Antonakopoulos v State Bank of New South Wales

Antonakopoulos v State Bank of New South Wales - [2008] NSWIRComm 1096 - NSWIRComm 2008 case summary — Zoe

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Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Workers' Union New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 Australian Workers' Union New South Wales (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bechtel Australia Pty Ltd v Unions New South Wales and Others [2007] NSWIRComm 1012 BHP Iron Ore Pty Limited v Construction Mining Energy Timberyards Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 Day v Lumley Life Limited (1999) 90 IR 70 Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Fox v Percy (2003) 214 CLR 118 Franklins Ltd v Webb(1997) 72 IR 257 Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 Mr Peter Kidd v Linfox Australia Pty Ltd [2008] AIRC 398 Larkin v Boral Construction Materials Group Ltd (2003) 83 WAIG 929 Little v Commissioner of Police (No 2) (2002) 112 IR 212 McLean v Tedman (1984) 155 CLR 306 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 CASES CITED: Narayan v Inspector Chamings (2007) 169 IR 414 Neat Holdings Pty Ltd v Karajan Holings Pty Ltd (1992) 110 ALR 449 New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 New South Wales Public Service Professional Officers Association v Forestry Commission (NSW) (1990) 39 IR 46 North v Television Corporation Limited (1976) 11 ALR 599 O'Connor v Commissioner for Government Transport (1954) 100 CLR 226 Oswald v New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Plummer v Stannard Bros Launch Service (2005) 145 IR 111 Port Waratah Coal Services Enterprise Agreement 2007 [2007] NSWIRComm 1093 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services (2006) 153 IR 125 PWCS Limited Enterprise Agreement 2007 Riley v WorkCover Authority [2006] NSWIRComm 108 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328 Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347 WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306

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1 This matter concerns the notification of a dispute by the Seamans' Union of New South Wales ('the Union') on 21 December 2007 pursuant to s130 of the Industrial Relations Act 1996 ('the Act') and was subject to compulsory conference proceedings on 11 January 2008 at the request of the notifier 2 The SUA and Port Waratah Coal Services Limited ('PWCS') are parties to a Referral Agreement pursuant to s146A of the Act entered into on 21 November 2007. That Agreement confers on the Commission the full powers contained in the Act to resolve disputes, including dismissal of employees, through conciliation and arbitration. 3 The dispute was notified in the following terms: 1. Port Waratah Coal Services Limited (PWCS) operates two Coal-Handling Facilities at Carrington and Kooragang Island in or around Newcastle. 2. PWCS employs individuals at both sites who are members of the Maritime Union of Australia (MUA). 3. On 21 November 2007, PWCS filed the PWCS Union Collective Agreement 2007 (UCA) with the Workplace Authority. 4. On 21 November 2007, PWCS made an application in the NSW Industrial Relations Commission, in Matter 07/2077, to, amongst other things, file a Referral Agreement (RA), pursuant to sections 146A and 146B of the NSW Industrial Relations Act 1996. 5. Clause 14(f) of the UCA deals, in part, with Dispute Settlement Procedures and reaffirms that the parties have conferred jurisdiction in the NSW IRC to settle disputes by conciliation or, if necessary, by arbitration, pursuant to the Referral Agreement dated 21 November 2007. 6. The RA, at Recital D, also reaffirms the parties' intentions that the NSW IRC is to be invested with powers to settle disputes about dismissals of employees covered by the UCA. 7. The MUA and PWCS are presently in dispute concerning the purported termination of an MUA member and PWCS employee, Mr Brett Dorsett, for allegedly breaching PWCS Policy, Procedures and OH&S Requirements. PWCS further allege that they no longer retain trust and confidence in Mr Dorsett as an employee. They have purported to terminate his employment effective 18 December 2007 and have indicated an intention to make payment of salary in lieu of notice. 8. The MUA have complied with the sub-clauses 14 (a) to (e) of the Dispute Settlement Procedure in the UCA and sub-clause 2.2 of the RA. 9. The Union, on behalf of Mr Dorsett, requests the assistance of the Industrial Commission of New South Wales to resolve tis dispute. 10. Given that all parties are situated at Newcastle, the Union respectfully requests that the matter be listed for conference in Newcastle as a matter of urgency. 4 During compulsory conference proceedings on 11 January 2008 the Commission issued the following Statement and Recommendation: 1. This matter is before the Industrial Relations Commission of New South Wales in accordance with the provisions of a Referral Agreement filed in the Commission on 21 November 2007 pursuant to ss 146A and 146B of the Industrial Relations Act 1996. 2. Mr J Boyle appeared for the notifier, the Maritime Union of Australia ('the Union'). Mr W Carman appeared for Port Waratah Coal Services Limited ('the company'). 3. During the course of a private conference this morning, the Union raised a number of personal and compelling circumstances on behalf of the employee concerned that were not put to company representatives during the various disciplinary interviews that ultimately led to the termination of his employment on 18 December 2007. For his part, the employee explained to the Commission and company representatives why those reasons were not articulated when he had sought to defend the possible termination of his employment. 4. Both the Union and employee have given undertakings today concerning the employee's commitment to improve his personal health and lifestyle. 5. Against that backdrop and notwithstanding the gravity of the conduct alleged by the company, I made the following statement at the conclusion of this morning's conciliation conference: I issue a strong recommendation that in view of the spirit and intent of the Enterprise Agreement and its objectives to build industrial goodwill amongst the parties, I recommend that the company gives very strong consideration to all matters raised by the employee and Mr Boyle this morning in the context of his defence to his termination of employment. 6. The matter is set down for report back at 12.30pm on Thursday 17 January 2008. 5 PWCS wrote to the Union on 16 January 2008 and advised it was not willing to reinstate Mr Dorsett. Directions for arbitration were subsequently issued on 17 January 2008.

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14 Mr Dorsett said Mr Dove then left the crib room for a short time and when he returned he said words to the following effect: I have been informed by Wayne Johnson that you have to do an alcohol test. He said he then replied with words to the effect of "righto, I'm ready". 15 Mr Dorsett said they then went to the gatehouse which is approximately 200 metres away from the crib room. Located on the wall of the gatehouse and connected to the electricity supply was a machine to breath test for alcohol. He said he had not seen the machine before. Upon arrival, Mr Dove informed the security guard why they were present and the guard provided him with a straw to blow into the machine. He did so and the machine provided a digital readout which indicated that he had returned a positive result of 0.048 per cent BAC. Mr Dorsett said he was shocked and could not recall what was said at the time. However he did recall Mr Dove telling him to go back to the crib room and wait for an hour before doing another test. He said he returned to the crib room and waited there alone. He had a glass of water and after approximately one hour Mr Dove returned and took him back to the gatehouse where he undertook a further test which produced another positive result of 0.022 per cent BAC. 16 Mr Dorsett said he was subsequently asked some questions by the security officer, an employee of a contractor to PWCS concerning how long it was since he had eaten, whether he had smoked a cigarette recently, had any recent medical or dental treatment and whether he had taken any tablets, drugs or insulin. He said he answered no to all these questions and recalled Mr Dove then saying words to the effect: I will have to inform Wayne Johnson by phone what's happened and you have to leave the site. Do you want me to call a taxi? He said he advised Mr Dove that he did not require a taxi and Mr Dove then said: Is there any reason for your coming to work with alcohol in your system? Is there any other problem? Mr Dorsett said he responded with words to the effect: There are no other problems. I did drink last night but I thought I was fit to attend for work. He said he then left the site and drove home and told his wife what had occurred. 17 Mr Dorsett said he returned to work on 2 July 2007 at 6.30am. Prior to commencing work he was breath tested again at the gatehouse in the presence of Mr Dove, a security guard and Mr Phil Spence, his Union delegate. The test produced a negative result and he commenced work. He said that during the course of the day he was called into Mr Johnson's office where Mr Dove and Mr Spence were also present. Mr Johnson said words to the following effect: I'm very disappointed about Sunday's outcome especially when you were given advance warning. It was very stupid and we are very upset. Mr Dorsett said he replied with words to the following effect: I am quite shocked myself and surprised that I was still over the limit. 18 Mr Dorsett deposed Mr Johnson subsequently explained he was to be given a written warning and the warning would be placed on his personnel file. He was also advised that he would be subjected to two random alcohol and other drug tests within the next six months, the first of which was to take place during August. Mr Johnson also advised that if a further breach occurred within the next 12 months, further disciplinary action would occur including "possible termination of employment". In addition, Mr Johnson required him to attend for counselling with Mr Kerry Berry, the employee assistance provider (EAP) and, in consultation with Mr Dove, he was required to develop a rehabilitation plan which was to be supplied to Mr Johnson by the end of July 2007. 19 During the course of the week commencing 2 July 2007, Mr Dorsett said he rang Mr Berry to arrange a meeting. Mr Berry informed him that he was off site and that he could catch him on "that number" at any time to arrange a meeting in the near future. He said he telephoned Mr Berry the following week and was told that he was driving to Sydney. He asked him to ring him back at another time to arrange a meeting. Mr Dorsett said he telephoned Mr Berry again approximately one week later and left a message on his answering service explaining who he was and that he was ringing to arrange a meeting. He and requested Mr Berry call him back. Mr Berry did not return his call. 20 Mr Dorsett said he tested negative to a random alcohol test during August 2007. 21 Mr Dorsett deposed that in mid June 2007 his brother was diagnosed with cancer and in mid July 2007 he was referred to a medical specialist who arranged his immediate hospitalisation and surgery. 22 Mr Dorsett said that during the week commencing 10 September 2007 he had a conversation with Mr Dove in his office. Mr Dove said words to the following effect: We have to get this rehabilitation plan worked out for your fitness for work. Wayne Johnson wants it in writing. He replied: What does he want me to write? I can explain my fitness for work face to face. If he wants it in writing I need another meeting with him so he can explain what he wants to me. 23 At that time Mr Dorsett said he had also informed Mr Dove he had attempted to contact Mr Berry on three occasions with no result and advised him that Mr Berry had not returned his last call.

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38 Mr Dorsett attended a meeting with the terminal manager, Mr Carman at 3.00pm on 18 December 2007. Ms Jackson and Messrs Johnson, Dove and Outram were also present. Mr Dorsett deposed Mr Carman commenced the meeting by highlighting the seriousness of his third breach of the AOD Policy and reminded him of his obligation to follow that Policy and for the need for PWCS to have trust and confidence in him. Mr Carman then asked him to explain his actions to which he replied: I am aware of the seriousness of the breach. I am sorry for what I have done and for my misjudgement and stupidity. I was in the wrong place at the wrong time. I am aware of the severity of my actions. All I ask of you is for a chance to redeem myself and to prove my commitment to work. I have 11 years unblemished work service. I acknowledge from here on that there would have to be zero tolerance and I would have to stick to my rehabilitation plan. 39 He said Mr Dove spoke highly of his work ethic once more without detracting from the seriousness of what had occurred. He said Mr Carman then said words to the effect: The seriousness of the breach is high. We need a 5 minute break to consult amongst ourselves to make a decision. 40 Mr Dorsett said approximately 10 minutes later the meeting reconvened and Mr Carman handed a copy of a letter to everyone present. He then went through the contents of the letter dated 18 December 2007 and advised that the decision had been made that Mr Dorsett should be terminated. 41 Mr Dorsett telephoned Mr Carman on 19 December 2007 in an effort to arrange a meeting with the general manager of PWCS, Mr Graham Davidson. Mr Carman later confirmed that a meeting had been arranged for 10.00am on 20 December 2007 and he could attend with a support person. Accompanied by his wife, he attended that meeting with Mr Davidson. Another person from PWCS was also present but he could not recall his name. During the meeting he explained to Mr Davidson what had happened and his circumstances including his employment history. He also provided Mr Davidson with a letter from his doctor, Dr Nicholas Scott dated 19 December 2007.

