Q. So is it your evidence that you're saying that because you'd had a big night drinking before you were intoxicated to the point where if you had one Cougar and two beers you were going to be over the limit?
A. Yes.
Q. And you knew that?
A. I didn't know that. I - when I got pulled over I still didn't think I was over the limit.
Q. Now you just answered in response to Mr Klower's questions that there was a question asked to the effect of, "Well how many beers do you think you've got in you," and that's where the six comes from.
A. That's what she come up with.
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Q. So why did you say 12 noon then?
A. She said 12 noon.
Q. No, no, you were asked when was your first drink?
A. No, she said - I'm trying to - I wish you'd listen to what I'm telling you, I'm repeating myself. She said "About six drinks," and I said "Yes." And she said, "From about 12 o'clock," and I said "Yes."
Q. So why did you say yes?
A. Just to get it over with. I wanted to get home. At the time, like I said, I didn't think I was over the limit. I didn't think there was much in it.
Q. Well you know that's not the case now because you were .1?
A. That's now, but when she was writing this out I still hadn't received my test back. They still didn't have my reading.
Q. And then - and you say you don't know where she got this idea about a Coke bottle.
A. No. I may have said that I've drunk Bourbon but I never said nothing about mixing in no Coke bottle.
Q. She said more than that. She says she remembered you telling her that you were filling it - she actually remembered the size of the bottle, she remembered that you told her that you filled - you'd taken some of the coke out and put Bourbon in.
A. No, that's mistaken.
Q. So she's just made that up?
A. Yes, or she's mistaken.
Q. Well how can she be mistaken, she could only get that information -
A. Well this is 10 months ago, she couldn't remember half of the things unless she was reading it from here.
59 Mr O'Hara went on to say that nothing was mentioned by her in her evidence of the fact that he said he had alcohol in his system and nothing about having two drinks back at the yard. He insisted he had told her that and that what had happened was she just put it in her own words.
60 Mr O'Hara denied that he had never disclosed to anyone that he had been drinking the night before. He had never denied it - no one had asked him.
It wasn't in his witness statement because he had put in what happened on the day, which was what he was asked to fill out. He maintained he told Mr Mackinlay at the meeting and also Mr Tyrrell that he had been "on the grog" the night before .
61 He insisted he did not say he was drinking at Bowditch Place only that he was working at Bowditch Place, but that Senior Constable Wilson may have got it mixed up from asking him where he was working.
62 He agreed he had pleaded guilty and had not raised any of this. He was over the limit and he couldn't say he wasn't and was just going to get his sentence.
63 At the time it all happened he didn't think he was over the limit but conceded he could have been over as a result of the drinking on the Friday night or even with the drinking of the night before together with the additional can of Cougar.
64 He also agreed that he was shown the Police Facts Sheet but said he didn't really read it. He made no protest about it nor sought to make any amendment saying - "No. I'd been working for 11 hours, I just wanted to go home."
65 Mr Humphreys' evidence dealt with the mechanics of the on call system. He also indicated he had a good relationship with Mr O'Hara and never had any problems with him.
66 He detailed the events of the day and his involvement in his work. His evidence confirmed that the work went all day. He was called at 9.00 am, although he wasn't on call, and went to the site in his truck where there were already employees working including Mr O'Hara and Mr Vaughn-Appel.
67 He also had occasion to leave the site from time to time in his Council truck to go and get needed equipment from the Council depot. He deposed that: "It was a long day and we worked up until around 8 pm". He also returned to the Council depot at the end of the day to return equipment.
68 Mr Humphreys also confirmed that up until Mr O'Hara's dismissal every now and then they would have a couple of beers after work at the depot. Management never bought them beer to drink at the depot. If he had to drive home they would be sensible and only have 2 beers.
69 He indicated that after the dismissal of a Mr Edwards at the beginning of 2004, Council redistributed Council's Code, drawing their attention to the policy on alcohol consumption in the workplace or attending for work whilst under the influence of alcohol. After Mr Edwards was dismissed it sent a really strong message at the time and he knew that if he was caught drink driving whilst on duty and in a Council vehicle he would expect to be dismissed.
70 On the Saturday night Mr Trevor Weeks was contacted to come and pick up the truck Mr O'Hara had been driving. He later drove Mr O'Hara and Mr Vaughn- Appel to Mr O'Hara's home from the Police Station.
