a blood alcohol reading of more than 0.02%).
h) There is no evidence that the Applicant ever received the AOD Policy or that he was trained in it. This was conceded by Mr Crilly. 2
i) 7 April 2018 was Mr Racek's 55^th birthday.
j) On that day (7 April 2018):
i. Mr Racek was rostered on for an evening shift.
ii. Mr Racek was allocated to the role of Deck Foreman.
iii. Mr Racek’s mental facilities were affected by a range of personal circumstances.
iv. On his way to work Mr Racek purchased five (375 ml) cans of Wild Turkey (4.8% Alc/Vol per can).
v. Mr Racek commenced work at 2.00 pm.
vi. Within ½ hour of commencing work, Mr Racek drank at least four of the five cans of Wild Turkey.
vii. At 2.56 pm Mr Racek sent a text message to a fellow worker, Ben Lawrence (a Crane Driver). Mr Racek wrote,

“Tell my family I love them with all my heart, please, and I’m sorry”

viii. Mr Lawrence notified his Team Leader, Mark Kearns. Mr Kearns attended Mr Racek’s work site. He observed the Applicant standing beside an open hatch. Mr Kearns spent about ½ hour “talking Mr Racek down”. It was Mr Kearn’s evidence (submitted by the Applicant) that Mr Kearns “at no time did I suspect Dan was intoxicated. I just presumed he was in a real bad headspace.”
ix. Neither Mr Kearns nor Mr Lawrence reported Mr Racek’s threat of suicide to more senior management.
x. Of great concern Mr Kearns allowed Mr Racek to return to work.
xi. The Applicant was selected for random testing. At 16:31 hours the Applicant had a blood alcohol concentration (BAC) reading of 0.118%.
xii. In accordance with the AOD Policy, the applicant was required to wait for 30 minutes and undergo a second test which was then sent to a laboratory for confirmation.
xiii. The Applicant was stood down on pay while the second test result was being confirmed. He was offered a cab-charge and access to the Respondent’s Employee Assistance Program.
xiv. Despite the initial blood alcohol reading the Applicant elected to drive out of the Respondent’s premises.
xv. The Respondent received the second BAC result. The second BAC was 0.116%.
xvi. After the BAC tests, Mr Racek was directed not to finish his shift.
xvii. Mr Racek was offered a Cabcharge voucher but did not accept it.
xviii. Mr Racek drove his personal vehicle out of the Terminal car park.
xix. Mr Racek was referred to the Employee Assistance Program.

k) On or about 11 April 2018 to Respondent asked the Applicant to attend the meeting to discuss the events of 7 April 2018.

l) On 12 April 2018:
i. Mr Racek attended a meeting at the Terminal in relation to the events of 7 April 2018.
ii. Present at the meeting were Bastiaan (Bas) Hokke (General Manager, Operations for the Terminal) and Karlie Hucker-Stewart (Human Resources Manager) for DP World, Mr Racek, and his support person Brad Dunn.
iii. In this meeting Mr Racek indicated that the reason for his BAC reading on 7 April 2018 was that he had gone to lunch with his friends to celebrate his birthday prior to attending for work and that his friends had (unbeknownst to him) spiked his drinks.
m) On 13 April 2018,
i. Mr Racek attended a further meeting at DP World with the same people present as at the 12 April 2018 meeting.
ii. At this meeting, Mr Racek's employment was terminated.
n) On Sunday, 15 April 2018 the Applicant wrote an impassioned letter to Mr Hokke (15 April Letter). He claimed that he had lied when providing explanations about the events of 7 April 2018 (in the meetings conducted on 12 and 13 April 2018). The Applicant then set about explaining what he claimed to be the truth of the situation. He admitted to bringing alcohol to work and consuming it. He wrote about his low mood on that day. He then sought to explain the poor decisions he made by describing matters which are deeply personal to him and distressing to read. The Applicant wrote,

“On ending this letter, I once again pleaded and request that you might find in your heart and soul to forgive me for my actions and reconsider reinstating me within the company.”

o) On 16 April 2018, Mr Hokke received and read the letter Mr Racek wrote on 15 April 2018.
p) On 17 April 2018, a letter confirming the termination of employment on 13 April 2018 was sent to Mr Racek. Mr Racek did not receive the letter until 9 May 2018.

[8] The Applicant submits he was unfairly dismissed and seeks an Order that he be reinstated. In the alternative he seeks an order for compensation.

Protection from Unfair Dismissal

[9] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[10] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[11] There is no dispute, and the Commission, as presently constituted, is satisfied, the Applicant has completed the minimum employment period, and is covered by an enterprise agreement. Consequently, the Commission, as presently constituted, is satisfied the Applicant was protected from unfair dismissal.

[12] I will now consider if the dismissal of the Applicant by the Respondent was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[13] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW 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 388.”

Was the Applicant dismissed?

[14] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. In the present matter the Respondent concedes and, consequently, I am satisfied that the Applicant was dismissed from his employment with the Respondent within the meaning of s.386 of the FW Act.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[15] The Respondent is not a small business.

Was the dismissal a genuine redundancy?

[16] The present matter does not involve a case of genuine redundancy.

Harsh, unjust or unreasonable

[17] Having been satisfied of each of s.385(a),(c)-(d) of the FW Act, the Commission must consider whether it is satisfied that the dismissal was harsh, unjust or unreasonable. The criteria the Commission must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the FW 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.”

[18] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 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.”

[19] I am under a duty to consider each of these criteria in reaching my conclusion. 3

[20] The Applicant submits the dismissal was harsh, unjust or unreasonable. He submitted that:

a) “Mr Racek was employed by DP World for almost 23 years, until he was dismissed on 13 April 2018.
b) Mr Racek was dismissed by DP World following a positive alcohol test at work. Mr Racek had attended work on 7 April 2018, in a suicidal and depressed state of mind. Mr Racek consumed 5 cans of Wild Turkey, with the sole intention of committing suicide. His consumption of alcohol was not to breach the DP World, Drug and Alcohol Policy but to gain the courage to go through with his plan to end his life.
c) Mr Racek initially was embarrassed and given poor advice by his Union Delegate. He did not realise at any stage that he was facing dismissal from his employment. Mr Racek ultimately revealed to the employer his compromised mental state at the time.
d) In subsequent meetings with DP World, Mr Racek was led to believe that avenues were being explored for him to be reinstated within the workplace. Upon meeting stringent requirements, such as negative breath test and completion of a Mental Health Plan.
e) The employer later retracted from discussions regarding reinstatement or re- deployment to a sister company.