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45 Mr Dorsett deposed that since his termination he had reconciled with his wife and the family had reunited. His brother's cancer was now in remission and he had returned to full time employment. 46 Mr Dorsett stated he had undertaken six sessions of drug and alcohol counselling with the Hunter Health Centre. His most recent visit was 27 June 2008. 47 In his Statement in Reply filed on 4 April 2008 Mr Dorsett referred to Mr Dove's Statement filed on 13 March 2008 and stated that on 26 June 2007 he was working in the 7.01 transfer house and not the 4.01 transfer house as contended by Mr Dove. Further he did not have a two way radio whilst at work that night as he was not issued with one. Mr Dorsett said he became ill that night and returned to the crib room where he rang Mr Dove and told him that he was ill and was going home. Mr Dove subsequently asked him where he was and when he replied that he was in the crib room, Mr Dove told him that he would come and see him. According to Mr Dorsett, Mr Dove arrived at the crib room shortly thereafter and a conversation took place. He denied that he said the following words to Mr Dove "I don't want to do a test and I'm going home", on the grounds that at the time he did not know he was going to be subject to a random alcohol and other drug test. 48 Mr Dorsett further denied that Mr Dove said to him "Brett, you realise by not doing a test it will be classed as a positive result." Mr Dorsett stated that at no time during his conversation with Mr Dove was he told that if he did not do the test it would be classed as a positive result. Mr Dorsett also denied stating the following words to Mr Dove "I wouldn't pass a test - I've had a smoke." In that regard, Mr Dorsett contended that it would have made no sense for him to have made such a statement as he did not know whether the proposed test related to alcohol or other drugs. 49 In relation to the alcohol test undertaken at approximately 7.15am on 2 July 2007, Mr Dorsett refuted Mr Dove's version of events that he told Mr Johnson that he had stopped drinking before midnight. He further denied that he became angry during the meeting with Mr Johnson, although he did admit he was in an agitated state as he knew the situation was serious. 50 Mr Dorsett agreed with Mr Dove that two formal meetings were held on 2 July 2007. In relation to the second of those meetings Mr Dorsett could not recall being given a deadline of 31 July 2007 to contact Mr Berry. Rather, it was his understanding that he was required to contact Mr Berry within the next few weeks. Further, he did not recall Mr Johnson telling him that he needed to get adequate rest before he came to work. 51 With respect to Mr Dove's written evidence that Mr Dorsett had told him that he had tried to contact Mr Berry and had left a message on his answering machine, he denied stating "He will have to contact me, we're both busy people." 52 Mr Dorsett further stated that to the best of his recollection on one occasion he said words to the following effect to Mr Dove "Kerry Berry is a missing person. Guess we have both been busy. I am waiting on his return call." 53 Mr Dorsett further agreed that on 18 August 2007 he undertook a scheduled other drugs test and not a random alcohol test as set out in his first Statement. Mr Dorsett took issue with Mr Dove's Statement that Mr Johnson believed he was not taking the matter seriously. 54 With respect to the Statement of Mr Johnson filed on 13 March 2008, Mr Dorsett denied that on 26 June 2007 Mr Dove had discussed with him the ramifications of leaving the site and not undertaking the necessary test. He further stated that he was unaware that leaving the site would be considered a level 1 breach under the AOD Policy until he was informed of this by Mr Johnson on 28 June 2007. He further denied that he had told Mr Dove that he was unwilling to conduct the test as he had recently used marijuana. 55 Mr Dorsett referred to the AOD Policy and Procedure that was introduced in 2001 and set out under Annexures A and B to Mr Johnson's Statement. In relation to these documents Mr Dorsett contended that he had received no training in relation to the use and/or misuse of alcohol and other drugs by PWCS since the initial presentation of the Policy and Procedure in 2001. Consistent with that initial presentation and his general knowledge he was of the view that in turning up to work on 1 July 2007 he would not be in breach of the Policy. 56 Mr Dorsett denied Mr Johnson's contention that he was not keen to give him a copy of his action plan towards rehabilitation. In the alternative he stated he had showed Mr Johnson a copy of the action plan during a meeting on 19 September 2007 and later gave a copy to Mr Dove. 57 Mr Dorsett said during the course of the meeting on 14 December 2007 he could not recall Mr Johnson using words to the effect of "and it is fair to advise you that PWCS is now contemplating terminating your employment." 58 Mr Dorsett's third Statement filed on 26 May 2008 referred to the Statement of Shaun Sears filed on 18 April 2008 as follows: I refer to paragraph 11 of the Sears Statement. I did speak to Mr Sears at that time. The purpose of my conversation was to get a clear understanding as to how the AOD Policy worked and how it would affect my return to work from a holiday I had planned. I was going on a golfing trip with 40 others and knew there would be alcohol and marijuana consumed on the bus both up and back. In that conversation:

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Mr Dorsett deposed he recalled Mr Sears stating words to the effect of " My advice would be to have some early and stop in the last few days to clear your system ." Mr Sears had also suggested that Mr Dorsett take some self testing kits on the trip with him. 59 With reference to Mr Sears' Statement that a series of employee briefings were conducted in August/September 2001, which included the content of the AOD Policy procedure as introduced, Mr Dorsett stated that whilst he was present at the presentation in or about 2001 by Mr Sears he could not recall the detail of that presentation and "never understood that leaving the site sick when tests were being conducted was regarded as a refusal to test." 60 Mr Dorsett further contended there were two occasions prior to 2007 when he was selected for testing but was not tested because he had to leave the site and on those occasions he was not regarded as having refused a test. He elaborated that the first occasion was around late 2005 or early 2006 when he was on day shift. On that occasion he returned to the crib room about 8.30am and was told by his supervisor that he was required to undertake a test. He said the testing van was outside the crib room and he agreed to take the test. He subsequently left the site to obtain a crib meal and when he returned the van had gone. Accordingly, there was no test and no subsequent follow up about that test, nor was he regarded as having refused a test under the Policy. 61 Mr Dorsett stated the second occasion was in or around mid 2006 when he was also working day shift and he was told by his supervisor, Mr Gary Herret that he was required to undertake an alcohol or other drug test. He said that two hours later he received a telephone call and had to return home to deal with a domestic issue. He contended he informed Mr Herret who agreed to the request. He said he was not tested nor was he required to be tested again when he returned to work the next day. Similarly this was not considered to be a refusal to test. 62 In cross examination, Mr Dorsett confirmed to Mr Warren that between 2004 and the end of 2007 he had a history of using drugs such as cannabis and alcohol. Mr Dorsett further confirmed that he had tested positive to cannabis in workplace tests undertaken in 2004 and as recent as December 2007. Mr Dorsett also confirmed that when he spoke to Mr Sears prior to the golfing trip when he had expressed that alcohol and cannabis would be used by persons travelling on the bus, he wanted to obtain a clear understanding as to how the AOD Policy worked and how that Policy would affect his return to work after the golfing trip holiday. Mr Dorsett said that he knew that under the Policy he was not to attend for work any time under the influence of alcohol or having recently used cannabis. Mr Dorsett confirmed that when he sought to speak to Mr Sears he knew at that time he was going to be using cannabis and consuming alcohol during the holiday. Insofar as the Policy was concerned, Mr Dorsett said he knew employees were required to attend for work clean of cannabis and not under the influence of alcohol irrespective of whether they had a single day off or had been on holidays for a week or more. 63 Mr Dorsett denied saying to Mr Sears "we're going to get on it", meaning drugs and alcohol and seeking a dispensation from Mr Sears not to be tested for a couple of weeks after his return to work. Simply put, it was Mr Dorsett's evidence that he was seeking advice from Mr Sears about "the best way to handle it" consistent with the requirement of the Policy that no employee can attend for work under the influence of alcohol or cannabis. He was adamant that he had never asked Mr Sears for a dispensation or "for any sidelining of the Drug and Alcohol Policy". In his view, he was simply seeking some advice and for Mr Sears to explain the Policy in an off the record discussion in Mr Sears' office. 64 It was also Mr Dorsett's evidence that Mr Sears had intimated to him that "you ought to have some early and stop the last few days to clear your system". Mr Dorsett denied that he had displayed a reasonably cavalier attitude to drugs and alcohol during 2004. He dismissed the proposition that drinking alcohol and using cannabis was more important to him than his work. In rejecting the suggestion that he had continued to drink to excess and smoke cannabis right through 2007, he confirmed that he tested positive to alcohol in June 2007 and had tested positive to cannabis in December 2007. 65 Mr Dorsett accepted the proposition that when Mr Sears presented the AOD Policy during 2001 a slide was presented entitled "Testing", "Refusal, Avoidance or Falsification" that stated "refusal to undergo testing has a similar consequence to recording a positive test result". 66 Mr Dorsett confirmed there was an occasion during late 2005 or early 2006 when he left the site to obtain a crib when he knew that he was required to undertake a test. He further stated that he did not undertake the required test and contended there was no follow-up or warning given to him. 67 Mr Dorsett stated he left the site occasionally during a day shift to obtain a crib for himself and sometimes for others. He confirmed that he was aware that prior to leaving the site he was required to seek permission from his supervisor. Mr Dorsett confirmed the testing van would park outside the crib room. He also confirmed that the test van would be visible to employees who entered the PWCS worksite through the employees' car park. He further confirmed that in the event an employee was moving around the site in a company vehicle, that employee would normally park near the crib shed and therefore close to the testing van. 68 Mr Dorsett said that when he left the site in late 2005 or early 2006, he noticed the testing van was parked near the crib shed. However when he returned the testing van was no longer parked in its previous location. Mr Dorsett confirmed he left the site at approximately 8.30am for some 15 minutes. He also agreed the official records served on his solicitor stated the testing van did not leave the site until 10.45am. Mr Dorsett admitted he had left the site without the permission of his supervisor Mr Dove. Mr Dorsett also agreed with the proposition that he knew he was required to undertake a test that day. Mr Dorsett denied that he remained off site until the van had left at 10.45am. 69 Mr Dorsett denied that on 26 June 2007 Mr Dove had squarely put to him if he went home and did not do the test it would be classed as a positive test. He also confirmed when he arrived at work he did not complain to Mr Dove or inform him that he felt unwell. Mr Dorsett stated he had asked Mr Dove what type of test he was required to undertake on as "just a natural reaction". Further, he also denied expressing a concern to Mr Dove that the required test might be a test for cannabis. In the alternative, Mr Dorsett stated he had informed Mr Dove that he was going home sick before asking a question concerning the type of test. 70 Mr Dorsett denied that when he left the crib room to commence work he saw the testing van was parked outside. He also denied that he heard the radio call to come back to the crib room and undertake the required test, on the grounds that he was working in the transfer house and did not have a radio. Mr Dorsett admitted that he was driving a company vehicle fitted with a two-way radio when he sought to find Mr Dove and inform him that he was going home. He denied that he heard Mr Dove's call on the two-way radio for Mr Dorsett and others to return to the crib room for the purpose of undertaking the required test. While he maintained his decision to inform Mr Dove he was going home sick was taken prior to knowing drug testing would be undertaken, he admitted that when he returned to the crib room a testing van was parked outside. 71 It was Mr Dorsett's evidence that when Mr Dove entered the crib room and said "I need to speak with you", he did not say "I don't want to do the test. I'm going home". He also confirmed Mr Dove had made it clear to him that he was required to undertake the test before he left the site. He also confirmed he had asked Mr Dove what sort of test he was required to undertake and in reply, when Mr Dove said "I don't know", he proceeded to state words to the effect "I'm going home sick, I'm not doing the test". In that regard Mr Dorsett contended Mr Dove responded with words to the effect "You can go. They're not going to like it". Mr Dorsett rejected the proposition that the reason for wanting to leave the site was due to the fact that he had recently smoked cannabis and knew that he would not pass the test. Mr Dorsett was emphatic Mr Dove did tell him failure to take the would be classed as a positive test. 72 Mr Dorsett confirmed that when he returned to work on 1 July 2007 he knew he was required to undertake an alcohol test as Mr Johnson had contacted him at home. Mr Dorsett said he was unaware that a breath analyser machine was located in the gatehouse at the entrance to the Kooragang terminal. He was also unaware of the ability of employees to self check prior to attending for work until quite recently when Mr Dove took him there on 1 July 2007 to undertake an alcohol test. Mr Dorsett said that he had consumed some alcohol during a neighbourhood party on 30 June 2007 and recalled that he had stopped drinking well prior to midnight. He agreed with Mr Warren that a breach of the AOD Policy was a serious matter and would have serious consequences. Whilst he knew that he would be required to undertake an alcohol test prior to the commencement of work on 1 July 2007, he denied that a positive test at 6.00am displayed a non-caring attitude towards the Policy. Rather, he put the breach down to his own misjudgement that he did not leave the party early enough to allow for a 6.00am start the following day. Mr Dorsett agreed that on both 30 June and 1 July 2007 he was aware the situation concerning his employment was serious and, notwithstanding that situation, he attended the party and drank a significant amount of alcohol. 73 Mr Dorsett confirmed when he met with Mr Johnson and Mr Dove on 2 July 2007, Mr Johnson read a letter to him that contained a warning concerning the implications for breach of the AOD Policy and in addition Mr Johnson had read the following words: As advised on Monday 28 June 2007 you will be subject to two random alcohol and other drug tests within the next six months.