71 Mr O'Hara acknowledged that when he appeared in Griffith Local Court on 27 May 2005 he pleaded guilty. He did that because he was over the limit. He also acknowledged that the Magistrate told him "you are lucky that your last DUI was more than five years ago. If it had not been I would have seriously considered imposing a custodial sentence upon you."
72 In relation to the meeting on 24 May, Mr O'Hara considered the purpose of the meeting was to sack him as Mr Mackinlay told him he was finished and he would have to let him go.
73 He didn't expect this as he thought it would just be a disciplinary meeting and he would be reprimanded. He had gone DUI twice before at Council and nothing had happened to him.
74 Whilst he acknowledged that Mr Jim Taylor the Union Delegate was at the meeting he did not have the opportunity of speaking to him beforehand as Brian Keyes had rung him up and arranged for him to be there. He didn't know if Mr Tyrrell had told him about what happened.
75 Mr O'Hara said he apologised for what he'd done and said he meant no disrespect to Council. He said he explained that he honestly didn't think he was over the limit.
76 Generally, Mr O'Hara could not remember exactly what was said at the meeting and also said he had not read the witness statements of Mr Mackinlay or Mr Tyrrell. He thought he had been shown them but didn't take much notice of them.
77 He was however taking the matter seriously and wanted his job back.
78 He could not think of anything else he could have told them, apart from what he explained had happened.
79 He could not recall being told anything about the matter being serious, and why it was so or other matters put to him. The only thing he could remember Mr Mackinlay saying was "I'll have to let you go." Mr O'Hara indicated he said in reply "oh you mean the sack."
80 Mr O'Hara said Mr Mackinlay said "Yes" in response. Mr O'Hara said he had nothing more to say and Jim Taylor said "that's a bit harsh, we'll be taking action." Whilst he could not remember precisely the exact words Mr Taylor used that was the effect of what he said.
81 Mr O'Hara was adamant that this was what was said and he could remember that clearly, as after 17 years on the job of course he was going to remember how he sacked him.
82 Mr O'Hara was taken to his part 7A Reasons for Application. The Union had completed it, he didn't read it beforehand and wasn't sure if he'd read it. The reasons listed in the application as to why the dismissal was unfair he had not revealed during the 24 May meeting.
83 Mr O'Hara said he didn't say too much at all as he didn't think he was going to be sacked. He didn't get a chance to say much as he was sacked on the spot. He didn't think he was going to be sacked, only reprimanded as the last two times he went DUI, it went to Council and he had to write a letter to Council and Council made a decision. He maintained that this time Mr Mackinlay just cut Council out, did it on the spot and didn't ask for time for Council to consider it.
84 Mr O'Hara acknowledged that he had received a formal warning about the previous DUI and disqualification and was on notice about disciplinary action being taken about any future disqualification. However he said the warning only said "may result" and that was 6 years ago.
85 He maintained he didn't realise he was over the limit. He thought he was safe to drive and nobody was put at risk. He said that even "the coppers" at the Police Station were surprised at the result. He didn't consider it as a serious offence. "Murder and rape" were serious not DUI.
86 Mr O'Hara agreed that he subsequently received a termination letter from Council (but did not realise that he was paid a 5 week notice payment). He also agreed that he didn't say anything more or write a letter to Council. He said he couldn't see the point of doing that as the Union were taking the matter up and he had put in the hands of the Union.
87 Mr O'Hara was taken to his employment record as he had said in his application that he had an "unblemished" record of 18 years service.
88 Various individual incidents, as appearing on his record, were canvassed with Mr O'Hara - not wearing a safety vest; maintenance of the truck in good condition and sick leave absences. Mr O'Hara explained the particular circumstances of each individual incident and indicated he thought they were "minor" and that what was ignored was all the good things he had done at Council.
89 Mr O'Hara also explained the practice of his co-workers having a couple of cans of beer at the depot at the end of the day from beer bought by the men and kept in a separate beer fridge. This was locked on the weekend. Management were aware of this practice and had come down and had a drink with them on occasions. He regarded this as a "culture" of it being alright to have a couple of beers and then drive. Those were his words not and not the words of anyone else.
