Marshall and Sydney Water Corporation [2007] NSWIRComm 1035

LEGISLATION CITED: Industrial Relations Act 1996

CASES CITED: Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No. 3) (1990) 35 IR 70 Wang and Crestell Industries Pty Ltd (1997) 73 IR 454

APPLICANT Mr P M Strain of Counsel instructed by Hedges Bhatty Solicitors. LEGAL REPRESENTATIVES:

RESPONDENT Mr J V Murphy of Counsel, instructed by Bartier and Perry, Solicitors

DECISION: - 47 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Gary Raymond Marshall and Sydney Water Corporation.

Application by Gary Raymond Marshall re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 The applicant was employed by Sydney Water from May, 1989 until his dismissal following his violent behaviour at work on the 4th June, 2006. 2 The matter was originally allocated to Commissioner McLeay on the 10th July, 2006, and the file shows a series of proposed conciliation dates throughout 2006 going into February 2007, which were either vacated or stood over and finally on the 7th March, 2007, the file shows the matter was the subject of conciliation and directions. The file was then set down for hearing on the 16th April, 2007 before Mr Justice Staff in respect of the application for an adjournment of the arbitration. The matter was finally allocated to me for the hearing of the substantive matter on 18th and 19th June, 2007. 3 Appearing for Mr Marshall at the two day hearing was Mr P. Strain of Counsel instructed by Hedges Bhatty Solicitors, whilst the respondent, Sydney Water, was represented throughout the two day hearing by Mr J.V. Murphy of Counsel, instructed by Bartier and Perry, Solicitors. 4 The applicant gave evidence in support of his case and provided affidavits which were marked Exhibits 1, 2 and 3. Also appearing for the applicant's case was Mr Norman Rees, the applicant's treating Clinical Consulting Psychologist who had filed an affidavit with attachments which became Exhibit 10 during proceedings. 5 Giving evidence for the respondent was Dr Louisa Degenhardt, Associate Professor at the National Drug and Alcohol Research Centre of the University of New South Wales. She was followed by evidence from Mr Scott Nieass, a Plant Operator engaged at the North Head Sewerage Treatment Plant, who was on duty and caught up in the applicant's behaviour on 4th June, 2006. He provided an affidavit which became Exhibit 14. Evidence was also given by Mr Colin Nicholson, Manager of Treatment Operations of Sydney Water, who interviewed Mr Marshall leading to his dismissal. His affidavit with some notable attachments was marked Exhibit 15.

BACKGROUND 6 Mr Marshall's dismissal was effective from the 16th June, 2006 following his suspension from the 4th June after the incident which occurred on that shift at his workplace at North Head, involving several other employees. Particularly relevant was his violent conduct towards a female employee by the name of Tanya Carter. This happened during a psychotic episode, involving, inter alia, splashing and wiping his blood onto her person from an open wound on his hand, caused by smashing a window with his fists. 7 It was the applicant's case that his behaviour was uncharacteristic and directly attributable to withdrawal symptoms caused by his decision three to four weeks earlier to abstain from his extraordinarily high cannabis intake over some years of between 20 and 40 cones per day.

8 It was his decision to go "cold turkey" off marijuana without medical supervision, which culminated in the psychotic episode leading to his lamentable behaviour towards other employees.