Valid reason – section 387(a) of the FW Act

f) The question arising is, “Whether there was a valid reason for the dismissal relating to Mr Racek’s capacity or conduct (Including its effect on the safety and welfare of the employees)”, and do these need to be considered?
g) There is a partial concession and recognition that Mr Racek’s conduct in being intoxicated at work on 7 April 2018, was in breach of the DP Work, Drugs & Alcohol Policy.
h) Although drunkenness may constitute a valid reason for dismissal (such as in Robins v Sir Charles Gairdner Hospital (13 July 1999, AIRC) it is submitted that given the extenuating circumstances surrounding the conduct and the failure of DP world to take the required steps, that this was not sufficiently serious to justify dismissal.
i) The employer’s reason for Mr Racek’s dismissal under the Drugs and Alcohol Policy is only partially conceded as valid for the following reasons:-
i. The Applicant was aware that other employees had positive Alcohol Testing results and they had not been automatically dismissed from their employment with DP World. This was conceded by several of the Respondent’s witnesses at the Hearing on 27 November 2018.
ii. The Respondent witness, Craig Thomson, admitted that there could be circumstances where an employee with a positive test result may not be terminated. 4
iii. The DP World, Drug and Alcohol Policy does not give any indication anywhere that there is a certain level of testing that would lead to automatic dismissal. 5 6 7 Such as:-

A. High Range – 0.150 and above, prescribed concentration of alcohol
B. Mid Range – 0.08 – 0.149, prescribed concentration of alcohol
C. Low Range – 0.05 – 0.08, prescribed concentration of alcohol
D. Special Range – 0.02 – 0.049, prescribed concentration of alcohol.

j) Whilst the policy does indicate that a positive BAC test result would occur at levels of 0.02.⁸ [sic] The policy fails to stipulate or provide any further information in relation to positive alcohol levels.
k) The DP World, Drug and Alcohol Policy simply says that a breach of the policy may lead to termination of employment. Nowhere does it definitively state that breaches would result in an employee’s dismissal from employment.
l) The Policy indicates that where an employee tests positive they may not return to the workplace until they obtain a negative BAC test. It does not indicate automatic dismissal of the employee. 9
m) The Policy also indicates a practice and procedure to enable the employee to return to work, through an Employee Assistance Program. 10 This program can be made a mandatory program with set requirements that an employee must follow before being allowed to resume their employment duties.
n) The Policy also indicates that an employee could get a medical clearance and return to the workplace. 11
o) In meetings with Mr Racek, there were discussions regarding his reinstatement to the company. 12 13
p) Mr Hokke at the Hearing on 27 November 2018, confirmed that he would not opposed to reinstatement of Mr Racek. 14
q) Ms Hucker-Stewart at the hearing on 27 November 2018, also indicated that she would support Mr Racek’s reinstatement if it was what Mr Hokke wanted. 15

Other matters – section 387(a) of the FW Act

r) Mr Racek was employed by DP world for 23 years, until he was dismissed on 13 April 2018.
s) Mr Racek was dismissed from DP World for breaching the Drug and Alcohol Policy. It has been conceded by the respondent that there is no evidence that the Applicant ever received the policy or received any training in the policy at all.  16
t) It is respectfully submitted that the Applicant’s termination was harsh, unjust and unreasonable on the basis of being terminated for breaching a workplace policy. Particularly when the evidence is clear that the policy was never received by Mr Racek. Nor was he trained in the policy by the employer.
u) It would therefore be respectfully submitted that the Respondent’s reliance upon dismissal of Mr Racek according to a breach of the Drug & Alcohol Policy is invalid. Particularly in light of the fact that the Respondent is asking that the Applicant adhere to a Policy that there is no evidence they ever received or was given any training for. 17 
v) It would not be possible to expect that employees including the Applicant can be expected to follow and know when they have breached a Policy of the Respondent in this instance.
w) There were clear breaches of Workplace Safety and the Employers Duty of Care towards Mr Racek on 7 April 2018. The evidence is clear from the Hearing on 7 November 2018 and 27 November 2018, that Mr Racek’s mental faculties were affected on the following basis:-
i. On 7 April 2018, Mr Racek was struggling with dealing with a variety of personal issues including sexual abuse from his father as a child, the death of his father in law, his wife’s cancer and his second child’s still birth and the theft of her body by a funeral service.
ii. These issues were particularly difficult on that date as it was both his and his father’s birthday, and close to the anniversary of the still birth and his father in law’s death.
iii. As a result, Mr Racek was suffering from a severe episode of depression and contemplating taking his own life.
iv. Whilst driving to work he decided to go through with this and purchased 5 cans of Wild Turkey with the intention of drinking these to strengthen his resolve to end his life.
v. After arriving at work Mr Racek, who is not usually a drinker, consumed the 5 cans within half an hour and stood at an open hatch on board a vessel with the intention of jumping off and ending his life.
vi. Mr Racek sent a text message to a Mr Ben Lawrence, a Crane Driver employed by DP World. Mr Racek apologised and asked him to tell his family he loved them.
vii. Mr Lawrence subsequently notified Team Leader, Mr Mark Kearns. Mr Kearns attended the location and spent 30 minutes talking Mr Racek out of killing himself. During this time it was obvious the mental state that Mr Racek was in.
viii. Despite both Mr Lawrence and Mr Kearns both being aware of the mental state Mr Racek was in, they both failed to notify management of Mr Racek’s suicidal ideation. 18 19
ix. Management were notified and became aware of Mr Racek’s struggling mental health on 7 April 2018, yet failed to do anything to address them. 20 21 22
x. There were fundamental flaws and negligence in the duty of care towards Mr Racek by the employer. 23
xi. There were systemic failures for employees and management to follow any form of protocol to pass up the line concerns for the mental health of Mr Racek. 24 Or to address serious risks within the workplace.25 26 27
xii. There was clear evidence that despite the systemic failures of DP World employees and management to follow any form of protocols in relation to mental health within the workplace, that they have failed to address this in anyway even now.
xiii. The employer further breached their duty of care and responsibilities as an employer in not automatically notifying Workcover of the suicide attempt of Mr Racek.
xiv. The employer is obligated to report the incident to Workcover and their workplace insurer. This should be a standard operating procedure by the employer.
xv. Whilst it was not the subject of the Hearing on 7 November 2018 or 27 November 2018, and it was not put to any witness in the proceedings, the applicant is aware that approximately 6 weeks prior to his suicide attempt at work that a DP employee at the Brisbane branch did succeed in killing themselves at the workplace.
xvi. It would appear that despite the suicide attempt of Mr Racek and the successful suicide of another employee that the Respondent Employer has failed to address these systemic flaws.
xvii. Whilst there are claims that there are policies in place by the Respondent in relation to ensuring that staff and management are aware of Workplace Safety and the requirement to ensure a Duty of Care.
xviii. The Respondent has been negligent and chosen to make an example of Mr Racek due to his breach of the Policy. However they have failed to identify and remedy their own failures in relation to breaches of Policy themselves.
xix. This was an isolated incident and one brought on by a mental illness.
x) DP World have not implemented a fair and transparent system of enforcing the Drug and Alcohol Policy. There were at the Hearing on 27 November 2018, clear admissions made by the Respondent’s witnesses that of particular note the Head of the Maritime Union’s son had been afforded a second chance after a positive Alcohol Test. They were not immediately terminated for a first time breach of the DP World Drug and Alcohol Policy. 28
y) It was also conceded that not all staff are treated equally as a result of discretion being afforded to some and not others such as Mr Racek. 29
z) This was the first offence ever committed by Mr Racek after almost 23 years of loyal service to DP World.
aa) This was conceded by the respondent witness, Ms Stephanie Go. 30
bb) Mr Hokke has stated that he would not against Mr Racek being reinstated to the company upon him being cleared medically for his mental health.
cc) Under the DP World, Drug and Alcohol Policy the following could be implemented prior to Mr Racek being reinstated:-