90 This practice was confirmed by Mr Tyrrell who said to his knowledge it had gone on for the 22 years he had been at Council. He had had a drink with the men on occasion and they talked over the events of the day. However he could not recall anyone going over the limit and they knew if they were on duty they had to stay within the legal limit as they could have to attend to emergencies. He acknowledged there were other employees who had access to a Council vehicle and who would drive home from the yard in that vehicle.
91 Mr Tyrrell was not aware of any policy which said workers could not drink whilst on-call.
92 Mr Tyrrell indicated that Mr O'Hara was a good worker and one of their more experienced plumbers with a knowledge of their system. He had told Mr Mackinlay that on the morning of the 24 May before the meeting. This was in response to his query about what Mr O'Hara was like as a worker.
93 Mr Tyrrell deposed that they had had an up and down relationship in the past and there had been a problem at one stage with him leaving work without telling anyone he was going. This stopped after some disciplinary action and they now had a good relationship.
94 Mr Tyrrell confirmed that Mr O'Hara had told him what had happened on the Saturday, the drinking the can of cougar and later the two cans at the yard from the beer they'd bought on the way there. He'd told him that he hadn't had any food all day and didn't think he was over the limit. Mr Tyrrell didn't think that what he did was premeditated at all.
95 He had told him to put it all in a letter and explain the extenuating circumstances etc, including how long the job went.
96 He also noted that after Mr O'Hara explained what had happened he told him that the day he was due to go to court was the day that Mr Vaughn-Appel was due to get his licence back and that he would be able to drive for him. Based on this he believed Mr O'Hara wasn't concerned about loosing his job and that "Council would look after him."
97 Mr Tyrrell deposed that he thought it was "fair enough" that employees were given the benefit of one DUI charge but employees who were repeat DUI offenders should not be entitled to expect that they could drink and drive as often as they liked without any consequences.
98 In relation to the previous DUI disqualification of Mr O'Hara it had not taken place whilst on duty and driving a Council vehicle. On that occasion they had been able to accommodate Mr O'Hara as a Trades Assistant during the period of disqualification. The first time was when he was an Apprentice and as such had to be accompanied by a Tradesman at all times so it was not a practical problem.
99 Mr Tyrrell detailed the practical difficulties faced by Council if Mr O'Hara was re-instated whilst he did not have a licence.
100 Mr Tyrrell indicated that during the meeting neither Mr O'Hara or Mr Taylor said much at all. He deposed as to the exchange between Mr O'Hara and Mr Mackinlay as follows:
Mr O'Hara I didn't think I'd be over".
Mr Mackinlay: This is an extremely serious offence. You drove
a Council truck, while under the influence of alcohol and while you were on duty. This is the
third time you have been charged with DUI. You haven't told me anything that would justify us keeping you on, you don't seem to have defence".
Mr O'Hara: "What, you mean I'm finished, sacked?"
Mr Mackinlay: "It looks like it, you'll probably have to finish up on Friday".
Mr Taylor: "That's a bit rough. Can we talk about this?"
Mr Mackinlay: "Listen, he hasn't offered any reason why he shouldn't be dismissed. This is extremely serious. We'll probably look at giving you five weeks severance pay in the circumstances, I don't have any other option in these circumstances. You haven't provided any reason why we should keep you on".
Me:(Mr. Tyrrell) When you're on-call you're expected to stay under the limit - as you know you can be called out at any time."
101 Mr Tyrrell said Mr O'Hara seemed shocked at what Mr Mackinlay said to him.
102 Mr Tyrrell also indicated that Mr Mackinlay had spoken to him prior to the meeting and indicated that he had read Mr O'Hara's letter. He had also briefed Peter Brooks and Mr Tyrrell believed Mr Brooks had made a decision based on the letter. Mr Tyrrell had commented to Mr Mackinlay that unless there were extenuating circumstances he thought he had virtually told him his decision.
103 Since the time of making his witness statement Mr Tyrrell indicated that Council had employed a Plumber on a two year contract to fill Mr O'Hara's position. However that person had since left Council.
104 Mr Tyrrell indicated that he wasn't aware that Mr O'Hara and Mr Vaughn-Appel had been drinking on the Friday night before the Saturday in question and whilst Mr O'Hara was on call. It had not been raised previously and he would have a concern that the two men had had a dozen drinks that night whilst he was on-call. It disappointed him that that had happened.