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He agreed the letter also stated that the first of those tests would occur within one month and if a second breach occurred within the next 12 months further disciplinary action would occur up to and including termination of employment. In that regard he confirmed he had been squarely put on notice that he was required to undertake two further random alcohol and other drug tests. 74 Mr Dorsett admitted that notwithstanding Mr Johnson's warning, he had knowingly consumed cannabis in December 2007 and had subsequently tested positive. Mr Dorsett agreed he had been instructed by Mr Johnson and the letter had also stated that he was required, in consultation with Mr Dove, to develop a rehabilitation plan to resolve his fitness for work issues. He also agreed Mr Johnson had stressed that he was required to provide a copy of the rehabilitation plan by 31 July 2007. However, Mr Dorsett said while he was not sure of the exact date, he was aware he was required to discuss the matter with Mr Dove and seek the required counselling. 75 Mr Dorsett could not specifically recall, but later agreed Mr Johnson had said to him that the level of risk in the operation of PWCS' plant and equipment, for himself as well as other team members, was high when he was under the influence of alcohol or other drugs. He also agreed that he was required to drive certain equipment on site including a utility work vehicle and the coal reclaimer, when it was not operating automatically. He further agreed that on occasions he was required to drive a stacker and perhaps less rarely, bobcats and front end loaders. He also agreed that he would regularly drive a ship loader and on occasions when he worked in the control room he would control the movement of coal around the whole site using various pieces of equipment. When working in the capacity of wharf foreman he would also advise and instruct the loader operator in his operations. 76 Mr Dorsett recalled that on 11 September 2007 Mr Johnson made a further request to attend the necessary drug and alcohol counselling with Mr Berry and said to him that by failing to attend counselling he had demonstrated he was not seriously dealing with his alcohol issues. He further agreed he said words to the effect he had tried to ring Mr Berry who had not returned his calls. He also recalled Mr Johnson saying to him that PWCS' patience was swiftly running out but he could not recall Mr Johnson saying that as an absolute last resort he would be sacked. Mr Dorsett confirmed the rehabilitation plan was finally provided to PWCS on 19 September 2007. Mr Dorsett agreed the one page rehabilitation plan he prepared did not deal with the issue of cannabis consumption. 77 Mr Dorsett confirmed that at no time during December 2007 or January 2008 did he say to PWCS or any of its officers, including the general manager, Mr Davidson, that he had stopped using cannabis, had arranged to attend a drug clinic and had prepared a plan for getting off cannabis "once and for all". 78 Mr Dorsett said he was aware that termination was an option available to PWCS when he tested positive to having consumed cannabis in December 2007. Mr Dorsett said he was also aware PWCS was contemplating the termination of his employment when Mr Johnson wrote to him and stated: It appears that PWCS's recent tests simply confirms the pattern of behaviour in which you have failed in your obligation to be a trustworthy employee who PWCS can have confidence in. Frankly PWCS cannot see how it can have trust and confidence that you will turn up to work in a fit state to safely perform your duties.

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Mr Dorsett said he was aware that he had been invited to provide written details to PWCS setting out any valid reason for the latest test results and any reasons why PWCS should not bring his employment to an end. He further confirmed the gist of his response was " my timing was out ". 79 Mr Dorsett denied he decided to seek counselling for his drug and alcohol problems after the decision was made to seek his reinstatement. In support of that proposition, he said he first spoke to his doctor in December 2007 and it was not until the end of February 2008 that counselling was arranged. He further agreed that in all the discussions and meetings that he had with Mr Dove, Mr Johnson, Mr Carman and Mr Davidson concerning his performance he had not advised any of those persons that he had been to see his doctor to arrange counselling. He later confirmed that he had first sought the assistance of his doctor on 20 December 2007. 80 With respect to PWCS sponsored counselling, Mr Dorsett said he had met with Mr Berry on site in October 2007 and he had a further meeting with him in December following his termination. Mr Dorsett stated that Mr Berry's evidence that he could not recall being contacted or having met with Mr Dorsett in 2007 was simply untrue. 81 In re-examination Mr Dorsett recalled that on the day he left the site to get a crib he had come off the ship loader and upon entering the crib room at around 8.30am a supervisor informed him that he was to undertake a test for alcohol and drugs. In response he said "yes, okay, that's fine". He obtained a cup of coffee and sat outside the crib room and watched a person enter the van. He said that while drinking his coffee he saw someone go into the van and someone come out. When he later came out of the crib room to go to the testing van, the door was shut. He concluded the door was shut because somebody was taking a test and decided to leave the site and obtain a crib. He recalled mentioning to someone in the crib room that he was going to the shop to obtain a crib. He also restated it was PWCS policy for employees notify their supervisor before leaving site. He said supervisors normally agreed to a request to leave the site so he decided to obtain the crib without seeking the required permission. Upon his return he recalled he came straight back to the crib room and had not made any diversions to other work sites along the way. However the test van had gone. 82 Mr Dorsett stated that when he prepared the rehabilitation plan in September 2007 he did not mention cannabis because the discipline issue related to alcohol. Mr Dennis Outram

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97 In cross examination Mr Outram could not recollect Mr Johnson telling him that he should seek advice and assistance in compiling the required letter setting out Mr Dorsett's reasons for the positive test result and associated matters. Mr Outram stood by his earlier evidence that Mr Johnson said words to the following effect to Mr Dorsett: You may not like the penalties we put on you but it may be something you are going to have to put up with. 98 Mr Outram referred to the Statement of Mr Johnson filed on 13 March 2008 and said he could not recall Mr Johnson providing Mr Dorsett with copies of the AOD Policy and Procedure developed in 2001 following consultation with the single bargaining unit (SBU) of which he was a member. At the time the SBU was told the AOD Policy and Procedure would be updated over time and this had not occurred. 99 Mr Outram said that with respect to what is known as 'Level 3', where there are three positive tests within a 12 month period, the AOD Procedure provides that such a result may lead to termination of employment. At this level there is a discretion in PWCS to terminate or otherwise. It is not a case of three strikes and you are gone. In that regard Mr Outram said: I believed that PWCS would exercise its discretion in Mr Dorsett's favour by not terminating him having regard to Mr Johnson's comment at the meeting on 14 December and the different circumstances related to Mr Mason, who, unlike Mr Dorsett, was a threat to the occupational health and safety of fellow workers. Mr Dorsett had the support of his fellow workers and there were complaints about his work performance and, up to December 2007, PWCS had engaged Mr Dorsett in positions of trust. 100 Mr Outram confirmed that while there had been some minor revisions to the AOD Policy, to his knowledge the procedures to be taken pursuant to that Policy had not changed. He also confirmed that when the Policy was first discussed, it was raised in the context that no employee, whether they be an apprentice or the general manager, shall attend work under the influence of alcohol or under the influence of other drugs. He said the Policy formed part of a platform of occupational health and safety procedures that were applied within the PWCS site. 101 He agreed with the proposition put to him that plant located on site, which included stackers, reclaimers, bob cats, front-end loaders, ship loaders, conveyer belts carrying coal and trains moving on the site meant that it would be totally unsafe for anybody to be working on the PWCS site who was under the influence of alcohol or other drugs. He also accepted the proposition that it would be a real concern for PWCS if anyone was on site working within that plant under the influence of alcohol and other drugs. He agreed that if the policies and procedures of PWCS were not followed there was the potential for death or serious injury. 102 Mr Outram stated that prior to 14 December 2007, he was unaware Mr Johnson had informed Mr Dorsett, both in writing and verbally, that if a second breach occurred he would face further disciplinary action up to and including termination of employment. Mr Outram said he only became aware of the 2 July 2007 incident on 11 December 2007. However, he did confirm that on and after 14 December 2007, he knew that PWCS was beginning to doubt whether it had the trust and confidence that Mr Dorsett would turn up for work in a fit state to safely perform his duties. 103 Mr Outram said he took Mr Dove's Statement that Mr Dorsett was one of the best and valuable operators on his team as a Wharf Foreman and Control Room Operator to mean that Mr Dove supported him. He later agreed that neither Mr Dove nor Mr Johnson had said that Mr Dorsett had an exemplary work record - they were his words and were uttered in the absence of any knowledge that Mr Dorsett had received a warning regarding drug and alcohol use in 2004 and written warning regarding drug and alcohol on 2 July 2007. 104 Mr Outram agreed that the statement attributed to Mr Johnson to the effect "you may not like the penalties we've put on you, but it may be something that you are going to have to put up with", may have been an interpretation when Mr Johnson recalled he said "there will be consequences from today. They may not be what everyone wants, but they will be considered in light of the circumstances". Further, notwithstanding the written advice from Mr Johnson to Mr Dorsett to the effect "we want you to give reasons as to why we shouldn't terminate your employment", Mr Outram maintained his view that the penalty PWCS was likely to impose on Mr Dorsett was something less than termination. 105 Mr Outram stated he had concluded Mr Dorsett had an exemplary work record in the absence of knowing that he had been given a drug and alcohol warning in 2004 and a written warning regarding drug and alcohol on 2 July 2007. 106 Mr Outram agreed with the proposition that the AOD Policy was a defensive policy designed to prevent people from working under the influence of alcohol and other drugs and to "prevent them turning up for work in that condition as well as to detect if they are at work". Mr Wayne Jolly

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Dorsett: I wouldn't pass a test - I've had a smoke. 118 Mr Dove deposed shortly after 8.00pm he telephoned Mr Johnson to inform him that Mr Dorsett had been scheduled to take an alcohol and drug test that evening and instead he said that he was unwell and needed to go home. 119 Mr Dove stated he advised Mr Dorsett of the consequences of leaving the site would constitute a refusal to do a test. He further stated Mr Dorsett had said to him that it did not matter as he was too sick to stay at work. In response Mr Johnson advised him Mr Dorsett was required to provide a negative test result before he returned to work. 120 The following day, 27 June 2007 Mr Johnson telephoned him to discuss Mr Dorsett's refusal to take the test the previous night and he also asked him about his discussions with Mr Dorsett prior to his decision to leave the site. He stated that he had a conversation with Mr Johnson in words to the following effect: Dove: I made it clear to Brett so he understood this would be considered a first breach under the Policy. Brett told me the reason he refused a test was because he had smoked a joint. Johnson: I will think further on the issues and contact Brett. 121 Mr Dove further deposed that between 27 June and 1 July 2007, Mr Johnson contacted him at home to discuss Mr Dorsett's return to work. He said Mr Johnson was firm that because Mr Dorsett was scheduled to undertake an alcohol test the previous Tuesday evening, PWCS would request him to undertake an alcohol test before he returned to work. He further stated that he would inform Mr Dorsett of that requirement. 122 Mr Dove deposed that on 1 July 2007 Mr Dorsett contacted him at approximately 6.30am and stressed he was required to undertake an alcohol test before he commenced work that morning. 123 Mr Dove deposed that at approximately 6.45am on 1 July 2007 he took Mr Dorsett to the gatehouse where he undertook an alcohol test using a wall mounted unit. Mr Dorsett registered a positive reading of 0.048 percent BAC. Mr Dove stated that after this reading he took Mr Dorsett back to the amenities building where he made him wait an hour before retesting. 124 At approximately 7.00am Mr Dove telephoned Mr Johnson to advise him of Mr Dorsett's positive result. Mr Dove deposed Mr Johnson expressed concern Mr Dorsett had posted a 0.048 percent BAC positive reading and in that regard noted that the AOD Policy specifically required an employee such as Mr Dorsett to have a one hour break before being further tested. 125 Mr Dove deposed that at approximately 7.50am he took Mr Dorsett to the gatehouse for a re-test which subsequently recorded a reading of 0.022 per cent BAC. That result was formally recorded by the security guard Mr Terry Gawn. In a conversation with Mr Gawn, Mr Dorsett confirmed that he had not smoked a cigarette prior to the test nor was he currently taking any medication including tablets, drugs or insulin. He also confirmed that he had not received any recent medical or dental treatment. 126 Mr Dove deposed that he subsequently took Mr Dorsett to the supervisor's office where he read to him the relevant parts of the AOD Procedure. He said a conversation between Mr Dorsett and himself took place with words to the following effect: Dove: Do you require a taxi to take you home.