i) Mental Health Plan
ii) Negative Alcohol Tests
iii) Random Alcohol Testing within the workplace
iv) Mandatory Employee Assistance Program, which is to include Counselling
v) A medical Clearance

dd) A subsequent meeting took place on 27 April 2018 where DP World indicated to Mr Racek that there was a path to resume his employment. This was later rescinded.
ee) The termination is adverse action (s342 Fair Work Act 2009) in breach of the general protection against discrimination in s351 Fair Work Act 2009 (Cth) as well as s15(2)(c) Disability Discrimination Act 1992 (Cth) (Henceforth ‘DDA’)and s49D(2)(c) Anti-Discrimination Act 1977 (NSW) (Henceforth ‘ADA’).
ff) Section 4 DDA and Section 4 ADA both define disability to include:

‘a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour’;

The DDA goes on to clarify:

”To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.”

gg) Mr Racek suffers from Depression, being a disorder that affects his thought processes, emotions, and judgement resulting in disturbed behaviour, namely his intention to commit suicide, and his self-induced intoxication in order to aid his resolve in committing suicide.
hh) As such the termination was due to Mr Racek’s disability and is therefore unlawful and as such unjust.
ii) The commission has previously considered the effect of dismissal on the employee and his personal situation which are similarly of importance in this matter (Byrne v Australian Airlines (1995) 185 CL 410; Kerry v Ansett Australia Ltd (21 September 1998, AIRC)). The dismissal has greatly impacted on Mr Racek including upon his mental health, which was already in a fragile state, although he has now sought treatment and is improved.
jj) It has also impacted upon his relationship with his wife, and his ability to provide for his family, including his wife who is battling cancer.
kk) The circumstances of the conduct are such that Mr Racek was suffering from depression and immediate suicidal ideation, such that the misconduct was actually done for the purposes of gaining courage to end his life.
ll) Mr Racek has been employed by DP World for almost 23 years without incident. This long unblemished record should be taken into account in favour of Mr Racek (Streeter v Telstra Corporation Limited (2008) 170 IR 1).
mm) Further, it is understood that since Mr Racek’s dismissal, DP World has changed their policy to include a warning being given prior to dismissal. Although this was not in place at the time of the dismissal, the changing attitude of the employer to this conduct could be taken into account as a factor relating to differential treatment.

Remedy

nn) Mr Racek is seeking an order for reinstatement.
oo) Reinstatement is the primary remedy as the commission may only make an order for payment of compensation when reinstatement is inappropriate (s390(3)(a) Fair Work Act 2009).
pp) An order for reinstatement must result in reappointing Mr Racek to the same position or to a different position in terms that are no less favourable than those on which he was employed immediately preceding the dismissal. (s391(1) Fair Work Act 2009).
qq) It is submitted that reinstatement is appropriate in the present case, as the misconduct was a result of a mental health episode, for which Mr Racek is now receiving treatment.
rr) Management at the Hearing on 27 November 2018, as per the evidence of Mr Hokke and Ms Hucker-Stewart that reinstatement of employment was not opposed.”

[21] The Respondent submits the dismissal was not harsh, unjust or unreasonable. It submitted that:

a) Apart from the additional matters set out in these submissions, the Respondent (DP World) relies on its written outline of submission dated and filed on 22 October 2018, which was marked as Exhibit 5 (Outline).

Valid reason for dismissal

b) None of the evidence before the Commission affects the submissions in the Outline regarding the existence of a valid reason for dismissal in this case. Principally, whilst working in a responsible and safety-critical role on a ship, 31 beginning very shortly after the start of his shift at 2:00 pm, the Applicant (Mr Racek) consumed four cans of a Wild Turkey drink.32 He did not leave his point of work until selected for a random drug and alcohol test.33 When tested at around 4:30 pm he returned an initial reading of 0.118% BAC, followed by a marginally lower reading in a second test around 30 minutes later.34 Mr Racek conceded that he was affected by the alcohol he consumed.35
c) That conduct was a breach of DP World’s Alcohol and other Drugs Policy (AOD Policy). While there is no evidence before the Commission that Mr Racek was trained in that policy, he was aware both that DP World had such a policy 36 and that he was required to read and comply with it.37 The core features of the AOD Policy are further referred to in the DP World Employee Handbook,38 which he also accepted that he was required to read and comply with.39
d) In any event, this is not a case where an employee’s conduct constitutes grounds for dismissal only because it is a breach of a policy, such that the way that employees were notified of and trained in the policy becomes pivotal. Even in the absence of any AOD Policy, a reasonable employee would know that one cannot consume or be impaired by alcohol be impaired while working at a safety-critical site. Intoxication which renders an employee unfit to be entrusted with his or her duties is serious misconduct 40 (though conduct need not constitute serious misconduct to be a valid reason for dismissal), and arguably a breach of NSW employees’ statutory duty to take reasonable care for their own health and safety and that their acts or omissions do not adversely affect others’ health and safety.41
e) In the circumstances set out above, an employer in DP World’s position was more than justified in dismissal as a valid response to the conduct. That is all that is required to satisfy the requirement in s 387(a) of the Fair Work Act 2009 (Cth). 42
f) For completeness, Mr Racek’s reply evidence does not affect the submissions in the Outline regarding the proposition that his termination could not have been for a valid reason because it was unlawful. That proposition relies on establishing that Mr Racek suffered from a disability at the relevant time. There was no medical evidence of that, and Mr Racek is not qualified to retrospectively diagnose himself with a mental illness. 43 Further, as to the allegation of unlawful adverse action, what is relevant are the actual reasons for which a decision-maker acts (in this case, the intoxication and breach of policy) and not other reasons which might be closely connected to those matters but were not in the decision-maker’s mind (and could not have been in this case, because they were not disclosed).44