9 Briefly stated, the applicant's case for relief sought from the Commission was advanced on the premise that what happened on 4th June, 2006 ought to be viewed as something he was unable to control - an involuntary act and uncharacteristic of him, caused by the laudable action of withdrawing from addiction. It was also claimed that his otherwise unremarkable conduct over seventeen and a half years of employment was not properly taken into account. The argument of his Counsel, Mr Strain, went further to say that, rather than be dismissed, the applicant should have been recognised as having a medical condition and given sufficient leave to obtain treatment and undergo therapy. The failure of the respondent to take that approach gave rise to the dismissal being harsh, unjust and unreasonable. 10 Finally, on the basis that the Commission is able to accept that he has remained off drugs since September last year and is unlikely to relapse, his claim in these proceedings was that he should be re-employed at another location within the operations of Sydney Water, subject to a regime of testing against the re-use of drugs. 11 Evidence of his conduct on the 4th June, 2006 was not challenged by the applicant on the basis that he was not able to remember anything which transpired that shift, except at the beginning and towards the end, with the arrival of some police officers. The misconduct for which he was dismissed was therefore neither directly confirmed nor denied by him. 12 The respondent's case can be briefly stated that firstly, arising from Mr Nicholson's evidence, the gravity of the behaviour of the applicant, combined with the need to provide a safe system of work, justified the respondent's decision to terminate his services. Whilst not seeking or being able to seriously dispute Mr Marshall's claim of not being able to remember the events of 4th June, 2006, the respondent strongly resisted any acceptance by the Commission that the applicant's behaviour necessarily arose from withdrawal symptoms, along with his claim of remaining free from drugs for a significant period. The respondent's case insisted that, in any event, there was a real prospect of him re-offending and with serious consequences. 13 Both the applicant and the respondent brought expert evidence on the likelihood or otherwise of the applicant later resuming his marijuana addiction and as to the consequences.

The Evidence 14 Given the lack of evidence from the applicant disputing what happened on 4th June, 2006, the respondent felt it was appropriate that the evidence of the respondent from the statements of employees and later in the proceedings, corroborated by the direct evidence of Mr Nieass, provided the justification for the decision of the respondent to dismiss the applicant on 16th June, 2006 (See "F" to Exhibit 15) following his interview on 13th June. He was provided with the allegations in writing on 9th June, 2006 (See "B" to Exhibit 15) as per the following memorandum: "Dear Mr Marshall Disciplinary Inquiry: Incident at North Head STP; 4 June 2006 The Corporation is conducting a fact finding investigation into an incident involving you and a number of your co-workers at North Head STP on 4 June 2006. Given the nature of the incident, you are hereby suspended from duty until further notice. You will continue to receive your pay during the period of suspension, however this may be forfeited if any misconduct is proven. To gather all information for this investigation you are required to respond to a number of allegations. It is alleged that on the afternoon of 4 June 2006 at North Head STP you: 1. deliberately splashed your blood (from an open wound) on a female co-worker 2. intimidated co-workers by swearing at them; raising your voice; and threatening to physically harm them. 3. acted inappropriately by assaulting officers of the NSW Police who were attempting to assist you and your co-workers. 4. deliberately damaged Corporation property by kicking a door in the women's toilet whilst a co-worker was inside. I refer you to the Corporation's Discipline Policy (copy attached). You will be required to attend an interview. The interview will be held at Rouse Hill STP, Mile End Rd, Rouse Hill at 9.00am on Tuesday 13 June. You will be entitled to have one witness present.