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128 Mr Dove deposed that on 2 July 2007 he attended the gatehouse with Mr Dorsett where he undertook an alcohol test which subsequently provided a negative reading. Mr Dorsett later returned to his normal shift duties. Later that day Mr Dove stated he attended a meeting with Mr Johnson, Mr Dorsett and his support person Mr Spence to discuss Mr Dorsett's two breaches of the AOD Policy. He deposed Mr Johnson had expressed disappointment towards Mr Dorsett's actions and said words to the following effect to Mr Dorsett: "You've had three days notice and you come to work and test positive." Mr Dorsett explained that he had been to a street party and thought that he would be alright by 6.00am. The meeting subsequently adjourned to a later time that day. 129 When the meeting reconvened at approximately 4.00pm Mr Johnson issued Mr Dorsett with a written warning letter. Consistent with that letter Mr Johnson informed Mr Dorsett that he was required to seek counselling and to contact PWCS' Employee Assistance Program counsellor Mr Berry by 31 July 2007. He also informed Mr Dorsett that he was required to prepare a fitness for work plan and set out in detail how he proposed to manage his problems. 130 Mr Dove deposed Mr Johnson then said to Mr Dorsett in words to the following effect: You need to manage how you come to work, you need to know when to stop alcohol consumption prior to attending work, you need to know to get adequate rest before you come to work. You also need to keep Rod informed of your progress. The plan should also manage relapses. 131 Mr Dove deposed that in early August 2007 he spoke to Mr Dorsett on two occasions to request an update of his rehabilitation plan. In response Mr Dorsett informed him he had tried to contact Mr Berry but had been unable to do so. He said he had left a message on his answering machine and commented "He will have to contact me, we are both busy people." He subsequently undertook to address the fitness for work plan requirement. 132 Mr Dove deposed that on 18 August 2007, Mr Dorsett returned a negative result for an other drugs test conducted by Frontline. Frontline also advised there was a trace of a substance, probably THC, but insufficient to test "non-negative". 133 In response to a question from Mr Dove enquiring as to whether Mr Dorsett could still be using cannabis, a Frontline employee conceded that the trace of substance might simply be residue from his last incident in July 2007. Mr Dove deposed that he did not discuss this matter with Mr Dorsett as he had provided a negative sample. 134 Mr Dove deposed that on either 20 or 21 August 2007, Mr Johnson requested an update on Mr Dorsett's rehabilitation plan. The following email forwarded to Mr Johnson on 22 August 2007 conveniently summarised the issues: From: DOVE, Rod

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135 Mr Dove deposed that following Mr Dorsett's return from leave on 11 September 2007, he attended a further meeting with Mr Johnson, Mr Dorsett and Mr Spence to discuss Mr Dorsett's actions following his two breaches of the AOD Policy. During that meeting, Mr Johnson requested Mr Dorsett to undertake counselling and said words to him to the following effect: Brett, you are not showing us that you are dealing with your fitness for work issues in that you haven't contacted the counsellor regarding your alcohol breaches at work and you haven't developed a plan in writing as required. 136 Mr Dove said Mr Dorsett was reminded of the requirement to complete and file a fitness for work plan and undertake the required counselling. Mr Dove stated Mr Dorsett provided him with a one page document setting out his objectives to present himself for work on 19 September 2007. A copy of Mr Dorsett's action plan was attached to Mr Dove's Statement under Annexure E as follows: Aims for me to present myself fit 4 work Participate in more gym work when convenient; Take notice of consumption of beverages the day prior to commencing work; Try to take couple of hours downtime before start of night work; Keep an eye on diet and intake; Aim more at healthy rather than happy; Reduce smoking; Keep in touch with the supervisor about progress; Consume something before start of work (food); Have more understanding of standard drink. 137 Mr Dove further deposed that on 20 September 2007 he provided Mr Dorsett with correspondence acknowledging that he had completed his requirements with respect to counselling and the required plan to resolve his fitness for work issues. A copy of that correspondence was attached to his Statement as Annexure F where the third paragraph stated: As discussed, your performance in this regard will be monitored. If there are further occurrences of unacceptable behaviour or breaches of PWCS' Alcohol and Other Drug ("A&0D") Policy or Procedure, further disciplinary action will be taken. The final paragraph also stated: If there is anything that you do not understand about this letter or what is expected of you, please contact myself to discuss. 138 On 8 December 2007, Mr Dove advised Mr Dorsett that he was scheduled for an alcohol and other drug test. Mr Dorsett subsequently completed the test and returned a non negative result. The test result indicated the presence of THC. Mr Dove subsequently had a conversation with Mr Dorsett where he said words to the following effect: Oh shit, I'm sorry. I smoked a joint on Wednesday and thought I'd be all right by today. It's just bad timing.

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(b) Any reason as to why PWCS should not bring your employment to an end. Brett, in your written response, you should not only address the reason for the positive drug test, but also address the question of how you can rebuild the confidence that PWCS requires in you as an employee. You will be required to provide me with your response at 2pm, Monday 17 December - your response will then be assessed. You may discuss this matter with your Union and/or employee representatives and if you require access to the PWCS Employee Assistance Program, please let me know. If there is anything that you do not understand about this letter or what is expected of you please contact me to discuss. 141 Mr Dove deposed he and Mr Johnson subsequently discussed Mr Dorsett's response and that put forward on behalf of the Union by Mr Outram. After considering both letters he and Mr Johnson agreed Mr Dorsett had not addressed the necessary actions that were requested of him. 142 In cross examination Mr Dove stated that it was unusual to be given a list of names of employees scheduled for a drug and alcohol test after he had conducted the daily toolbox meeting. Normally, he would advise those required to undertake a test that it would be conducted that day. He said when he was given the list of names he decided to contact employees by two-way radio and follow up the relevant call to Mr X and Mr Y by sending employees who had already undertaken their test to find those employees who were required to return to the crib room. He accepted if Mr Dorsett was working in the 7.01 transfer house or the 4.01 transfer house that day, he may not have heard the two-way radio announcement. 143 Mr Dove recalled that when he first saw Mr Dorsett, he told him he was going home because he was sick. He also confirmed this conversation took place before he was able to inform Mr Dove about the requirement to undertake a drug or alcohol test. As a result of some confusion on the part of Mr Dove recalling whether or not Mr Dorsett had told him he wanted to go home because he felt sick, the following exchange took place: Slevin: So your account from the notes you made on the night of the conversation are that "Whilst in the car park, I received a call on my mobile phone from Brett Dorsett to inform me that he was going home. I asked Brett where he was as I needed to speak with him and as I entered the crib room saw him inside, and then he told me that he did not want to do a test because he was going home. I requested him to have a test and he asked 'What sort of test?' I said I did not know what sort of test was involved, and again he said that he was going home and not doing a test". Now that email seems to indicate the conversation ended there. The conversation ended at that point and is that a true reflection of what was said in your conversation with Mr Dorsett?

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He also admitted that in preparing his Statement filed on 13 March 2008 he had not seen Mr Dorsett's first Statement. 145 In response to a series of questions from Mr Slevin, Mr Dove agreed that in terms of preparing his Statement, he appears to give a full account of the conversation with Mr Dorsett on 26 June 2007 and the gist of the conversation set out in his notes for June and July. He subsequently confirmed that Mr Dorsett had said words to the effect "I wouldn't pass a test. I've had a smoke." He also confirmed that he had informed Mr Dorsett that PWCS would regard his refusal to undertake a test as being a first positive under the Policy, notwithstanding the fact that there was no reference to this position in the warning letter given to him on 2 July 2007. 146 He also confirmed that while he had access to the AOD Policy, he did not have a copy with him when he spoke to Mr Dorsett on 26 June 2007. Moreover since 26 June 2007 he had not checked whether his actions were in accordance with the AOD Policy and Procedure. 147 Mr Dove agreed that an outright refusal to supply a breath or urine sample was regarded as being a breach of the Policy. In further cross examination concerning that part of the Policy regarding "refusal or falsification of tests", Mr Dove confirmed that in Mr Dorsett's case, the Frontline collector was not aware of his refusal and accordingly the collector was unable to initiate steps 1 to 4 under the AOD Policy with respect to a refusal to test. 148 Mr Dove further confirmed Mr Dorsett had made an admission concerning his use of cannabis on 26 June 2007. However, he failed to record those events until he prepared his Statement filed on 13 March 2008. He denied the proposition put by Mr Slevin that in providing evidence in these proceedings he was seeking to assist the Company prosecute its case. 149 In terms of the administration of the Policy, Mr Dove denied Mr Dorsett's account of events that on 1 July 2007 he was simply told to go home. Mr Dove stated Mr Dorsett had been offered transport home but he had declined that offer. Mr Dove was also certain that following the test he took Mr Dorsett back to his office where the relevant sections of the Policy were read to him. 150 With respect to the rehabilitation plan required by PWCS, Mr Dove confirmed he had not approached Mr Dorsett during July to enquire about his progress with respect to preparing that document. At the request of Mr Johnson Mr Dove said he approached Mr Dorsett during early August to enquire about the status of the rehabilitation plan and he subsequently sent an email to Mr Johnson on 22 August updating what had occurred. 151 With respect to the conversation that took place in early August with Mr Dorsett, Mr Dove stated: My conversation with Mr Dorsett indicated Mr Dorsett did not want to put anything in writing. He knew what the request was. He did not want to put it in writing. He did not see there was a problem. 152 In re-examination, Mr Dove confirmed that the wall mounted breath analyser unit located in the gatehouse was calibrated on a regular basis by a specialist contractor.

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161 Later that afternoon Mr Johnson said he met again with Mr Dorsett, Mr Spence and Mr Dove where he issued Mr Dorsett with a written warning letter setting out the reasons for the warning and the actions required by PWCS to improve his work performance. Mr Johnson said he read the letter to Mr Dorsett and later told him he would need to prove to PWCS that he respected its safety policies and procedures. He said the level of risk within the operations of PWCS presented to Mr Dorsett and other team members when he was under the influence of alcohol or drugs was high. 162 Mr Johnson said he told Mr Dorsett there was a need for him as a peer elected OH&S representative (proxy) for his team to set an example for others to follow in the workplace. He said the issues at hand were serious. However, his work performance record had provided him with an avenue for discretion at this stage of the procedure and process. He said the requirements outlined in the written warning letter were designed to assist Mr Dorsett and not punish him. Mr Johnson deposed that at the end of the meeting Mr Dorsett responded as follows: "I can handle what you've asked of me in the letter and work with Rod to achieve this". 163 Mr Johnson deposed that on 22 August 2007 Mr Dove sent him an email concerning Mr Dorsett's requirement to prepare a rehabilitation plan. The email advised Mr Dorsett had attempted to contact Mr Berry but was unable to do so. Mr Dove stated in the email Mr Dorsett had suggested it was up to Mr Berry to contact him "as they were both busy people". Mr Dove's email also suggested that in regard to Mr Dorsett's rehabilitation plan and his fitness for work issues, Mr Dorsett believed he had covered those matters because he had informed Mr Dove that "it won't happen again". Mr Johnson further deposed that following the receipt of Mr Dove's email of 22 August 2007 he requested Mr Dove arrange a meeting with Mr Dorsett who was then on annual leave until 11 September 2007. 164 Mr Johnson stated that in preparation for this meeting he contacted Ms Kate Jackson, special advisor people resources and requested her to ascertain whether Mr Dorsett had in fact been in contact with Mr Berry. Ms Jackson subsequently advised him that Mr Berry saidS he had not received any message from Mr Dorsett. 165 Mr Johnson deposed he subsequently met with Mr Dorsett and Mr Dove on 11 September 2007 to discuss the obligations placed on Mr Dorsett following the written warning letter issued on 2 July 2007. Mr Johnson deposed he had sought a commitment from Mr Dorsett to attend further drug and alcohol counselling. He said following that request he and Mr Dorsett had a conversation with words to the following effect: Johnson: Brett, by not attending counselling you have demonstrated that you are not seriously dealing with your alcohol issue.