Procedural fairness

g) The main attack by Mr Racek on the fairness of the procedure leading to his dismissal was that he did not know that dismissal was a potential outcome of the disciplinary process. That assertion is not credible and cannot be maintained in the face of the evidence.
h) First, reviewing Mr Racek’s ‘transcript’ of the disciplinary meeting on 12 April 2018, Mr Hokke made comments regarding the explanation that the persons whom Mr Racek said had adulterated his drinks with spirits had made him risk his job, and that DP World faced a ‘massive dilemma’ because other employees returning lower alcohol readings had previously been terminated. 45 Mr Racek himself made representations to Mr Hokke and Ms Hucker-Stewart which were plainly intended to convince them not to terminate his employment. Mr Racek was taken to various such passages in cross-examination;46 he further conceded that at the end of the meeting, termination was a possible outcome and it was left to be decided.47 In the following discussions with his support person, Mr Racek again made comments about losing his job.48
i) Then, Mr Racek was sent a letter inviting him to a meeting on 13 April 2018 which explicitly stated that the disciplinary action under consideration ‘may include consideration of your ongoing employment’. 49 Notwithstanding Mr Racek’s insistence that he did not receive that letter, Ms Go gave unchallenged evidence that she sent it to him by email, and the correspondence was tendered.50 Mr Racek conceded that from time to time Ms Go sent him documents on behalf of DP World, and that she had his email address.51
j) The next day, at the meeting on 13 April 2018, Mr Racek’s own ‘transcript’ records that at very outset, Mr Hokke advised him that DP World was proceeding ‘into the termination direction’. 52  Even if he had not believed up to this point that termination was not a possible outcome, there is no reason that he should not at this meeting have put any matters which he wished DP World to consider as exculpatory or mitigating circumstances. He did not do so.
k) Besides what was said at the meetings on 12 and 13 April 2018, DP World submits that the Commission ought draw inferences from the fact that Mr Racek recorded them. The ‘transcripts’ of these meetings annexed to his statement which was marked as Exhibit 3 are clearly, on their face, word-for-word recounts of lengthy meetings. 53 They are documents of the same kind as the ‘transcript’ of the meeting on 27 April 2018, which Mr Racek admits was generated by transcribing a recording he made without Mr Hokke or Mr Thomson’s consent.54 Mr Racek was taken to errors in the ‘transcripts’ which are characteristic of a person hearing, but not understanding, what is being said by the participants55 – perhaps most obviously, writing “msick(??)” instead of MSIC, a term well-known to Mr Racek as a stevedore of long standing.56 Those are not errors which would be made by a person’s spouse typing up handwritten notes.
l) Mr Racek’s denial of having recorded the meetings is therefore not credible; nor was his explanation that ‘a lot of what was said was poignant to me, and I took a mental note of what was going on’. 57 His denials should not be accepted. One then asks why Mr Racek chose to record the meetings. DP World submits the Commission ought infer that it because Mr Racek appreciated the gravity of the circumstances and the potential that he might need or want an accurate record of the discussions in future. That state of mind is inconsistent with an unawareness that termination was a possible outcome.
m) Finally, even disregarding all of the above matters, it should have been obvious that serious disciplinary action potentially including termination was on the table. Mr Racek had returned what was (as he was told on 12 April 2018 58 ) an unprecedentedly high BAC reading for alcohol, at a safety critical site, while performing a responsible role, and had not raised the mitigating factors now relied upon before the Commission. Nothing DP World said or did gave him a reasonable basis to think that dismissal was not a potential outcome.
n) DP World otherwise relies on the Outline in relation to ss 387(b)-(g). Mr Racek knew of the reason for dismissal at all times and had two opportunities to respond. He was accompanied by the support person of his choice at all relevant meetings. Sections 387(d)-(g) are not relied upon and/or relevant in this case.

Other relevant matters

o) Generally DP World repeats and relies on the matters set out in its Outline regarding s 387(h). Below however it addresses additional or supplementary issues arising on the evidence, and which the Commission has directed that it ought address.

Mr Racek’s state of mind

p) The Commission directed the parties to address the significance of the impairment of Mr Racek’s faculties on 7 April 2018. In this respect, a number of matters may be shortly stated:
q) First, there is no medical evidence as to what occurred on that day, or indeed at all. The extent of the probative evidence before the Commission is as to what Mr Racek was thinking and feeling at the time.
r) Those factors are matters which the Commission can properly take into account in the usual way in determining, for example, the degree to which Mr Racek’s personal circumstances might render a dismissal harsh.
s) There is not, however, evidence before the Commission which would allow it to conclude the extent to which Mr Racek’s judgment was impaired by the symptoms of any given illness. It would not, for example, be open for it to determine that Mr Racek was effectively deprived of his capacity to make decisions or that his conduct was effectively involuntary, such that he should not be held to account for it.
t) Further, as set out in the Outline, it was within Mr Racek’s power to raise these issues for DP World’s consideration. He consciously chose not to do that. In this way (though on very different facts), Mr Racek effectively placed himself in the same circumstances as the applicant in Mulroney v Alfred James & Sons Pty Ltd. As Gostencnik DP said in that case,
…the Applicant maintained that the Respondent did not take sufficient account of his mental health in the dismissal or in dealing with his conduct. Mr Murray maintained that the Applicant did not inform the Respondent of his mental illness at any stage and that he was not aware of the illness until after until after the termination. I am not satisfied that the Applicant has established that he informed the Respondent of his mental illness, and in any event, the Applicant offered no medical evidence that his conduct towards Ms Sloan was caused or affected by his mental illness. 59

Failure of reporting processes

u) The Commission also specifically directed that the parties address the failure of reporting processes by which Mr Racek’s behaviour and state of mind of 7 April 2018 were not reported up the chain to management. The reasons for that failure are not clear on the evidence. While it is of concern that this occurred, DP World submits that this issue should be given no or very little weight in the disposition of the application before the Commission.
v) The immediate consequence for Mr Racek’s dismissal of the failure was that Mr Hokke and Ms Hucker-Stewart were deprived of information that would have been relevant to their decision. However, Mr Racek had multiple opportunities to remedy that by putting the reasons for his behaviour to DP World for consideration. He chose not to do that on either 12 or 13 April 2018. As a result, those matters were not taken into account by Mr Hokke or Ms Hucker-Stewart.
w) Mr Racek must bear a large part of the responsibility for that. In this respect, there is good sense in the observation of the Full Bench of the NSW Industrial Relations Commission that, where an employee wishes the employer to take mental illness into account as a mitigating factor – even where the employer is aware of the mental illness, which it was not in this case – he or she bears the greater onus to bring it to the employer’s attention. 60
x) As such, the failure of the reporting chain in this instance:
y) does not affect that the conduct constituting a valid reason for dismissal occurred;
z) cannot be said to be responsible for Mr Hokke or Ms Hucker-Stewart not taking relevant factors into account, because Mr Racek was complicit in concealing those matters from them;
aa) does not, of itself, increase the impact of the dismissal on Mr Racek; and
bb) does not otherwise bear on the specific issue of whether the dismissal was harsh, unjust or unreasonable.
cc) One further issue raised by the Commission is the appearance that after Mr Racek’s dismissal, and once relevant persons became aware of the full detail of what occurred on 7 April 2018, no steps were taken to ensure that this failure was not repeated. In short, this is not relevant to the question for determination before the Commission. Subsequent events could only be relevant insofar as they shed light on facts that existed at the time of termination; a dismissal which was otherwise fair at the time does not become retrospectively unfair by reason of things the employer did or failed to do afterwards, just as an employer cannot retrospectively ‘cure’ a dismissal which is unfair due to procedural deficiencies or the absence of a valid reason.
dd) As with facts which may justify a dismissal, 61 it must be facts existing at the time of termination which are relevant. As such, any failure by DP World in this respect (which could not be made out on the evidence without the company having had a specific opportunity to lead evidence addressing that issue) would be regrettable, but is not relevant in this matter. The Commission would err if it took it into account.