I draw your attention to the disciplinary actions available under the Discipline Policy. Given the seriousness of the allegations, a finding against you could lead to summary termination of your employment. Yours sincerely, Colin Nicholson Manager, Treatment Operations" 15 The statements of those employees given to the enquiry conducted provided the background for the events of 4th June. 16 Consistent with those accounts, Mr Nieass' direct evidence showed that the incident began with the fact that an alarm had sounded in the control room and other plant operators had attempted to contact the applicant without success, which led to the acting Team Leader, Tanya Carter going down to the plant room on the lower level to check out a section of the plant, which was normally the province of the applicant. 17 When the applicant finally appeared, he was extremely angry at the fact that Ms Carter had taken over his duties in that respect and began screaming abuse at Ms Carter. Mr Nieass observed that Ms Carter at that point was visibly shaking and became aware that Mr Marshall then wanted to call Mr Williamson of management to complain about his (Mr Williamson's) lack of leadership as the manager of the plant. 18 Mr Marshall continued screaming and swearing at Tanya Carter and (together with another employee), Ms Carter trying to calm Mr Marshall down. Soon afterwards, glass was heard smashing in the lunchroom area where the applicant had gone, and Mr Marshall returned to the control room with a bloody hand and when asked by Ms Carter as to what he had done, the applicant replied, "I've just put my f…ing hand through the f…ing window. Maybe these c…ts will listen to me now". At this point, Tanya Carter went to get bandages from the first aid box, but received further abuse from Mr Marshall to the effect, "What the f…ing do you think you're doing? Get the f…k away from me". 19 At this stage Mr Marshall flicked blood onto Ms Carter's face and shirt, at least three times, and wiped his bloodied hand across her face, ear, cheek, chin and throat. Mr Marshall appeared to be psychotic during this event and could not be reasoned with, but was persuaded by Ms Carter to go to the men's room to clean the blood off himself. He was followed to the toilet by Ms Carter and Mr Nieass, who noticed blood on the floor, sink, urinal, trough, mirror and window. Ms Carter again offered to bandage the applicant's hand, but received further abuse of the type already described. 20 Evidence was given that around 5.30pm Mr Nieass called management, Mr Brian Bowers and Tony Williamson, who were found to be not available, then spoke to Mr Lowe, who agreed that they should call the police and remove the applicant from the site. 21 At this point, Mr Marshall had returned to the control room and stood close to Ms Carter's face, saying, "I'll take you on, do you want to fight me". Mr Nieass stood between Mr Marshall and Ms Carter, and the applicant said to him, "get out of my way or I'll hit you like I was about to her - you'll be dead before you hit the ground". At that point the applicant pushed past Mr Nieass and left the control room. Shortly afterwards he (Mr Nieass) heard a smashing sound and went to investigate and heard Ms Carter yelling for Mr Marshall to go away. Upon arrival at the female toilet, to which Ms Carter had retreated, he observed that the bottom ventilation panel of the toilet door was kicked in and, upon firstly checking as to where the applicant was, both Ms Carter and Mr Nieass returned to the control room, whereupon Mr Nieass confirmed that the police had been rung and he asked for another priority call to be made. 22 The applicant, Mr Marshall, at this point rang the control room from the lunch room and asked for help, which resulted in Mr Nieass and Ms Carter proceeding to the lunch room, whereupon he further abused Ms Carter by saying, "what are you c..nts doing here?" Ms Carter proceeded to place a bandage on the injured hand of the applicant, who continued to abuse her. Ms Carter and Mr Nieass left together to wait for the police. The police arrived, who when briefed by Mr Nieass, queried drug use and applicant's mental state. Upon being taken to the lunch room, the applicant abused the police and said he wanted to talk to their boss. The police officers called for back-up and another two officers arrived. 23 Mr Nieass and Ms Carter declined to press charges. Police in the control room reported to Mr Nieass that the applicant had assaulted police, including biting one on the knee and abusing ambulance officers who left the site. These details are contained in the police report attached to Exhibit 15. The police advised Mr Nieass that the applicant would be charged with assaulting police officers and he was apparently taken to the police station. 24 A list of allegations, as contained in the 9th June, 2006 letter to the applicant set out earlier formed the basis for a formal enquiry.