105 Attached to Mr Tyrrell's witness statement was the Position Description for a Plumber and the On-Call Agreement applying at Council.
106 Mr Mackinlay's evidence detailed Council's policies and procedures and various relevant documents were attached.
107 In relation to the meeting of 24 May, Mr Mackinlay essentially agreed with Mr Tyrrell's version of events indicating that throughout the meeting Mr O'Hara remained silent and seemed reluctant to speak. At no stage did he offer any reason or explain why his employment should not be terminated.
108 At the conclusion of the meeting Mr Mackinlay told Mr O'Hara: "In my view this incident is extremely serious and it is my expectation that we will have to let you go". Mr O'Hara then asked "what you mean the sack". Mr Mackinlay said "yes". Mr Taylor said "that's a bit harsh can we talk about it". Mr Mackinlay told him they'd pretty much covered all the grounds and what else was there to talk about ?
109 Mr Mackinlay discussed the matter with Mr Brooks after the meeting and indicated that in spite of Mr O'Hara's 17 years service in the circumstances he couldn't see there was any option but to dismiss. Not to dismiss would send the wrong message to other employees and Council couldn't be seen to tolerate that sort of behaviour. The decision ultimately rested with Mr Brooks who agreed there was no other option.
110 Mr Mackinlay did not contact the Union Organiser Mr Fayle as this was not requested or mentioned by Mr O'Hara.
111 Similarly Mr Vaughn-Appel was not spoken to as he was also not mentioned by Mr O'Hara and Mr Mackinlay regarded him as a "bit player".
112 Mr Mackinlay was not aware that Mr O'Hara had a member of the public in the vehicle as a passenger when he was stopped by the Police. He only found out this information when he was contacted by phone by Senior Constable Mooney on the 25th May the day after the interview with Mr O'Hara.
113 Mr Mackinlay gave evidence about his knowledge of Council's policies in relation to driving Council vehicles, being on call and Council's alcohol policy. His definition of "under the influence of alcohol" as referred to in Council's policy was "exceeding the legal limit."
114 He rejected the contention that at the time of the meeting as Mr O'Hara had not yet been convicted in the Local Court a decision to terminate was essentially precipitous. He indicated that at that time all of the parties present, including Mr O'Hara, were convinced that he was going to receive a very harsh penalty possibly including gaol, as this was his third offence
115 Mr Mackinlay conceded there were examples of other council employees losing their licences for driving offences and remaining in Council's employment.
116 In coming to a decision to terminate Mr O'Hara they did take his 17 years service into account. They didn't want to terminate him and were mindful of the consequences for Council both of losing an experienced Plumber and the personal consequences to Mr O'Hara. There was no other option given the seriousness of the conduct and that Mr O'Hara admitted the truth of what had happened and that was subsequently borne out by the Court.
117 They were genuinely hoping that some information would emerge from what he had to say about events that would help them to move forward, but that didn't happen. Council had to act responsibly in the circumstances.
118 Mr Brook's evidence mainly dealt with the information he received from Mr Mackinlay after the interview with Mr O'Hara and the decision he then made as a consequence.
119 Prior to the interview he had not formed a view about what disciplinary action, if any, he should take against Mr O'Hara. However, after hearing Mr Mackinlay's response he determined that given the seriousness of what had occurred, he saw no other alternative but termination and subsequently advised Mr Mackinlay by email to proceed with the termination.
120 It was part of Mr Brook's evidence that Mr Mackinlay had told him that Mr O'Hara had had passengers in the truck, a Council employee and a member of the public.
121 In determining to terminate Mr O'Hara, Mr Brooks took into account the following factors:-
s It was the third DUI charge and Mr O'Hara should not be given a fourth chance.
s He was on duty at the time of the incident.
s He was driving a Council truck placing Council property at risk.
s He was driving under the influence in a residential area - raising dire consequences for the Council.
s He had passengers in the truck (a fact only found out after termination.)
s He put his own and other lives at risk.
s If he had been called out again that night he would not have been able to attend or would have been unable to perform his duties.
122 Mr Brooks also indicated that he was not aware at the time of the interview of termination that Mr O'Hara had been drinking on the Friday night whilst on-call. That would have only increased the seriousness of how the incident would have been viewed.