Alleged failure to provide assistance

ee) DP World generally relies on its submissions in the Outline regarding the various points where Mr Racek alleges that he should have been provided with assistance which was not forthcoming. DP World makes two supplementary submissions on this issue that arose from the evidence.
ff) The first concerns the contention that Mr Racek was not advised of the availability of the Employee Assistance Program (EAP) provided by DP World until after he was terminated. 62 That submission is not supported by the evidence. In cross-examination, Mr Racek admitted it was possible that Mr Collie advised him of the EAP’s availability on 7 April 2018, that he was not ‘sure on that’, that he was intoxicated at the time, and that his memory and recollection of events is affected by intoxication;63 he further accepted that he was required to have read the Employee Handbook,64 which refers to the EAP.65 The Commission ought therefore accept the statement made by Mr Collie in his email to Ms Hucker-Stewart on 7 April 2018 that he referred Mr Racek to the program.66
gg) Further, Mr Racek was ‘not sure what [Ms Go] mentioned’ in his conversation with her on 8 April 2018; as such, there is no basis not to accept Ms Go’s evidence that she referred to the EAP in that call. 67 She moreover gave evidence that the program is advertised throughout the terminal, on noticeboards which are used to communicate notices generally.68 To the extent of any inconsistency, Ms Go’s evidence ought be preferred to Mr Racek’s. She answered questions honestly and to the best of her ability, and made appropriate concessions in cross-examination. By comparison, as set out above, Mr Racek was untruthful in relation to the recording of meetings on 12 and 13 April 2018, and made assertions regarding his knowledge of the possibility of termination as an outcome of the disciplinary process which cannot be sustained in light of the evidence.
hh) Second, there is the assertion by Mr Racek that he was allowed to ‘walk around the terminal’. 69 That statement potentially creates the impression that Mr Racek was allowed to roam the operational areas of the terminal without regard for the safety issue that his intoxication caused. In fact, as Mr Racek stated in cross-examination, he only went into a break area, locker rooms, and bathrooms. He did not access any operational areas – indeed, although he wanted to go back to the ship, Mr Collie asked him not to.70

Remedy

ii) Should the Commission find that Mr Racek’s dismissal was unfair, DP World submits that reinstatement is not an appropriate remedy. In this respect, the Commission has specifically directed that DP World address the comments made by Mr Hokke in cross-examination in relation to potential reinstatement.
jj) Mr Hokke’s evidence in cross-examination was follows:
Question: You would still like [Mr Racek] to come back?
Answer: If Daniel would embark on a mental health program and that would be agreed with the company, any outcome would still be agreed on, is the same as we planned for in April, I would say yes. 71
kk) It may be accepted that Mr Hokke’s view was different to that of Mr Thomson and potentially also Ms Hucker-Stewart (though she indicated in cross-examination that following discussions she would support Mr Hokke’s decision 72). Although Mr Hokke’s view is clearly relevant and carries significant weight, DP World submits that weight also should be given to the views of Mr Thomson in particular. Mr Thomson is a director of both DP World and its related operating entity in Melbourne. He is thus personally ultimately accountable for safety outcomes at the terminal, as well as in Melbourne. His responsibilities as the Chief Human Resources Officer within the DP World Australia Ltd group moreover span all of the sites where the AOD Policy applies,73 so he is required to consider a broader range of issues than Mr Hokke.74
ll) In relation to Mr Hokke’s answer specifically, he did not indicate agreement to an immediate or unconditional reinstatement. What he said was to the effect that he would like to have Mr Racek come back if he went through an agreed mental health program of the kind that the parties discussed in April 2018. The evidence is clear that, while the detail of such a process was not finalised, it would have been a lengthy process, involving a comprehensive treatment and medical clearance regime, and not an immediate, unconditional restart. 75
mm) A framework of that kind leading up to reinstatement is not, however, within the range of orders which the Commission may make under the Act. As set out in the Outline, the Full Bench has ruled that the Commission has no power to attach a ‘condition, term or proviso’ to its reinstatement orders. 76 DP World could not, moreover, restrict the performance of work by Mr Racek in any way that traversed the terms of such an order. It was employer conduct of that kind which was found to be a breach of the former federal Commission’s reinstatement order in Blackadder v Ramsey Butchering Services Pty Ltd.77 To the same end, DP World cannot take any step amounting to (broadly-defined) adverse action in relation to a person who has exercised a workplace right by instituting unfair dismissal proceedings and obtained a reinstatement order.78  If a reinstatement order is made, it must be assumed that Mr Racek will return to the workplace on the same basis as during his previous employment.
nn) Mr Hokke’s answers in cross-examination therefore do not dispose of the issue of whether reinstatement is appropriate, because they related to reinstatement or reemployment of a kind which the Commission has no power to order. There is no evidence that Mr Racek has completed a mental health program of the kind on which Mr Hokke’s ultimate answer was predicated. To rely on Mr Hokke’s statement as indicating that a reinstatement order is appropriate would therefore lead the Commission into error.
oo) The relevant question in relation to the appropriateness of reinstatement is therefore whether the Commission can be satisfied that an immediate and unconditional return to work is appropriate. DP World submits that it cannot. Mr Racek has run his case on the basis that his dismissal was harsh, because his culpability for what occurred on 7 April 2018 was significantly reduced by other factors. While he led no medical evidence, Mr Racek’s statement set out his state of mind on the day. Assuming that evidence is accepted (absent which it is difficult to see how Mr Racek could maintain that his dismissal was unfair), there is a need to consider whether there might be a reoccurrence of the mental disturbance which manifested on that day, creating a future risk of potentially tragic results.
pp) The Commission is not assisted by any medical evidence from which it could conclude that Mr Racek is fit to return to work without the risk that this could occur. As such, the Commission ought conclude it is not appropriate to expose Mr Racek or any other DP World employee to such a risk by making a reinstatement order which is not, and cannot be, conditioned on any other safeguards. As set out in the Outline, relevant considerations in this respect include the safety-critical nature of the Terminal environment and the work done by the employees there, DP World’s rightly heavy safety obligations under NSW law, and above all the potential human cost of any incident.
qq) DP World therefore submits that the unconditional reinstatement of Mr Racek is not appropriate. In the circumstances, if a remedy is to be ordered, it ought be an award of compensation:
“If the Commission cannot be satisfied that the relevant employee is fit to perform the inherent duties of his or her former position, or those of an alternative position that is no less favourable, then the proper course will be to find that reinstatement is not the appropriate remedy and to turn to the alternative remedy of compensation.” 79
rr) As to the quantum of any compensation, DP World generally relies on its submissions in the Outline. Regarding the reduction in any award on account of Mr Racek’s misconduct, one additional matter to which the Commission ought have regard is Mr Racek’s misconduct in recording, without the other participants’ knowledge or consent, the meetings with DP World personnel on 12, 13 and 27 April 2018. This was prima facie unlawful under the Surveillance Devices Act 2007 (NSW), 80 though the Commission need not make definitive findings in that respect. Even if lawful, recording the conversations was highly improper. Members of the Commission have repeatedly criticised in very strong terms the making of secret recordings by employees as inappropriate and contrary to the trust on which employment relationships depend.81
ss) Having regard to that matter and Mr Racek’s other conduct, a substantial discount to any compensation award ought be applied under s 392(3).