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Johnson: That's an absolute last resort, but as I said if you don't follow through on your actions there may be further consequences. 166 Mr Johnson said he subsequently presented Mr Dorsett with a further letter outlining the requirement for him to attend counselling. The final two paragraphs stated: Brett, frankly, PWCS' patience with you is swiftly running out. You have received a written warning for breaching PWCS' AOD Policy and Procedure which required you to action these items. You have been provided with an opportunity to show that you are dealing with your fitness for work issues but you have failed to do so. If you do not action the items mentioned above in the designated timeframes further disciplinary action will occur. If there is anything that you do not understand about this letter or what is expected of you, please contact either myself or your supervisor to discuss. 167 Mr Johnson deposed that on 19 September 2007, Mr Dove informed him that Mr Dorsett had completed his action plan although he was not keen to supply a copy to PWCS. Accordingly, he subsequently arranged a meeting with Mr Dorsett and Mr Dove later that day to discuss the matter. Mr Johnson deposed Mr Dorsett informed him he had completed the plan. However, when he asked Mr Dorsett for a copy he replied as follows: We've already talked about this. I've done what you've asked, why do you need a copy? 168 Mr Johnson said in reply he informed Mr Dorsett it was important that he put pen to paper, commit to his actions, ensure he followed through and if this was done the issues could be put to rest. Mr Johnson stated that Mr Dorsett supplied a copy of his action plan later that afternoon. 169 On 8 December 2007 Mr Dove contacted him by telephone to advise Mr Dorsett had undertaken a random other drug test and the test had returned a non negative result. He said Mr Dove had informed him that the test sample had been sent for confirmatory laboratory analysis. Mr Johnson stated both he and Mr Dove had expressed their mutual disappointment in response to the test result. Mr Johnson deposed that on 10 December 2007, he met with Mr Dorsett where he had a conversation with words to the following effect: Johnson: You will be suspended from site without pay until we have a meeting. I would like to meet with you on Thursday 13th December 2007. This will allow time for the confirmatory results as I do not want to conduct an investigation prior to having a confirmed result. You need to bring a support person. Dorsett: I understand why the meeting is Thursday. So I have to have a support person? What does that mean? Johnson: By the procedure you would know that this could be a Level 3 breach, this is the level of seriousness we are at, do you still have the copy I provided you? Dorsett: I do but it's in my locker at work. Johnson: If you have any questions you can ring me to discuss. Dorsett: I'll chase it up and have a read. 170 Mr Johnson said later that afternoon Mr Dorsett contacted him concerning the level 3 breach of the Policy. In response Mr Johnson said he informed Mr Dorsett the penalty relating to a level 3 breach included termination of employment and accordingly, given the level of seriousness, instructed Mr Dorsett that he required a support person. Mr Johnson said he further explained to Mr Dorsett he had been suspended in line with the Policy where employees are suspended without pay until a confirmatory result is received by PWCS. Mr Dorsett subsequently replied he would organise Mr Spence to attend as support person. However, Mr Johnson said he thought as an alternative he could ring Mr Outram. Mr Johnson also said that on 12 or 13 December 2007 he telephoned Mr Outram to arrange his attendance at a meeting scheduled for 14 December 2007. 171 Mr Johnson deposed he was subsequently advised Mr Dorsett's laboratory test had returned a positive result for cannabinoids. 172 Mr Johnson deposed he met with Mr Dorsett, Mr Outram, Mr Dove and Ms Jackson on 14 December 2007. During the meeting he provided Mr Dorsett with the following documents: PWCS AOD Policy PWCS AOD Procedure PWCS Disciplinary Procedure A letter dated 14 December 2007 173 Mr Johnson stated that at the commencement of the meeting Mr Dove outlined Mr Dorsett's history with PWCS and his fitness for work plan. Shortly thereafter he informed Mr Dorsett he was one of the best and most valuable operators on his team as a Wharf Foreman and Control Room Operator. He stated it was unfortunate these attributes did not negate the reason for the meeting. 174 Mr Johnson stated he subsequently provided Mr Dorsett with the laboratory drug analysis record and informed him that he was disappointed with his conduct. He said Mr Outram stated the custom and practice was to take each case on its merits and evaluate the circumstances of that case. Mr Johnson said he believed Mr Outram was referring to a previous employee terminated in October 2007. Mr Outram also advised the meeting that the MUA viewed this case differently and would offer Mr Dorsett its support.

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Johnson: True. 185 Mr Johnson confirmed that prior to the meeting on 2 July 2007 he had checked with another PWCS employee to confirm that the wall mounted breathalyser unit located at the gatehouse was in fact a calibrated and authorised unit. He said there was a system in place to ensure the machine was regularly calibrated or checked. However, he could not recall the actual date of when the most recent calibrational check of the machine had taken place. 186 Mr Johnson confirmed that when he met with Mr Carman on 18 December 2007 he gave him copies of correspondence dated 14 December 2007 addressed to Mr Dorsett together with copies of the PWCS AOD Policy and Procedure, Mr Dove's email dated 1 July 2007, Mr Dorsett's warning letter dated 2 July 2007, possibly Mr Dove's email dated 22 August 2007, a copy of a letter dated 11 September 2007 to Mr Dorsett concerning his requirement to attend counselling, Mr Dorsett's rehabilitation plan dated 19 September 2007, the results of Mr Dorsett's urine pathology test dated 11 December 2007, a copy of the PWCS Disciplinary Procedure, a copy of a letter to Mr Dorsett dated 14 December 2007 concerning his third breach of the AOD Policy and Procedure within a twelve month period, a copy of a short letter from Mr Dorsett dated 17 December 2007 concerning his remorse and a copy of a note to Mr Carman from Mr Outram dated on or about 17 December 2007. 187 Mr Johnson said he did not take a prepared or written recommendation to Mr Carman. However, he did state he had verbally recommended to Mr Carman that PWCS needed to consider the possible measures that could be put in place for Mr Dorsett "to either heed what we're going to do for the safety of the place". In response to a line of questioning concerning the safety of both PWCS and Mr Dorsett, Mr Johnson stated his recommendation was that despite his efforts and those of Mr Dove, Mr Dorsett "wasn't either changing his ways or listening or trying to assist us about what we're trying to do". 188 Mr Johnson stated he did not recommend Mr Dorsett should be dismissed but rather recommended that dismissal was a consideration in this matter. Mr Johnson stated that while he had not discussed Mr Dorsett's progress with Mr Berry, he had discussed the Employment Assistance Scheme with Mr Dorsett, with particular reference to the recommendation that Mr Dorsett monitor his consumption of alcohol. 189 Mr Johnson also confirmed that following Mr Dorsett's positive drug test on 8 December 2007, he did not ask Mr Dorsett to attend the Employment Assistance Program in relation to cannabis. He also confirmed he was surprised that when he had read the letter dated 14 December 2007 to Mr Dorsett, with particular reference to the paragraph that contained the sentence "We are now contemplating terminating your employment here at PWCS", Mr Outram had left the meeting with the impression that PWCS was considering options other than termination. 190 There was no re-examination of Mr Johnson.

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191 Statements filed on 18 April 2008 and 30 May 2008 comprised Mr Shaun Sears' written evidence. Mr Sears deposed he commenced his employment with PWCS on 6 April 1999. His current role was manager live run and operational improvement. Prior to this appointment he had held a number of positions including operations superintendent, Kooragang terminal from 6 April 1999 to 5 June 2005. 192 As operations superintendent he was responsible for the day-to-day running of the terminal and led the operations team in the unloading of trains and loading of vessels to maximise throughput with due regard to safety, environment and cost. He deposed that Mr Dorsett was a member of shift 3 at the Kooragang terminal and had reported to him in his capacity as operations superintendent. 193 Mr Sears deposed PWCS decided to introduce an AOD Policy in 2001. He said that in implementing this Policy there was considerable consultation with the Occupational Health and Safety Committees and other employee representative committees such as the Single Bargaining Unit and with employees directly. He said the AOD Policy was part of the broader fitness for work focus by PWCS at the time to ensure a safe workplace. Part of the AOD Policy implementation involved a series of employee briefings conducted during August and September 2001. Mr Sears deposed he personally conducted the employee briefing to all operations teams at the terminal. A powerpoint presentation concerning the Alcohol and Other Drugs employee presentation undertaken during September 2001 was attached to his Statement. In addition to those presentations PWCS had retained Boylan, Simpson & Simpson, Corporate Psychology Service, based in Western Australia to undertake training of employees on the affects of alcohol and other drugs, including short term impairment and long-term affects to health. He deposed the training also focused on managing shiftwork, fatigue, sleep patterns and alcohol and other drug consumption. 194 Mr Sears further stated that prior to the implementation of the AOD Policy and Procedure, PWCS had decided to make available self testing for alcohol in the form of a breathalyser and self test kits for other drugs free of charge to employees at the terminal gatehouse and wharf facility entry points. He further deposed that employees, visitors and contractors were encouraged to use those self test kits or take them home to self manage prior to coming to work. He recalled that Mr Peter Carter, the then principal adviser personnel, had advised him of the high take-up of the kits. 195 Mr Sears deposed that in addition to the Policy briefing undertaken by himself and the work undertaken by Boylan, Simpson and Simpson, the then general manager, Mr David Brewer, had issued a memorandum to all employees outlining the way forward with alcohol and other drugs testing including self test facilities and the safety aspects of working in an alcohol and other drugs free site. A copy of Mr Brewer's memorandum dated 5 October 2001 attached to his Statement said the following: I encourage you to read the Policy and Procedure as they provide the detail of how the Policy is applied at PWCS. The employee briefing sessions were intended to cover the essential information and provide you with an opportunity to clarify what to expect during implementation. These sessions also provided some valuable feedback, which has contributed to improvements in that Policy and Procedure. The final paragraph stated: Alcohol and other drugs are a significant cause of accidents in the community and we need to do everything practically possible to ensure that people who work at PWCS do not risk their own, or the safety of others by working under the influence of alcohol or other drugs. Our aim is to motivate such people to modify their behaviour so that they do not endanger themselves or others.

[134]

201 In a Statement filed on 30 May 2008 Ms Curry deposed that she had been employed by Frontline Diagnostics since 2001 and her current position was Senior Collection Officer. Ms Curry further deposed that she was required to visit client companies and conduct alcohol and drugs screening on site. She visited client companies in a Frontline Winnebago motor home van which had the screening equipment on board. She had undertaken alcohol and drug screening for some four years at both the Kooragang and Carrington terminals. 202 At the Kooragang terminal, the van is always parked in the car park outside the first aid room. Ms Curry said the normal practice was to park the van and set up for the day. She said that when Frontline was required to undertake alcohol testing they would set up in the first aid room and wait for employees scheduled to attend. All drugs screening was undertaken in the van. 203 Ms Curry deposed that Frontline normally received a list of employees required for screening the day before the screening was actually scheduled. She said that normally there would be an employee waiting to commence testing or screening. However in the event there was no one waiting, she would telephone the "contact supervisor" as instructed by PWCS Following the completion of testing and screening Frontline staff complete a summary of testing and PWCS' initial drug test record or initial breath test record sheets as required. 204 Ms Curry further deposed that where an employee was unable to provide the required sample within the allocated testing time they would be directed to the amenities room to have a cup of tea or cold drink. Staff would then advise the contact person of this situation so that they would be able to monitor the employee and have them return to the van once they are able provide a sample. Where an employee has not returned to the van during the allocated time Frontline staff confer with the contact person. 205 Where the employee fails to attend the testing van, Frontline staff class them as a "no show". Ms Curry said "no shows" also include employees who do not attend the van or first aid room at their allocated time because they are either sick, on annual leave or because they are on the ship loader and are unable to be brought back to the van. In such cases, Frontline staff attempt to contact the contact person to chase these employees. However, if they do not attend the required test, staff simply write "no show" on the paperwork. If Frontline staff are unable to contact the nominated contact person and all other scheduled testing or screening has been completed they hand the test paperwork in a sealed envelope to the security guard at the gatehouse marked to the attention of Mr Paul Chapman, PWCS Specialist Adviser OHS and leave the site. 206 Ms Curry said she had read Mr Dorsett's first Statement where he deposed that between March 2004 and June 2007 that he had been randomly tested for other drugs approximately four times each year and for alcohol approximately two to three times per year and had always tested negative. Ms Curry referred to the Frontline summary of testing records for the period that had been given to PWCS and made the following comments: 17 February 2005 - Mr Dorsett was tested for alcohol and other drugs and tested negative. 15 September 2005 - Mr Dorsett was to be tested for other drugs and the record shows " not here ". 17 November 2005 - Mr Dorsett was tested for other drugs but was unable to provide a sample. The records show that " No sample . Will provide at gatehouse ". There is a further notation " spoke with Rod Dove about Brett Dorsett ". 2 December 2005 - Mr Dorsett was listed for other drugs test. However the records indicate quote " no show ".