25 Four staff members were interviewed during a fact finding investigation conducted on the 7th June. The applicant was interviewed on 13th June, 2006 by Mr Nicholson, Manager, Treatment Operations and by Mr R Ferrier, Manager, Industrial Relations. 26 The lengthy report attached to the affidavit of Mr Nicholson, included the question put to Ms Carter at the end of her interviews over the incident as to whether she would be prepared to sign an affidavit or statement to present to the Industrial Relations Commission. Her response was attached to Exhibit 15, along with a later written signed statement setting out her reluctance to give evidence for fear of reprisal by the applicant. She also stated that she could not work with the applicant again. Other employees also expressed that sentiment. 27 In the case of Mr Nieass, he agreed that he would provide an affidavit and also would be willing to be cross-examined as long as Mr Marshall was not in the hearing room. His evidence has been considered by the Commission and has been relied upon in appropriate instances as apparent later in this decision. 28 The result of the criminal charges bought by police against the applicant was that he was discharged by a Magistrate at Manly Court on 7th August, 2006 pursuant to section 32 of the Mental Health (Criminal Procedures) Act. This required that he proceed into the care of Mr Rees, a Clinical Consultant Psychologist and attend treatment at the Centre for Addictive Medicine (CAM), where he saw Mr Patrick Green, both of whom contributed material in the applicant's case. Mr Marshall's Evidence : 29 The applicant's evidence provided by way of affidavit, Exhibit 1 in these proceedings, included that he had become addicted to drugs following an accident in June, 1990, when he suffered severe injuries after a motor cycle accident. 30 He gave evidence of being hospitalised for some two months and being off work for nine months and that during his hospital stay he was treated with morphine, pethidine and omnipen. He developed an addiction to those pain killers, and when he left hospital he continued to suffer severe pain, but was given only aspirin. This led to experimentation with heroin and marijuana in an effort to control the pain. He gave evidence of being addicted to heroin and, between twelve and eighteen months later, realised his addiction, and resolved to break the habit. In 1992 he joined a methadone program which lasted about eight years, during which time the applicant claimed not to have used heroin and only prescribed methadone. 31 After some eight years on the methadone program, the applicant claimed in his affidavit that he did not want to be on methadone for the rest of his life and to be drug free, and approached Sydney Water and informed them of his decision, and queried as to whether any counselling or facilities were available to assist him. As a result of that he was referred to the Centre of Addictive Medicines (CAM) at Cumberland Hospital, which he believed occurred in 2003. He claimed to have undertaken a rapid detoxification under the scheme, involving being in hospital four days, whilst being sedated and unconscious. 32 He gave significant evidence claiming that he had not taken drugs prior to his accident, other than marijuana very occasionally at parties. 33 The applicant gave evidence that some five years into the methadone program he began using marijuana regularly and continued to do this until the rapid detoxification program, whereupon he ceased his methadone use, but he continued to use marijuana until about three weeks before his termination, when he decided to give up the drug and be totally drug free. He did not consult the Centre for Addictive Medicines (CAM) about that decision, and did not know the possible effect of going "cold turkey", which caused his behaviour on 4th June, 2006. 34 Following his dismissal he sought counselling from CAM, and later from Mr Norman Rees, Clinical Consulting Psychologist (a witness in these proceedings). Only then did he realise that his sudden cessation of marijuana could have a dramatic effect on his conduct, and that he needed further assistance to break the marijuana habit. 35 He gave evidence in the final paragraph of his affidavit filed on the 4th April (Exhibit 1) that since his termination he has continued to seek counselling and treatment from CAM and from Mr Rees, and that he has not used marijuana and that he has broken that habit. 36 In Exhibit 2 of his affidavit filed with the Commission on the 16th April, 2007 the applicant gave evidence that during the lead up to the incident on 4th June, 2006 he had daily cravings for marijuana and he was slowly getting angrier in relation to things that would normally not make him angry. None of his symptoms registered with him to go and see a doctor or a medical practitioner. He maintained that he told workmates of his feelings of low self esteem and anger, but was convinced not to go home and to stay at work. 37 On the day of the incident, (he recalled during sessions with Mr Rees) of events on 4th June, 2006 of having severe cravings to go back on marijuana and was extremely angry with himself as a result, and when he saw his reflection in the window, lashed out at his reflection in order to harm himself by punching the reflection and breaking the glass in the window. He had no intention of breaking the glass, but when he did so there was blood everywhere, and only recalled being on his hands and knees, attempting to clean the blood up and seeing the legs of some policemen who arrested him. They then took him to Manly Police Station, where he was charged with two counts of assault against police and one of resisting arrest. 38 The applicant subsequently appeared in Manly Local Court on 8th August, 2006 on all three offences and pursuant to section 32 of the Mental Health (Criminal Procedures) Act he was released by a magistrate at Manly Court without conviction on the basis mentioned earlier to undertake treatment. 39 He reiterated in his affidavit that he had no recollection of breaking the window and could not deny it. He maintained that any harm and distress caused to his fellow employees was the furtherest thing from his mind and went on to give evidence in his affidavit that having read the reports of CAM and Mr Norman Rees, the Psychologist, that he felt that he was no longer a risk to work colleagues and had not had any episodes since 4th June, 2006, as at the time of swearing his affidavits.