[22] I will now consider each of the criteria at s.387 of the FW Act separately.

Valid reason - s.387(a)

[23] The Respondent must have a valid reason for the dismissal of the Applicant, although it need not be the reason given to the Applicant at the time of the dismissal. 82 The reasons should be “sound, defensible and well founded”83 and should not be “capricious, fanciful, spiteful or prejudiced.”84

[24] It is to be noted that the Applicant made a partial concession that there was a valid reason for the termination of his employment. However appropriate that was, for the reasons below, the concession did not go far enough.

[25] First, it must be appreciated that the Respondent’s work environment is no ordinary working environment. As the Respondent correctly submitted “a stevedoring terminal is a hazardous working environment with a number of heavy containers been moved by heavy machinery and vehicles. There is a very small margin for error.” In this context I also accept the submission that the Applicant’s role as a Deck Foreman “is a role of significant responsibility. It involves oversight of the work of the stevedores on a ship and giving direction and guidance to crane drivers who are lifting containers onto or off a ship.”

[26] Like any employer, the Respondent has obligations to safeguard all workers at the Terminal. It cannot do so if employees attended for work (or at work become - as the Applicant did) intoxicated.

[27] For this reason the Respondent implemented an AOD Policy. It is clear in its terms that employees must not test positive (i.e. have a blood alcohol reading of more than 0.2%). The consequence of such a breach is that an employee’s may be terminated. No doubt the AOD Policy could provide for a greater level of particularity about likely sanctions depending on whether the BAC reading was in the High, Mid or Low range. However, the fact that it does not, does not in and of itself deprive the AOD Policy of validity.

[28] I accept that the AOD Policy did not mandate termination of employment. I accept that it contemplated situations where employees in breach of the policy might continue in employment (for example with the assistance of the EAP and monitoring). I further accept that it does not necessarily follow that a finding that an employee has failed to comply with policies and procedures equates to a dismissal that is not harsh, unjust or unreasonable. I reject the oft heard excuse from employers to the effect that “I had no choice but to terminate for breach…”

[29] However, in the present matter the Applicant’s BAC reading was nearly 6 times the limit in the AOD Policy. I am therefore satisfied that the conduct occurred (i.e. the breach of the AOD Policy).

[30] The question is then, whether the conduct was sufficiently serious so as to justify dismissal.

[31] One of the contentions of the Applicant was that, because he had not been provided with a copy of the AOD Policy and had not been trained in it he could not be found to have deliberately breached it. I accept that there is no evidence that the Applicant was provided with a copy of or trained in the AOD Policy. I accept that, in drinking at least four cans of Wild Turkey while at work, the Applicant may not have intended to breach the AOD Policy (because he was unaware of it).

[32] However, the unfair dismissal provisions in the FW Act are intended to operate in a common sense way. The procedures and remedies and the manner of deciding and working out remedies are intended to ensure that a 'fair go all round' is accorded to the employee and employer concerned. 85 In the present matter the Respondent operates in a safety critical work environment and the Applicant’s role was crucial to ensuring a safe work environment. In this context, no employee needs to be provided with a copy of the relevant policy or be trained in it before they understand that drinking at least four cans of Wild Turkey while at work is inconsistent with what their employer expects of them. I reject the submission that the Applicant’s lack of awareness of the AOD Policy means that his conduct on 7 April 2018 does not sound a valid reason for the termination of his employment.

[33] The question about whether the Applicant’s conduct was sufficiently serious so as to justify dismissal must also be considered in light of the Applicant’s diminished mental state at the time.

[34] I have deliberately chosen to refer to the Applicant’s “diminished mental state” rather than make a finding of fact that he was suffering from post-traumatic stress disorder or was depressed. I do not do so to diminish the Applicant’s lived experience. The personal events he has given evidence about are distressing. One is compelled to feel a great deal of empathy for Mr Racek. It is little wonder that the life events he has experienced had an adverse effect on him.

[35] However, both post-traumatic stress disorder and depression are clinical terms. There was no evidence before me from a person qualified to make a medical diagnosis. I accept that the Applicant attended his general practitioner three days after the dismissal (i.e. on 16 April 2018) and again on 19 April 2018. I also accept that the applicant attended with a psychologist at least from 1 May 2018. Notwithstanding that clinical care, neither the general practitioner nor the psychologist gave evidence in these proceedings. Consequently, as the evidence stands, all that I am left with is what the Applicant apparently reported to his doctors. To the extent that the Applicant claims to have a post-traumatic stress disorder and depression, I must attach little weight to his self-diagnosis because of his lack of qualifications in the area of mental health. Noting the importance that the Applicant placed on his mental state on 7 April 2018, it is curious that no greater effort was made to lead expert evidence about the same.

[36] The absence of medical evidence was significant also because, where there is a link between a person’s mental condition and their conduct, it may reduce the blameworthiness for their conduct. That is to say moral culpability may be reduced if an employee has a mental condition which, while falling short of an excuse for their conduct, contributes to the conduct of it. If it could have been established that Mr Racek’s mental condition on 7 April 2018 impaired his ability to think clearly about his breach of the AOD Policy, it might have caused what is a valid reason for termination, to be less so. Mitigating principles might have been applied. However, whilst I accept that Mr Racek had a diminished mental state on 7 April 2018, that is not an independent diagnosis of a recognised psychiatric illness. The evidence before me does not establish that Mr Racek was unable to understand the wrongfulness of his actions. Mr Racek’s self-report is not enough to establish the necessary causal connection to his conduct such that his moral culpability is lessened to the extent that there was not a valid reason for termination.

[37] Consequently, I find there was a valid reason for the dismissal.

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

[38] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, 86 in explicit terms87 and in plain and clear terms.88 In the present matter the evidence clearly establishes that the Applicant was notified of the valid reason for his dismissal.

I find the Applicant was notified of the reason for the dismissal.