123 Mr Brooks also gave evidence about Council's alcohol policy. Council Management had not been aware of the practice of workers having a beer at the depot at the end of the day. As soon as it was brought to his attention after Mr O'Hara's dismissal he send a memorandum (June 24th) to all staff reminding them that no alcohol was to be stored or consumed on the premises.
124 He rejected the claim by the Union that it was common practice for Council staff to drive Council vehicles while under the influence of alcohol. However he conceded that what the Union had in fact claimed was in relation to driving Council vehicles after consuming alcohol.
125 Mr Brooks had subsequently sighted the Police Facts Sheet and was extremely concerned that it detailed Mr O'Hara admitting to consuming 6 drinks between 12 pm and 8 pm which was at odds with his statement that he had consumed "very little alcohol on that day".
126 Ms Anker's evidence concerned Council's policies at the workplace and also Council's involvement in various projects in the local Griffith community in relation to driving and alcohol and drug abuse.
127 Mr Snaidero, a former employee of Council, gave general evidence about his knowledge and understanding of what had happened with various employees who had lost their licence and continued in employment with Council.
128 Mr O'Hara also gave evidence of casual work obtained through a labour hire firm since he had been terminated.
SUBMISSIONS
129 Mr Klower for the applicant sought to address the following issues -
s Were Mr O'Hara's intentions lawful?
s Did Council have a policy of nil tolerance concerning alcohol?
s Did Council apply discipline equally?
s Did Mr O'Hara consume alcohol at work?
s Was Mr O'Hara honest with his employer?
s Mr O'Hara's comments to the police during the interview at Griffith Police Station.
130 It was submitted that Mr O'Hara did not unlawfully consume alcohol at work. The evidence showed he drank water. He thought the job was finished then he had the can of Cougar at 5 pm. He had no further alcohol until the two drinks at the works depot.
131 The evidence clearly pointed to a situation where Council did not have a nil tolerance policy either in the workplace or on-call. There was the long standing common practice of a couple of drinks after work. This was participated in by supervisors. It was not until this incident that directions were given to cease the practice.
132 Other employees had lost their licences (some for some years) yet were still working at Council. Mr O'Hara's last conviction was seven years ago. Council was seeking to make Mr O'Hara an example in cleaning up the workplace of a 24 year practice.
133 Council should have made Mr O'Hara and all staff aware that no tolerance would be shown to these types of offences including whilst on-call and standby. This had not happened.
134 Mr O'Hara's credentials as an honest and hardworking employee were not questioned and his supervisors were supportive of his good character and workability as were his work colleagues.
135 In relation to the police evidence Mr O'Hara had told them things that were completely out of character. There was no logic in the fact that he would tell them he had finished work at 12 midday. There was no suggestion from any of the witnesses that the work did not finish firstly at 5 pm and then at 8 pm.
136 There was also no suggestion that the Police were lying or that Mr O'Hara didn't tell them those things (including about the coke bottle). It could be put down to his Aboriginal heritage, having a laid back approach to those type of things and, as he said, he just agreed with anything she said, because he just wanted to get out of there.
137 What he told the Police should be looked at in isolation. As knocking off at 12 midday had no logic to it, any mention of mixing coke and bourbon in a bottle may have been the night before as it is mentioned nowhere else.
138 Mr O'Hara immediately told his supervisor and Council officers what had happened and subsequently apologised for his actions.
139 Mr Klower relied on a decision of Sams DP in Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 concerning an employee terminated after being caught DUI in a work vehicle and whilst driving out on a call-out.
140 Mr Klower submitted there were strong parallels between that case and Mr O'Hara's, in relation to the employers' policy, the employee's awareness of it, statements of other employees, his lengthy service and prior good work record. That employee had also made frank and open submissions and the Deputy President believed him to be very sorry for what he had done.
141 Taking these various factors into account, it was held that in the circumstances termination was too harsh and he went on to order, re-instatement with continuity of service and backpay except for a 5 month period.
142 Mr Klower sought reinstatement but did not seek recompense for the period since Mr O'Hara's dismissal on the basis that he had been earning income through casual work.
143 Mr Klower further suggested that Council needed to tidy up its alcohol policy to the point where it provided for zero tolerance and that it be made clear to all employees including Mr O'Hara that they would have to abide by that decision.