[137]

211 Statements filed on 30 March and 18 April 2008 comprised Mr Berry's written evidence. In his first Statement, Mr Berry deposed that he was an Industrial Chaplain and had been employed by Converge International, formerly known as ITIM Australia since January 1988. He has been the workplace counsellor at PWCS for some four years. Mr Berry deposed that he had been provided a copy of Mr Dorsett's Statement filed on 20 February 2008 where he stated that during the week commencing 2 July 2007 he had contacted Mr Berry to arrange a meeting. Mr Berry deposed that it was his recollection that Mr Dorsett had telephoned him twice before they met formally. He also referred to Mr Dorsett's evidence that during the week commencing 9 July 2007, he again telephoned Mr Berry who told him at the time that he was driving to Sydney and asked him to ring back at another time to arrange a meeting. With respect to that evidence Mr Berry believed it was out of sequence as it was his recollection that he was driving to Sydney when Mr Dorsett made his first contact during the week commencing 2 July 2007. In that regard he recalled saying words to the effect of: Let me pull off the road so I can make an appointment or would you like to phone me another time to arrange a meeting. 212 Mr Berry further deposed he had met with Mr Dorsett on two occasions and not the four claimed by Mr Dorsett in his evidence. He recalled providing Mr Dorsett with the principles on how best to reduce alcohol consumption and manage drinking patterns. He said Mr Dorsett had informed him that the principles were useful and provided a healthy guideline to him. Mr Berry further deposed that when he first met Mr Dorsett he had followed that meeting up with a phone call approximately one or two days later and in October 2007 he met with Mr Dorsett in his office at PWCS to review the situation. 213 In his Statement filed on 18 April 2008 Mr Berry said that he had been provided with a copy of Mr Dorsett's Statement in reply filed on 3 April 2008 and stood by his earlier evidence regarding the sequence of meetings. Mr Berry further claimed that he had spoken to Mr Dorsett prior to his employment being terminated by PWCS but had no recollection of meeting with Mr Dorsett at his home on or about 21 December 2007 and to support that position he had checked his diaries and telephone records. 214 In cross examination, Mr Berry stated that he was on site between June and August 2007 at least one day per week and during most weeks he would have been on site for two days. PWCS provided him with the use of an office and he handled all administrative arrangements himself. Employees would normally contact him by mobile phone or by email. He confirmed that in preparing his Statement he had checked both his diary and his mobile phone records. It was also his evidence that he had received no emails from Mr Dorsett nor anyone else from PWCS. 215 With respect to Mr Dorsett's claim that Mr Berry had met with him at his home in December 2007, Mr Berry said he did not deny that a meeting occurred, but stated he had no recollection or notation about it in his diary. When shown an Optus phone record, he agreed that there had been two phone calls from Mr Dorsett to his mobile phone on 21 December 2007. However, he had no recollection of those calls. He also agreed he had that mobile phone number through August and September 2007 and it appeared some phone calls had also been made on 1 August and 17 September 2007. 216 When asked about his role under the AOD Policy and Procedure, Mr Berry said that part of his role is "also to pursue with people what's happening with their habits, their alcohol or other drug usage, and to actually help them find a way through all of that". He said while he had nothing in writing setting out his responsibilities in relation to the PWCS Employee Assistance Program, he had received instructions about his role with the AOD Policy and Procedure. He said it was a matter of Mr Carman simply talking through it along the lines of: This is the policy, we are going to refer people to you. We would like you to actually work through with them. If further referrals are needed, then that's possible, but you also have some training in that area as well and we would encourage you to work through with it. If there is something that you need then come back to us and we'll sort that through. 217 He said from his discussion with Mr Dorsett it was his view he was dealing with his alcohol use and the drug and alcohol tests. Mr Dorsett had mentioned the issues concerning his brother as background. Mr Wayne Carman

[138]

218 Statements filed on 13 March and 30 May 2008 comprised Mr Carman's written evidence. Mr Carman deposed that he had been an employee of PWCS since 9 March 1998 and his role since December 2005 was manager Kooragang terminal. 219 Mr Carman said a feature of the PWCS Kooragang terminal was that employees work in close proximity to trains, large items of plant and machinery, fast moving conveyors and the company cannot afford the risk of having any employees on the site who are under, or potentially under, the influence of alcohol or other drugs. Mr Carman said the AOD Policy was implemented in 2001 in full collaboration with all site Unions and was a vital part of PWCS' Occupational, Health and Safety Program to ensure the safety of all persons on site. He said over the past few years significant improvements had been made to safety on site and management systems had been introduced setting out the standards and processes to be followed to maintain a safe workplace. 220 Mr Carman said Mr Dorsett reported to Mr Dove, shift supervisor and Mr Dove reported to Mr Johnson, operations superintendent who in turn reported to himself. He said he was aware that Mr Dorsett was the subject of a written warning concerning two AOD breaches in approximately July 2007. 221 Mr Carman deposed that on 8 December 2007 he received a telephone call from Mr Johnson who advised him Mr Dorsett had provided a non-negative result from a random drug test and the sample had been sent for confirmatory analysis. Mr Johnson said this breach was potentially Mr Dorsett's third in a 12 month period. On 13 December 2007, Mr Johnson advised Mr Carman that Mr Dorsett's non-negative results had been confirmed as a positive result for cannabinoids and Mr Dove, Ms Jackson and himself proposed to meet with Mr Dorsett on 14 December in relation to his third breach of the AOD Policy and Procedure. 222 Mr Carman stated that on 17 December 2007 Ms Jackson provided him with a copy of Mr Dorsett's written response to the issues raised in a letter provided to him on 14 December 2007. A copy of Mr Dorsett's response and a letter from Mr Outram were annexed to his Statement. 223 Mr Carman subsequently reviewed Mr Dorsett's entire personnel file and on 18 December, he met with Mr Johnson, Ms Jackson and Mr Mark Golding, human resources manager to discuss the responses of Mr Dorsett and Mr Outram. He said the meeting discussed Mr Dorsett's history, work performance and disciplinary options, having regard to the seriousness of the matter and a comparison with other disciplinary matters dealt with by PWCS in the recent past. On that day, Mr Carman also met with Mr Graham Davidson and Ms Jackson to further discuss Mr Dorsett's recent AOD Policy breach where his work history and performance, prior Policy breaches and the written responses of Mr Dorsett and Mr Outram were canvassed. 224 Mr Carman said on 18 December 2007 at 3.00pm he met with Messrs Dorsett, Outram and Johnson and Ms Jackson and advised Mr Dorsett of the seriousness of the situation. He told him PWCS was contemplating termination of his employment. He reviewed the letter provided to Mr Dorsett on 14 December and had a discussion with him in words to the following effect: Carman: Do you have any issues with or dispute the content of the letter dated 14 December 2007?

[160]

241 Mr Carman reiterated that when he terminated Mr Dorsett he had no confidence he was going to seek and undertake further drug and alcohol testing. Mr Dorsett had let PWCS down on four occasions - one in 2004 and three in 2007. Mr Carman stressed it was critical employees present themselves in a fit state for work and the fact that Mr Dorsett had presented himself for work at 0.48 percent BAC and an hour later at 0.22 percent BAC did not enable PWCS to inject a degree of discretion with respect to the Policy limit of .02 percent BAC. He confirmed counselling was available to all employees with respect to alcohol and drugs. 242 In re-examination, Mr Carman confirmed employees were able to self test for alcohol by using a breathalyser located at the main gatehouse. He also explained PWCS supplied self test kits for employees to test for drugs at home. Mr Carman confirmed the breathalyser was calibrated monthly in accordance with the Australian Standard. 243 On 2 July 2008 Mr Warren recalled Mr Carman for further re-examination related to questions put to Mr Carman by Mr Slevin on 1 July 2008 with respect to the possibility of Mr Dorsett being either reinstated or re-employed on a condition of regular testing under the AOD Policy regime. Mr Carman stated that it cost $270 per hour to have a Frontline testing van attend the Kooragang site and each drug test cost approximately $40. There were no consumable costs for the alcohol tests conducted by Frontline. 244 Mr Carman stated in the event PWCS decided to undertake drug and alcohol testing through internal means, there would be no cost for breathalyser testing and the cost for each drug test kit was approximately $30. However, an employee would be required to be supervised for up to 15 or 20 minutes and to do that at the start of shift would be difficult as it is a critical time for supervisors who are required to brief staff and contractors to ensure crews commence work efficiently. Simply put, he agreed a supervisor would have to leave his or her post to go to the gatehouse for some 15 to 20 minutes to supervise the employee undertaking the relevant test. This requirement could also impact upon efficient changeover of shift where at hand over, the previous shift supervisor briefs the new shift supervisor about the work activity required and any relevant safety issues. 245 In further cross examination by Mr Slevin, Mr Carman stated he had not determined the costs that would be incurred if Mr Dorsett undertook regular testing at a laboratory off site or similar service. Mr Carman stated while it would be possible for Mr Dorsett to undertake a self test and subsequently present the results to his supervisor without the need for the supervisor to accompany him to the gatehouse to take the test, he said this was something he would not allow because he would want to ensure that the test was valid. He later explained all testing at the gatehouse was actually carried out by one of the trained security officers in the presence of the supervisor. 246 Mr Carman also stated the purpose of testing so far as PWCS was concerned was to test for influence and not for impairment. Mr Carman maintained his position that in the event Mr Dorsett returned to work he would be required to undertake daily testing to ensure he was fit for work. In that regard Mr Carman stated: It comes down to a confidence issue. I don't have the trust and confidence in him now, and I would want to do it daily at least. So, you know, that's - the issue for me is that Mr Dorsett said that in the date - though in the meeting of the 18th, I think it was, when I interviewed him and went through that process, he said it was a timing issue, he got the timing wrong. Well, I'm very nervous about timing issues, very poor judgement. 247 Mr Carman reiterated that when PWCS tested employees for drugs or alcohol there was a cut-off level and if the test result exceeded that level, the test result was a positive one. Mr Gary Herrett

[161]

248 In a Statement filed on 1 July 2008, Mr Herrett deposed that he was an employee of PWCS between 16 January 1961 and 31 December 2007 and his last role was shift supervisor. 249 Mr Herrett deposed that he had been provided with the Statement of Mr Dorsett filed on 26 May 2008. Mr Herrett referred specifically to the evidence of Mr Dorsett who had stated that around mid 2006 when working on day shift Mr Herrett told him he was required to do an alcohol and other drug test that shift. Specifically, Mr Dorsett stated that some two hours after being informed of the requirement to undertake the drug test, he received a telephone call from home and had to return to deal with a domestic issue. He said he had informed Mr Herrett he had to go home and Mr Herrett agreed it was all right for him to do so. As a result Mr Dorsett had stated that he was not tested and was not required to be tested again when he returned to work the next day. According to Mr Dorsett, this scenario of events was not considered by PWCS to be a refusal to test. 250 Mr Herrett deposed that during his term as a supervisor he could not recall any occasion where Mr Dorsett wanted to go home on pre-notification of an alcohol and other drug test. Mr Herrett further deposed if Mr Dorsett had gone home he would have sought the operations superintendent's advice so as to ensure that he dealt with this matter properly and in accordance with the AOD Policy. However he did recall that on at least one occasion during 2005, Mr Dorsett had sought to return home at short notice to attend to some serious domestic problems. Mr Herrett said he allowed Mr Dorsett to return home as he believed the issue at hand was a very personal issue. He said he was certain that the day in question was not linked to any pre-notification of an alcohol and other drugs test. 251 With respect to the AOD Policy, Mr Herrett stated that as a supervisor he had been involved in a number of disciplinary matters related to the use of alcohol and other drugs and knew that a refusal was a serious matter. Mr Herrett also stated PWCS had promoted the availability of self testing kits for a long time and in his view it was beyond his imagination Mr Dorsett would not have known about their availability. 252 In cross examination, Mr Herrett was shown a copy of Mr Dorsett's Statement filed on 26 May 2008 and in relation to that Statement he admitted he had not been shown this Statement as alleged in his written evidence. In that regard he said that the document that he was shown may well have been a summary of the evidence Mr Dorsett had given in these proceedings. 253 With respect to his recollection Mr Dorsett had returned home at short notice during 2005 and that day was not a day when drug testing was scheduled, Mr Herrott stated he had not perused or searched any documents to support this contention and simply relied upon the recollection of his memory. He further stated it would have been highly unusual for an employee to seek permission to go home after prior notification of a drug or alcohol test.