Opportunity to respond - s.387(c)

[39] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality. 89 In the present matter the Applicant in part challenges a finding that he was provided with an opportunity to respond on the basis that, he contends, he was not told, did not know or did not appreciate that he was facing the possibility of termination of his employment. I reject this contention. The evidence clearly establishes that the Applicant knew that the Respondent was contemplating terminating his employment. The Applicant’s own notes of the meetings he attended on 12 and 13 April 2018 support a finding that he knew his job was on the line.

[40] I find the Applicant was given an opportunity to respond to the reason for the dismissal.

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

[41] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present. In the present matter the Applicant does not contend that he was refused a support person. Mr Racek’s complaints about the conduct of his representative or the advice given to him by the same are not relevant to section 387(d).
[42] I find the Respondent did not unreasonably refuse to allow the Applicant to have a support person present at discussions relating to the dismissal.

Warnings regarding unsatisfactory performance - s.387(e)

[43] Where an employee protected from unfair dismissal is dismissed for the reason of unsatisfactory performance, the employer should warn the employer about the unsatisfactory performance before the dismissal. Unsatisfactory performance is more likely to relate to an employee’s capacity than their conduct. 90 The termination in the present matter was not for a reason of unsatisfactory performance. The Applicant was dismissed for his conduct on 7 April 2018. Consequently, s.387(e) is not relevant.

Impact of the size of the Respondent on procedures followed - s.387(f)

[44] The size of the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)

[45] The absence of dedicated human resource management or expertise in the Respondent’s enterprise may have impacted on the procedures followed by the Respondent in effecting the dismissal.

[46] In the present matter the parties agreed that ss.387(f) and (g) were neutral matters.

Other relevant matters - s.387(h)

[47] Section 387(h) provides the Commission with a broad scope to consider any other matters it considers relevant.

[48] I consider the following matters weigh in favour of a determination that the dismissal was unfair:

a) The Applicant had been employed for 23 years.
b) The Applicant had an unblemished disciplinary and performance record.
c) The Respondent has not treated all employees consistently when there have been breaches of the AOD Policy. The uncontroverted evidence is that, in one instance, the son of a high ranking union official was not terminated when he breached the AOD Policy. It seems that DP World overlays the administration of its policies by applying the old adage “it’s not what you know, but who you know”.
d) The fact that Mr Racek attempted to end his life, was “talked down”, was returned to work and did not have this event reported “up the line” evidences systemic failures in DP World’s WHS practices. Had the right interventions occurred at that stage, it might be that Mr Racek would have been removed from the workplace and ceased to be a risk to himself and employees. He could have been medically assessed at that time. It might have meant that his employment was not terminated.
e) The personal circumstances of the applicant are compelling. I accept that the loss of such significant employment has had a significant impact on him personally and economically.

[49] I consider the following matters weigh against determining that the dismissal was unfair:

a) The Applicant was not truthful in his explanation about the events of 7 April 2018 when the Respondent provided him with an opportunity to do so on 12 and 13 April 2018. While I accept that the Applicant was likely embarrassed about the truth, it deprived the Respondent on important information that might have affected their decision making. His “story” at the time made it more reasonable for the Respondent to decide to terminate the Applicant’s employment. The Applicant had several opportunities to “come clean” and he chose not to. Despite that, as I have already found, he knew his job was on the line.
b) DP World (indeed all employers) has a legitimate interest in sending a signal to employees about the importance of safety. Intoxication at work is an unacceptable safety risk, especially at a stevedoring terminal.

[50] I consider the following matters not relevant to a determination about whether the dismissal was unfair:

a) I have mentioned above the systemic failures in DP World’s WHS systems that allowed Mr Racek to return to work after his threat to commit suicide. Mr Racek contended that these failures constituted a breach of WHS legislation and, as a consequence, rendered the termination harsh.

I do not accept that DP World’s failures mean the termination (for breach of the AOD Policy) was harsh. DP World’s failures do not exculpate Mr Racek’s behaviour.

The breach of WHS obligations is a separate matter, albeit a matter of great concern.

Also of great concern is that in the time that has passed since the events of 7 April 2018, DP World has done nothing to ensure that when employees threatened to commit suicide at work,:

● threats of this nature are immediately reported up the line, and
● employees are not returned to work.

Both Mr Hokke (General Manager Operations – Sydney) and Ms Hucker-Stewart (Human Resources Manager) were intimately involved in the decision to terminate Mr Racek’s employment for his serious safety breach.

However, despite their seniority and obligations to ensure safety in the workplace their evidence was that in the 31 weeks between:

● when they learned of Mr Racek’s threat to commit suicide, the failure to report it up the line and his return to the workplace immediately after the threat, and
● when they appeared before me,

neither of them had taken any action to ensure that there was no repeat of this failure in DP World’s WHS systems and processes. It was a chilling admission of failure on both their parts.

Noting the lack of action taken by the Team Leader on 7 April 2018 and by senior representatives of DP World since then, I will be referring this decision, the evidence and the transcript of these proceedings to the compliance unit of SafeWork NSW.

b) Mr Hokke gave evidence that he would take Mr Racek back if he was medically cleared to do so. I consider this evidence to be relevant to the question of remedy rather than whether the dismissal was harsh, unjust or unreasonable.

c) DP World engaged in adverse action and breached the Disability Discrimination Act 1992 (Cth) (DDA). I have no jurisdiction to make findings about either adverse action or disability discrimination. If Mr Racek wanted to run an adverse action claim he could have (the time commencing the same has now expired). It remains open to Mr Racek to bring a DDA claim.

Putting aside the lack of evidence about Mr Racek’s PTSD and depression, even if it is accepted, in circumstances were DP World was not aware of the Applicant’s diminished mental state at the time, DP World made the decision to terminate his employment. It is difficult to see how it could be said that the substantive and operative reason for the dismissal was the disability. On 13 April 2018 the substantive and operative reason for the dismissal was the breach of the AOD Policy.

d) The likelihood that the Applicant secretly tape-recorded meetings with DP World representatives. This issue may go to the issue of trust and confidence when considering reinstatement as a remedy, but it is not relevant to the questions of whether the dismissal was harsh, unjust or unreasonable.

Conclusion

[51] Having considered each of the matters specified in s.387, and balancing those matters that are in favour of finding that the dismissal was unfair and those matters that are against such a finding it is necessary, in the exercise of my discretion to determine if the dismissal of the Applicant was harsh, unjust or unreasonable.

[52] In the present matter the termination might be considered unjust if, for example, the Applicant did not engage in the conduct alleged against him. However, I have already found that the Applicant was guilty of a serious breach of the AOD Policy. For this reason the termination was not unjust.

[53] Further, if the termination was decided upon inferences not open to the Respondent, it would be unreasonable. In the present matter the evidence about the Applicant’s breach of the AOD was clear and unequivocal. The Applicant had a BAC nearly 6 times the limit provided for in the AOD Policy. For this reason the termination was not unreasonable.