144 Mr Gardner for the Council elaborated in depth on the detailed written submissions tendered which traversed the relevant background and evidence, issues of onus, procedural fairness, relevant case law and the findings open to the Commission.
145 Also tendered was a succinct and helpful summary of those detailed written submissions reproduced as follows:
146 The termination of the employment of Shane Gregory O'Hara(Applicant) was not harsh, unjust or unreasonable. There was a valid reason for the termination of the Applicant's employment.
147 The Applicant participated in a fair investigation and disciplinary process.
· On 25 May 2005 a meeting was held with the Applicant, John Taylor of the USU, John Tyrrell and Ian Mackinlay (Meeting).
· The Meeting was held to discuss the circumstances surrounding the Incident with the Applicant.
· The Applicant attended the Meeting accompanied by a union representative and was given a full opportunity to provide reasons as to why his employment should not be terminated.
· Under cross-examination, the Applicant admitted that none of the issues raised in the Application in support of his contention that his dismissal was unfair were raised either by him or by Mr Taylor at the Meeting.
· The Applicant was advised in writing of the outcome of the meeting and the Respondent's decision to terminate his employment.
148 In making the decision to terminate the Applicant's employment, the Respondent took into account the following factors.
· The Applicant was on duty at the time of the Incident.
· The Applicant was driving the Respondent's truck at the time of the Incident.
· The Applicant was a repeat offender, in that at the time of his dismissal, the Respondent believed that it was his third conviction for DUI. It has since been revealed that it was in fact his fourth.
· The Incident was a serious breach of the Respondent's Code of Conduct.
· The Incident was a serious risk to health and safety.
· The real risk that the Applicant may re-offend. This concern has been reinforced by the during the trial by the Applicant's refusal to recognise that driving a four tonne truck while under the influence of alcohol is dangerous. The Applicant believes that he can safely perform work and drive a vehicle when drunk. This is an unacceptable work safety risk.
· The Applicant's blemished record of service.
· The Applicant was carrying a passenger in the truck at the time of the Incident. It has subsequently been discovered that the Applicant was in fact carrying two passengers at the time of the Incident.
149 At the Meeting and in the evidence given, the Applicant stated that he had only had three drinks on the day of the Incident.
· Police documents produced under Summons, as well as the evidence of Senior Constable Jamie Mooney (SC Mooney) and Senior Constable Nicole Wilson (SC Wilson), contradict the Applicant's version of events and reveal that the Applicant told both Senior Constables the time of his arrest that he consumed an amount equivalent to six cans of bourbon and cola throughout the day.
· It was only revealed in the testimony of SC Wilson that the Applicant had in fact been drinking bourbon out of a 1.25 litre bottle of 'Coke' brand cola at the Site on the day of the Incident.
· The Respondent submits that the Commission should give significant weight to the Applicant's dishonesty when assessing whether his dismissal was harsh, unreasonable or unjust and (if applicable), when determining remedy. The Applicant was dishonest to the Respondent and was dishonest during the trial.
150 The Applicant has given evidence that the police documents and testimony evidence is incorrect. In determining whether this is the case, the Respondent submits that the Commission should give due weight to the following factors.
· The Applicant pleaded guilty to the criminal charge in June 2005, and did not contest the police evidence until the first day of the hearing.
· The inherent unlikelihood that SC Mooney and SC Wilson are lying.
s The fact that the Applicant is motivated by self-interest in claiming that he only had three drinks and did not drink at the Site.
· The testimony evidence of SC Mooney, who unequivocally stated that he thought it was extremely unlikely that an adult male who consumed three drinks over the course of three hours would return a blood alcohol reading of 0.10, even if that person had not eaten throughout the course of the day and had consumed a large number of alcoholic drinks the night before.
· The Applicant was drunk when pulled over by SC Mooney and SC Wilson. Both police constable witnesses had the benefit of fact sheets taken at the time of the Incident. Both police witnesses hold position of trust within the community. The evidence of the police offers must be preferred over that of the Applicant.
151 Given that the Applicant advised Council that he would be pleading guilty to the charge, it was reasonable for Council to assume that the drink driving charge would result in the disqualification of the Applicant's drivers licence. In any event, the Police had suspended the Applicant's drivers licence on the night of the Incident.