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262 In a Statement filed on 30 May 2008 Mr White deposed he had been employed at PWCS since January 1984 and his current role was shift supervisor at the Kooragang terminal. Mr White stated that he had been provided with a copy of Mr Jolly's Statement filed on 26 May 2008. He further deposed that in relation to the 18 January 2007 alcohol and other drugs test, his name was noted on the PWCS initial drug test record as the superintendent for Mr Jolly and Mr Siever was noted as Mr Jolly's immediate supervisor. With respect to that evidence, he deposed he had no recollection Mr Jolly was sick on 18 January 2007 and further, he had no recollection that he was sick until 27 May 2008 when he was provided with Mr Jolly's Statement. He also had no recollection Mr Jolly was scheduled for a drug test or that he did not attend the required test. Shortly stated, it was his evidence that in the event Mr Siever had approached him to advise that Mr Jolly was ill and had sought to go home, he would not have allowed him to go home until he had completed the scheduled test. 263 Further, in the event Mr Siever had approached him after he allowed Mr Jolly to go home before taking the required test, he deposed he would have been concerned about the actions of both Mr Siever and Mr Jolly. In that regard, he said he would have been concerned Mr Jolly was trying to avoid the test for some reason. With regard to Mr Siever's conduct, he would have been concerned about his actions because it was an issue that he should have taken advice about before allowing Mr Jolly to go home. He would also have been concerned about Mr Siever's apparent lack of awareness concerning the possibility that Mr Jolly may have been trying to avoid the test. 264 Mr White also deposed that he had no recollection of Mr Siever contacting him regarding the matter and if he had been made aware that Mr Jolly had avoided the test by going home sick, he would have investigated the matter and sought the advice of the Kooragang terminal manager as he believed the issue was a serious one.

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268 Mr Slevin submitted that in cases where misconduct had led to dismissal it was also well established that the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 be applied. In that regard, he stated the proper application of that principle in termination of employment cases was discussed in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 where the Full Bench said: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has been long established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ...

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270 It was the Union's contention that in dismissing Mr Dorsett, PWCS had relied upon its AOD Policy and Procedure. In that regard, Mr Slevin referred to a number of recent Full Bench decisions where the Commission had considered the application of drug and alcohol policies in the workplace: Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No. 2), Re [2006] NSWIRComm 328 ('Transport Industry case') ; Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 ('BHP Steel case') and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services (2006) 153 IR 125 ('Corrective Services case'). He submitted that in each of these decisions the Full Bench had referred to the decision of the Full Bench of the Western Australian Industrial Relations Commission in BHP Iron Ore Pty Limited v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 where at 168 the Full Bench said: ... As ... the union so ably argued, there can be no doubt that the programme involves an intrusion into the privacy of individual employees. However, the current standards and expectations of the community concerning health and safety in the workplace, as evidenced by legislative prescriptions and judgements of courts and industrial tribunals, are such that there will, of necessity be some constraints on the civil liberties at times and, in particular, an intrusion into the privacy of employees... 271 Mr Slevin stated the Commission should be mindful of these principles when determining this matter. PWCS was permitted to test its employees under its AOD Policies and Procedures. However, in conducting those tests and taking action where necessary, PWCS was "duty bound to comply with them". 272 Mr Slevin referred to the Transport Industry case at [215] where the Full Bench noted the Transport Workers' Union had proposed that all transport operators be required to develop and implement a Drug and Alcohol Policy designed to ensure: (iii) Alcohol and/or drug problems arising from recreational use should be dealt with as health problems, with an emphasis on education and rehabilitation.

[202]

Positive Result - A refusal to undertake a test as per the PWCS Alcohol & Other Drugs Policy and Procedure. 290 Mr Slevin stated Mr Dorsett arrived at work for night shift at 6.00pm on 26 June 2007. He became ill at about 7.00pm and decided that he was too sick to continue his shift. Unaware that drug and alcohol testing was occurring on the site, he went to the crib room and rang his supervisor, Mr Dove to tell him that he was leaving site sick. Mr Dove told Mr Dorsett to remain in the crib room and he would meet him there. Mr Dorsett conformed and when Mr Dove entered the crib room there was a conversation. It was uncontested that during that conversation Mr Dove told Mr Dorsett that he had come up for a random test. Mr Dorsett asked what kind of test and as Mr Dove did not know, Mr Dorsett said that he did not see the purpose of the test as he was going home sick. 291 Mr Slevin also contended there was a conflict in the evidence about what else was said during the conversation between Mr Dove and Mr Dorsett. For his part, Mr Dove's evidence was that he told Mr Dorsett that leaving site would be regarded as a positive result under the AOD Policy. Mr Dorsett denied Mr Dove made that statement. Mr Dorsett also denied Mr Dove's evidence he told him he had recently smoked marijuana and would not pass a drug test. Mr Dove stated he told Mr Johnson who subsequently said there was an arrangement between Mr Dove and himself to keep the matter confidential. 292 However, in dismissing Mr Dorsett, PWCS did not rely upon this alleged conversation and it was Mr Slevin's submission that the allegation was never put to Mr Dorsett. Accordingly the Commission only has Mr Dove's word against Mr Dorsett's as to what was said in the conversation. Resolving the conflict as to what was said involves an assessment of the credibility of the evidence of both witnesses. In resolving such conflicts, Mr Slevin submitted the Commission should have regard to the observation of the High Court in Fox v Percy (2003) 214 CLR 118 where at 128-129 Gleeson CJ, Gummow and Kirby JJ stated: [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances[49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.

[225]

318 Mr Slevin referred to Natoli's case where Sams DP stated at 225: The allegations against the applicant were described as misconduct - the additional adjectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship. 319 Mr Slevin referred to the decision in North v Television Corporation Limited (1976) 11 ALR 599 where Smithers and Evatt JJ, set out their conclusions "on the kind of conduct that would justify dismissal at common law" at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. ... For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions. 320 Applying the reasoning of the judgement of Smithers and Evatt JJ in North v Television Corporation Limited and Sams DP in Natoli's case, Mr Slevin submitted Mr Dorsett's conduct in March 2004, June/July 2007 and December 2007 could not be said to constitute a fundamental and wilful repudiation of the contract of employment.

[229]

325 Mr Slevin observed it was trite to say reinstatement was the primary remedy, see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94] Plummer v Stannard Bros Launch Service (2005) 145 IR 111 (at 115); and Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105] to [110]. 326 Mr Slevin submitted the reference in the termination letter that PWCS had "lost trust and confidence in Mr Dorsett in the future" was an overreaction disproportionate to Mr Dorsett's circumstances. In that regard, he referred to Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, where the Full Court of the Industrial Court of Australia said: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. 327 The reasoning of the Court in Perkins v Grace Worldwide (Aust) Pty Ltd had been acknowledged by Full Benches of this Commission, including Hollingsworth v Commissioner of Police No 2(1999) 88 IR 282 at 342 Oswald v New South Wales Police Service (1999) 90 IR 42 at 68 and Little v Commissioner of Police No 2 (2002) 112 IR 212 at [91]. Mr Slevin also referred to the decision of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody.

[236]

333 Mr Warren stressed the use of the word "ensure" throughout s 8 did not mean "try hard". Rather, it meant "to the extent possible to have the particular workplace safe to the extent possible". An employer was obliged to ensure that what they were currently doing at work was safe. They were also obliged to seek out and remedy any potential risks. In that regard, Mr Warren referred to the decision in WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306 where Boland J stated: 47 Moreover, the obligation on an employer to ensure the health and safety of persons at work is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210; Shannon v Comal co at 364. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. 334 Mr Warren also referred to the Full Bench decision in Narayan v Inspector Chamings (2007) 169 IR 414 at 425: 46 In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 the Full Bench at [43] quoted with approval the observations of Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 47 The conduct of the appellants could not, in any way, be described as proactive; they knew the log-splitting machine presented a risk to the safety of the operator but did nothing to modify, or attempt to modify, the machine in order to ameliorate the risk.

[237]

335 Mr Warren identified the importance of paragraph [47] above and drew the parallel that if PWCS knew that a particular employee was or had been attending for work with a blood alcohol or other drugs content in his/her blood and did nothing about it, they would clearly be open to criticism and prosecution under s 8 of the Occupational Health and Safety Act. Additionally, if PWCS knew there was a risk that the employee might turn up under the influence of alcohol or other drugs, they would be obliged to do something about it or face prosecution. Accordingly, it was against this backdrop that the PWCS AOD Policy and Procedure was introduced in 2001 amidst full consultation and cooperation from site Unions. Pursuant to that Policy, it was essential that PWCS did everything required to prevent persons coming onto site who might be a risk to themselves or a risk to other persons, whether they were employees or contractors. 336 Mr Warren said that Mr Outram in evidence had candidly and properly recognised there were a number of machines of significant size which operated at the Kooragang terminal reclaiming and stacking coal. A range of conveyor belts rapidly transported coal across the site. There were also large and complex ship loading facilities which required persons to work on ship decks and wharf areas in all weathers 24 hours a day. He also said the site was potentially a very dangerous place and PWCS was charged under the Occupational Health and Safety Act to ensure the safety at work of all employees. 337 Mr Warren referred to Mr Davidson's Statement where in discussing the "state of mind" of PWCS and its "considerations" prior to taking the decision to terminate Mr Dorsett's employment, he said: Following the review we discussed what was the appropriate penalty in respect of the three 2007 breaches. All parties were concerned about the matter and the loss of trust and confidence in Mr Dorsett's ability to comply with our OHS standards of which our A&OD Policy is a critical element. In addition to considering the need to protect Mr Dorsett in the workplace, we also looked at our obligations to co employees, the business and our customers. 338 Mr Warren submitted PWCS was well aware of its responsibilities under the Occupational Health and Safety Act and did everything required to ensure the safety at work of its employees and contractors. The AOD Policy was an integral part of the procedures put in place by PWCS to ensure such safety. 339 Mr Warren observed the Commission must decide this matter by assessing the competing evidence and make an assessment as to credibility. He contended that assessment weighed heavily against Mr Dorsett on some critical issues and where there was a conflict of evidence, the evidence of Mr Dorsett relevant to the conflict "in many cases simply cannot be believed". He submitted that against the backdrop of the High Court judgment in Fox v Percy, the evidence and material of PWCS should be preferred "on the basis of contemporary materials, objectively established facts and the apparent logic of events." 340 Mr Warren referred to the submissions of Mr Slevin concerning the frankness of Mr Dorsett's evidence and submitted consistent with Fox v Percy: ... you don't just look at the way the evidence was delivered, but ... the context in which it was and whether it logically flows.

[242]

Dorsett: Well, I'll discuss that when I get back. 343 With respect to Mr Dorsett's alleged illness, Mr Warren contended if an employee was incapable of walking or was in serious trouble physically, a conclusion could be drawn that "well he's sick and he's going home". However, in this case Mr Dorsett, apparently standing upright, was required to walk past the test van on his way from the crib shed to his car "whilst he's so sick" and asks Mr Dove, "What sort of test?" 344 Mr Warren said when the apparent logic of events was considered, the evidence of Mr Dove was that Mr Dorsett's enquiry, "What sort of test?" followed his direction to Mr Dorsett that he was required to undergo the scheduled test before he left site. With respect to Mr Dove's caution that "by not doing a test it will be classed as a positive result" and Mr Dorsett's admission shortly thereafter that he "wouldn't pass a test. I've had a smoke", Mr Warren contended Mr Dorsett's response was: entirely consistent with a person making up an excuse of sickness, being concerned that he knows he's had a smoke, that is, cannabis, he wants to know what sort of test it is. If it was an alcohol test, he probably would have gone and done it, and then gone home. 345 It was Mr Warren's submission, consistent with Fox v Percy when "the apparent logic of events" test is considered why did Mr Dorsett ask what sort of test was to be conducted? He contended that Mr Dorsett had asked Mr Dove about the type of test because he knew that he would pass one test, but not the other and logically, when Mr Dove replied that he did not know the test scheduled, Mr Dorsett simply replied, "Well I'm going home sick ...". Mr Warren submitted the Commission should question seriously why an employee who is too sick to do anything but to go home would enquire what sort of test was proposed. In such circumstances it was reasonable to conclude that Mr Dorsett enquired because he knew he would only pass one of the tests. The logic of events in this matter "is a telling consideration when looking at the competing evidence".