[54] That brings me to consider whether, all things considered, the termination was harsh. Even accepting the “medical” evidence before me at its highest and the very significant personal and economic consequences for Mr Racek, the breach of the AOD Policy was so significant that I am not satisfied that the decision to dismiss the Applicant was disproportionate to the gravity of Mr Racek’s breach. Consequently, I am also not satisfied that the dismissal was harsh.

[55] The Commission, as presently constituted, is not satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find the Applicant’s dismissal was not unfair.

[56] Consequently the UFD Application is dismissed. An order will be issued with this decision.

COMMISSIONER

Appearances:

Ms A Wood, solicitor for the Applicant

Mr S Crilly, solicitor for the Respondent

Hearing Details:

7 & 27 November 2018

Final Submissions:

7 December 2018

Printed by authority of the Commonwealth Government Printer

<PR704691>

 1   [2018] FWC 5001.

 2   Transcript PN628.

 3   Sayer v Melsteel [2011] FWAFB 7498.

 4   PN444.

 5   PN443.

 6   PN488.

 7   PN560.

8 PN440.

 9   PN443.

 10   PN490.

 11   PN464.

 12   PN784.

 13   PN791.

 14   PN821, PN822.

 15   PN905.

 16   PN634, PN635.

 17   PN621, PN623.

 18   PN714.

 19   PN734.

 20   PN563, PN566, PN568, PN571, PN572.

 21   PN707.

 22   PN739, PN742, PN743, PN745.

 23   PN751, PN753.

 24   PN758.

 25   PN732, PN733.

 26   PN747, PN749.

 27   PN753.

 28   PN665, PN666, PN667, PN669.

 29   PN764, PN767.

 30   PN676.

 31   Exhibit 8 (Hokke Statement) at [13]-[16].

 32   Transcript at PN276-279, 282-283.

 33   Transcript at PN362-363.

 34   Exhibit 1 (Agreed Facts) at [8]-[9].

 35   Transcript at PN284.

 36   Exhibit 4 (Racek Reply Statement) at [2]; Transcript at PN287.

 37   Transcript at PN290.

 38   Exhibit 9 (Hucker Stewart Statement) at KHS-

 39   Transcript at PN259.

 40   Fair Work Regulations 2009 (Cth) reg 1.07(3)(b) and (5).

 41   Work Health and Safety Act 2011 (NSW) s 28(a)-(b).

 42   All section references are to the Fair Work Act 2009 (Cth) unless otherwise noted.

 43   As the Commission ruled – see Transcript PN123.

 44   See e.g. Construction, Forestry, Mining and Energy Union v Endeavour Coal Pty Ltd (2015) 231 FCR 150; [2015] FCAFC 76 at [32] (Jessup J).

 45   Transcript at PN298-300.

 46   Transcript at PN302-304.

 47   Transcript at PN306-307.

 48   Exhibit 3 (Racek Statement in Chief), Annexure F, last page prior to Annexure G.

 49   Exhibit 9 (Hucker-Stewart Statement) at KHS-5, p, 25.

 50   Exhibit 10; Transcript at PN518-535.

 51   Transcript at PN325-328.

 52   Exhibit 3 (Racek Statement in Chief), on the first page after the cover sheet to Annexure G.

 53   See also Exhibit 9 (Hucker-Stewart Statement) at [14](b) and [18](b); Exhibit 8 (Hokke Statement) at [23], [29] and [41]; Exhibit 7 (Thomson Statement) at [14]. Mr Racek’s best recollection was that the meeting on 12 April 2018 lasted 25 minutes or longer: Transcript PN154.

 54   Transcript at PN233-237

 55   Transcript at PN162-215.

 56   Exhibit 3 (Racek Statement in Chief), Annexure G, 7th page after the annexure cover sheet; Transcript at PN209-215.

 57   Transcript at PN155.

 58   Exhibit 3 (Racek Statement in Chief), Annexure F, at the bottom of the first page after the cover sheet.

 59   [2015] FWC 6215 at [58].

 60   Fire Brigade Employees’ Union of New South Wales (on behalf of Brendan O’Donnell) v Fire and Rescue NSW (2013) 235 IR 234; [2013] NSWIRComm 57 at [50] (Boland P, Staff and Blackman JJ).

 61   Cf. Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 430 (Brennan CJ, Dawson and Toohey JJ).

 62   Racek Submissions at [34], [37].

 63   Transcript at PN261-265.

 64   Transcript at PN259.

 65   Exhibit 9 (Hucker-Stewart Statement) at KHS-8 (pp. 66 and 74).

 66   Exhibit 6 (Go Statement) at SG-1 (p. 4).

 67   Exhibit 6 (Go Statement) at [12].

 68   Transcript at PN579-580, PN682-684.

 69   Exhibit 3 (Racek Statement in Chief) at [20].

 70   Transcript at PN268-274.

 71   Transcript at PN822.

 72   Transcript at PN905.

 73   The policy applies to all DP World Australia employees, as well as contractors, visitors and other persons on site – see Exhibit 9 (Hucker-Stewart Statement) at KHS-1 (p. 9).

 74   To that end see Exhibit 7 (Thomson Statement) at [18].

 75   Exhibit 3 (Racek Statement in Chief), Annexure H. Counting from and excluding the cover sheet of that Annexure, see for example pages 6 (‘whatever happens in the next 6-9 months or so or whenever you are coming back to work’), 8 (‘we need to formalise this as we need to have really a path to where we are going…), 9 (references to ‘milestones and an ‘IME expert’ in the first paragraph), 10 (probably talk to you psychologist and get extensive reports’), 11 (‘I have to make sure that your colleagues are comfortable with you coming back and for them to be 100% confident…’),13(‘We are not reversing the termination at this point. There is a long road to take first’), and other similar commences at 14ff.

 76   Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB 1523 at [42].

 77   (2005) 221 CLR 539; [2005] HCA 22.

 78   Fair Work Act 2009 (Cth) s 340.

 79   Cartisano v Sportsmed SA Hospitals Pty Ltd [2015] FWCFB at [46].

 80   See s 7(1).

 81   Lever v Australian Nuclear Science and Technology Organisation (2009) 189 IR 362; [2009] AIRC 784 at [103] (Drake SDP); Schwenke v Silcar Pty Ltd [2013] FWC 4513 at [65] (Cloghan C); McAuley v Northern Territory [2018] FWC 330 at [96] (Wilson C), upheld on appeal in McAuley v Northern Territory [2018] FWCFB 2639; Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 at [185] (Sams DP).

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

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

 84   Id.

 85   Fair Work Act s.381(2).

 86   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].

 87   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

 88   Previsic v Australian Quarantine Inspection Services Print Q3730.

 89   RMIT v Asher (2010) 194 IR 1, 14-15.

 90   Annetta v Ansett Australia Ltd (2000) 98 IR 233, 237.