152 The Applicant failed to establish that any alleged "culture of drinking" existed at the Respondent's organisation. In any event, it had been established that on the day of the Incident, the Applicant drank alcohol purchased by himself at home, at the Site and at the Respondent's premises, which rather than proving a culture of drinking, suggests the Applicant has unmanageable personal problems with alcoholism which manifests in a dangerous misunderstanding of work safety.
153 The Applicant has on all account failed to demonstrate that his dismissal was harsh, unjust or unreasonable.
154 During the course of his submissions Mr Gardner relied on the following cases in relation to similar issues concerning misconducts of an employee and the appropriatness or otherwise of termination as a consequence and draw either parallels or contracts with the circumstances surrounding Mr O'Hara's termination.
155 The following cases were relied on concerning parallel or contrasting situations:-
Mastroianni v Telstra Corporation (2000) IRComm A 240 (9 March 2000); John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, NSW Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) and TWU o/b Ferguson v Linfox (2004) NSWIRComm 1116.
156 Mr Gardner distinguished the facts in Lorenzato as relied on by the Union submitting that Mr O'Hara did not have as lengthy a period of service, and did not have an unblemished record which were the major mitigating factors in Lorenzato
157 The onus was on the respondent to establish misconduct per Pastrycooks, Biscuit Makers and Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 1990 35 IR 70.
158 In relation to the submissions on procedural fairness Byrne and Australian Airlines Ltd (1995) 185 CLR410 was cited.
159 Reliance was also phased on Byrne v Australian Airlines, Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, and Lane v Arrowcrest Group (1990) ALR 45 in relation to additional information, as to facts in existence at the time of dismissal, that only come to light after termination that may further justify termination.
160 On the issue of the impracticability of reinstatement or re-employment, the following cases were relevantly cited- Little v Commissioner of Police (No 2) (2002) NSWIRComm 52; St Vincent's Hospital Sydney Ltd v Harris (1998) 81 IR 173; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; State of NSW v Seedsman (2000) 217 ALR 583; Rapp v Wauchope RSL Club Ltd 81 IR 116; Retail Traders Assn' (NSW) v Shop Distributive & Allied Employees Assn (NSW) (1990) 36 IR 38 and NSW Sales Representatives & Commercial Travellers' Guild v Berge Paints (1984) 9 IR 273
161 In reply Mr Klower pointed out that the issue of the practicability of re-instatement raised by Mr Gardner, could be overcome as Mr O'Hara was due to get his licence back in June 2006. Any decision in favour of reinstatement would be conditional on him having a current driver's licence.
162 There was also a shortage of plumbers in the area and Mr O'Hara's knowledge was substantial. The cost of Council educating a new journeyman plumber would also be substantial.
163 There was no evidence to establish that Mr O'Hara was intoxicated or over the limit until he was pulled over. The eating habits of Mr O'Hara were relevant as was his Aboriginal background and his habit of going days without food. The previous DUI offences occurred when he was younger and a substantial amount of time had elapsed since then. There was also no evidence that Mr O'Hara had been dishonest in any way.
164 Additionally the lengthy period of time that Mr O'Hara had been on-call should also be noted. It was a one off incident. There was no suggestion of reckless or dangerous driving, it was a random breath test. There had been no issue raised of any health and safety breach on that day.
165 There was no way Mr O'Hara could have known he was over the limit and no evidence that he was, when he was driving backwards and forwards during the day.
166 On the issue of Mr O'Hara not giving a good defence of himself it was pointed out that whilst he may have been a good to excellent journeyman plumber, Mr O'Hara's ability to do these things was difficult. Even in Mr Klower's dealings with him it was mainly done through his sister and the Aboriginal Centre in Griffith.
167 Mr O'Hara may well need to seek assistance and counselling in the future. However Council also needed to revise its policy in relation to standby and call-out.
168 Mr Klower generally re-iterated matters dealt with earlier and submitted that the period since termination was sufficient disciplinary action. There had been unavoidable delays in hearing the matter.
169 Reinstatement was sought with any conditions imposed that the Commission saw fit.
CONSIDERATION
170 I have carefully considered the evidence and the submissions of the parties in this matter. That has involved of necessity a very detailed consideration of the transcript.