[245]

349 Mr Warren noted that in cross examination, Mr Dorsett agreed that the shop where he purchased the crib was, at most, five minutes away. It was put to him that five minutes there and back and five minutes in the shop was a total of only 15 minutes. He said if 30 minutes at the extreme was allowed Mr Dorsett should have returned to site by 9.00am. The van did not leave the site until 10.45am. That potential scenario was not seriously challenged by Mr Dorsett who simply had no real answer to make in cross examination. He also agreed that permission of a supervisor was required to leave the site. He did not seek permission, yet he accepted that it was usual practice to ask for such permission. 350 With respect to the so-called second scheduled test occasion in mid-2006 where Mr Dorsett alleged that as Mr Herrett had given him permission to return home to attend to some domestic matters he was not required to be tested the following day or at some later stage, Mr Warren drew the Commission's attention to Mr Herrett's evidence that he could not recall any occasion where Mr Dorsett wanted to go home having "first been pre-allocated or pre-advised of the need to do a test". He did recall that on at least one occasion during 2005 Mr Dorsett wanted to return home at short notice and he agreed to the request. Referring to the conflict in evidence of Mr Dorsett and Mr Herrett, Mr Warren referred to Mr Herrett's evidence concerning the AOD Policy and the implications of refusing to undertake a test: As a supervisor I was involved in a number of disciplinary matters relating to Alcohol and Other Drug Policy and positive testing, so I knew the refusal was a serious matter. He also referred to Mr Sears' account of a conversation with Mr Dorsett in late 2003 early 2004 where he alleged Mr Dorsett came to him and said: Look, you know I'm going to go away on a golfing holiday and we're going to get on it. Mr Warren also noted that whilst Mr Dorsett said "No, I didn't say we were going to get on it" , he did depose: I was going on a golfing trip on a bus with 40 others and knew there would be alcohol and marijuana consumed on the bus both up and back.

[268]

377 With respect to the AOD Policy requirements under the First Positive Result heading that the Leader first discuss the result with the employee and advise the employee about the counselling services available and if necessary refer them to an appropriate service, Mr Warren submitted: ... as my friend says in his submissions, that employee "Z" as described by Mr Dove clearly went through that process, but with Mr Dorsett, as a result of Mr Dorsett's actions on the Saturday night, what we say clearly drinking to excess, accelerated the process down the road a little bit. Indeed, quite significantly, and when he turned up at the gate, he had two options: he could have self-tested at the gate, and he could have discovered or otherwise what his alcohol content was (or) he could have turned around and gone home and there would have been no effect adversely to him under the Policy. He chose not to do that. He could have, indeed, had some self-testing kits at home, but he (did) not do that. He chose to come to work knowing that he was going to be tested for alcohol. He had a big advantage at this stage. 378 Under the heading of Second Positive Result, a positive result is regarded as a second positive result if it occurs within 12 months of the first positive result being recorded and is managed as if it was a first positive result. Mr Warren contended that while there might well be some policy imperfections and a degree of ambiguity in the words used, as submitted by Mr Slevin, the definition of a second positive result is crystal clear and this position was put in the warning letter dated 2 July 2007 and accepted by Mr Dorsett and his Union. 379 Mr Warren referred to Mr Herrett's evidence that following Mr Dorsett's positive drug test in 2004, he was interviewed and offered self testing kits. In that regard, he recalled Mr Dorsett had made a comment about the possible discrepancy between self test kits and those used to carry out the initial tests. Accordingly, he concluded that Mr Dorsett was aware that self testing kits were available. 380 Mr Warren also referred to Mr Johnson's letter dated 11 September 2007 where he warned that PWCS' patience with Mr Dorsett was running out: Brett, frankly, PWCS' patience with you is swiftly running out. You've received a written warning for breaching PWCS' A&OD Policy and Procedure which required you to action these items. You have been provided with an opportunity to show that you are dealing with your fitness for work issues, but you failed to do so. 381 The 14 December 2007 letter that followed Mr Dorsett's earlier non negative drug test stated in part: ... PWCS is now contemplating terminating your employment ... Frankly, PWCS cannot see how it can have trust and confidence that you will turn up to work in a fit state to safely perform your duties ... In the meantime would you please supply me with a letter setting out the following: (b) Any valid reason for the latest results showing a positive result for cannabinoids;

[272]

387 With reference to the principles enunciated in Natoli, Mr Warren submitted the questions which arose in cases of summary dismissal for misconduct and identified by Sams DP could be readily answered as follows: Firstly, was the conduct alleged against the dismissed employee proven? It's proven to the requisite standard: balance of probabilities. We say it clearly passes that test. Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? It was not summary dismissal in the classic sense; it was dismissal of an employee being paid in lieu of notice. Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? ... the third test, therefore, fails to be relevant ... However, we say even if you find that that test is to be considered, we say it was clearly wilful and it was clearly fundamental. By his own admission he knowingly and willingly and wilfully smoked that joint, and clearly he knew the consequences of being caught again. Fourthly, were mitigating factors taken into account? Mr Dorsett in the final interview on 18 December came up with a number of ... reasons for his actions. None of those reasons stated were new reasons ... he didn't say, "Look, I've embarked on a course of drug and alcohol rehabilitation". He didn't say that at all. In fact, that was left until after he was terminated to then come and say "I'm now going to go and do this course". 388 With reference to the BHP Steel case Mr Warren highlighted the observation of Walton J, Vice President in Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 at 182 referred to by the Full Bench at paragraph 15: In a context in which both parties accept the need to regulate drug and alcohol use and there are issues concerning safety at the workplace, the benefits which will derive from obtaining a common approach to any drug and alcohol programme can not be overstated.

[283]

408 PWCS is required to provide a safe place and system of work. It asserts Mr Dorsett was dismissed on the grounds it had lost the trust and confidence that he would turn up to work in a fit state to safely perform his duties. He was paid an amount of salary in lieu of notice. The Union's dispute notification conveniently summarised the issues in dispute as follows: The MUA and PWCS are presently in dispute concerning the purported termination of an MUA member and PWCS employee, Mr Brett Dorsett, for allegedly breaching PWCS Policy, Procedures and OH&S Requirements. PWCS further allege that they no longer retain trust and confidence in Mr Dorsett as an employee. They have purported to terminate his employment effective 18 December 2007 and have indicated an intention to make payment of salary in lieu of notice. 409 For its part the Union argued in these proceedings that Mr Dorsett was dismissed for misconduct under the PWCS AOD Policy and Procedure. He was also dismissed summarily in the sense that he was not permitted to work again after testing positive for other drugs on 8 December 2007. 410 Notwithstanding the fact that the AOD Policy and Procedure may not have been strictly applied as alleged by the Union, it was PWCS' case that Mr Dorsett's cumulative conduct in relation to three incidents between June and December 2007 supported the proposition his dismissal by payment in lieu of notice was lawful. Shortly put, PWCS contended Mr Dorsett's conduct and the risk that he would attend for duty in an unfit state placing himself, others and PWCS' plant and heavy machinery at risk, warranted his dismissal. 411 The relevant industrial instrument is the PWCS Limited Enterprise Agreement 2007. Clause 11 relevantly provides that termination can be effected by notice to the employee or by payment in lieu of notice. In addition PWCS has the right to dismiss an employee for refusal of duty or serious and wilful misconduct. 412 Immediately prior to his dismissal, Mr Dorsett was engaged as an Operator Level 2 and was also qualified to work as a Control Room Operator and a Wharf Foreman. He was also a member of the PWCS Occupational Health and Safety Committee.

[285]

414 In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, a negligence case concerning damages following a workplace injury, the majority decision (Mason, Wilson and Dawson JJ) at [15] held an employer had a duty to employees to take reasonable care to provide a safe system of work to avoid exposing them to unnecessary risks of injury. The Court found that the risk of injury was foreseeable and the question remained as to whether the employer took reasonable care to minimise that risk, despite an instruction to the employee concerning the safe method of carrying out the work. 415 Section 8 of the Occupational Health & Safety Act 2000 imposes a non-delegable duty on employers to "ensure the health, safety and welfare at work of all employees of the employer". A breach of that duty is a criminal offence. In WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85, the observations of Hill J are indicative of the breadth of duty imposed on employers: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. (emphasis added) 416 Mr Warren submitted that PWCS had an obligation to be proactive in seeking out risks to safety and taking appropriate measures to obviate those risks. While this requirement has undoubted relevance in the context of an occupational health and safety prosecution, its application does not derogate from the imperative that, at all times, PWCS must have a safe system of work in place for all of its operations and be proactive in identifying and taking measures to minimise or eliminate risks to safety. In support of PWCS' commitment to safety, high priority is given to the creation of a safe working environment through the elimination of the hazards associated with inappropriate alcohol and other drug consumption. In that regard, PWCS provides a range of preventative, educational and rehabilitative measures to overcome problems that could impair an individual's safety and performance at work. On balance, those employees who are deemed unfit for work as a result of alcohol or drug use are managed in a fair constructive manner. 417 PWCS is firmly of the view that an effective AOD Policy is essential to maintaining safety within the confines of its Carrington and Kooragang terminal operations, given the risks to safety posed by heavy plant and equipment. In this case, the evidence before the Commission established that the position adopted by PWCS was motivated by the concern to maximise safety of employees, plant and equipment and comply with its statutory duties in relation to safety. 418 The Occupational Health and Safety Act imposes stringent requirements and obligations in a number of different capacities in order to secure and promote the health, safety and welfare of people at work. The objects of the Act set out in s 3 include the following: (a) to secure and promote the health, safety and welfare of people at work,

[288]

e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, … 419 The various duties upon employers are set out under s 8 of the Act: Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 420 Section 8 imposes an absolute liability on employers who "must ensure" the health, safety and welfare of employees at work is consistent with the Objects set out in s 3. The plain and ordinary meaning of the word "ensure" is to guarantee or make certain: Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 449. Section 20 of the Act also imposes obligations on employees whilst at work: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person.

[316]

461 Notwithstanding the impediments concerning the application of the AOD Policy and Procedure, Mr Dorsett has breached his obligation not to attend for work under the influence of alcohol or other drugs. It is clear on the evidence that Mr Dorsett's conduct between June and December 2007 struck at the heart of the employment relationship and that conduct was totally inconsistent with his common law duty of trust and confidence. That duty implies mutual obligation. The observations of Dixon and McTiernan JJ in Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 81-82 are relevant to that consideration: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ( Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch. D. 339, at pp. 357-8 and 362-4; English and Australian Copper Co. v. Johnson (1911) 13 CLR 490 ; Shepherd v. Felt and Textiles of Australia Ltd (1931) 45 CLR 359). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 462 At common law an employer has a duty to prevent accidents in the workplace. In McLean v Tedman (1984) 155 CLR 306 at 313 Mason, Wilson, Brennan and Dawson JJ affirmed that duty: The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming, The Law of Torts (6th ed. 1983), pp.480-481). And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands. 463 In my view, it logically follows that the obligation upon PWCS to provide and maintain a safe system of work and prevent accidents affords it the right to dismiss an employee who has repeatedly or deliberately or seriously breached a policy established with the support of all site Unions to ensure a safe system of work. The capacity for Mr Dorsett to leave site without permission as he did on three separate occasions, two prior to 2007 and one during the course of that year and elude random testing for alcohol and other drugs has serious implications for the maintenance of safety at the Kooragang terminal.

At a glance

Court

Decision date

Source

Judgment (319 paragraphs)

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Cases Cited (46)