40 In his rebuttal affidavit, Exhibit 3, the applicant replied in respect of Annexure M to Mr Nicholson's statement which were clinical notes from Mr Patrick Green of CAM, showing that the applicant had been indulging in some cannabis use at various times since his dismissal, beyond that indicated in his original affidavit Exhibit 1. The applicant maintained (Exhibit 3) that he had used marijuana on about eight occasions after the 7th August, 2006 (the day before his appearance at Manly Court) on a declining basis, but had not touched marijuana since about the 20th September, 2006, or used any other illegal drug. 41 Again in his rebuttal affidavit, in respect of the reference by Mr Nieass in his affidavit (Exhibit 14) to a conversation involving a glock handgun, the applicant acknowledged referring to this to Mr Nieass, but had done so in jest.

42 Finally, in his affidavit he gave evidence that he continued as of the date of the affidavit of the 4th April Exhibit 1, to seek counselling and treatment from CAM and from Mr Rees since his termination and had not used marijuana and that he had now believed he had broken the habit. 43 The applicant expanded upon important aspects in his affidavit Exhibit 2, stating amongst other things, that none of the symptoms that he had prior to the incident registered with him that he should go and see a doctor or other medical practitioner, during that "three or four week period" when he had gone cold turkey. 44 In cross-examination, the applicant maintained that, whilst he only had the vaguest of recollections of what took place, from what he has been informed, his behaviour on the 4th June was out of character. This he said reinforced the advice he had received "over the telephone from Blacktown Mental Health" that it was inevitable that he had snapped from the effects of going cold turkey. 45 He acknowledged under cross-examination that he had smoked a cone of marijuana the day before he came before Manly Magistrates Court on the 8th August, 2006 - saying "quite possibly", but going on in his evidence to say the marijuana had a calming effect. He had first claimed not to recall the last time he had smoked marijuana and also initially "couldn't say" whether he had smoked marijuana before his appearance at Manly Court. Separately he claimed not to have smoked marijuana throughout 2007. He later claimed that the Centre of Addictive Medicines (CAM) did not expect him to quit straight away, to explain the fact that he had indeed partaken of some marijuana around the time of the August/September sessions with CAM, otherwise he may have had another episode like the behaviour of the 4th June.

46 When taken by Mr Murphy to the claims in his affidavit in respect to his previous drug use, and specifically that he had "only taken marijuana occasionally at parties prior to his accident", he first confirmed that to be correct. 47 However, he was then taken to a document (Exhibit 5) headed Court History Convictions. The first entry drawn to his attention was dated 17th October, 1987 showing he was convicted of a number of offences, including stealing and possession of an implement for the administration of drugs, as well as possession of Indian hemp (marijuana). He confirmed the aspects related to the drug, but on two occasions gave no response to the questions in respect of the stealing charge, but later when taken back to it, claimed not to recall the stealing charge. The next conviction recorded (Exhibit 5) was for malicious damage dated 12th March, 1988 which the applicant claimed also not to recall. 48 He was next taken to his police record involving the possession of a prohibited drug and resisting arrest on the 4th August, 1989, saying that, "if it was on the police file it was probably true", but claiming not to recall resisting arrest. He went on to confirm that he was also charged with possession of equipment to administer a drug and that he was charged with self administering a drug on the 4th August, 1989. When taken to the particular circumstances of that charge, the applicant first claimed not to recall; was slow in finally responding to the fact that the offences had been committed on a train; then admitted that he "may have been" smoking marijuana on the train; but agreed that he was definitely in possession at the time. 49 The applicant was next taken to a police charge in June, 1992, which showed that he was charged and convicted with possession of cannabis and possession of implements whilst driving a bike, first denying any recall, but then agreeing with what was put to him. 50 Mr Murphy then went on to an extract from the applicant's affidavit paragraph 21 (Exhibit 1) and after some hesitation, Mr Marshall acknowledged that the above charges drawn to his attention indicated that his previous use of marijuana prior to his accident in 1990 was not simply "the occasional use at a party" as he had originally claimed in his affidavit (Paragraph 21 of Exhibit 1). His response was "No, but it wasn't on a daily basis either". 51 Mr Murphy also took the applicant in some detail to Police records of certain criminal behaviour in order to challenge that part of his case, which claimed his conduct on 4th June, 2006, was unlike him as he was not a violent person (Exhibit 6 refers).

52 The applicant described how his marijuana use led up to the level of forty cones a day, saying that he sometimes smoked one after another, depending on how much he already had. He claimed that he started smoking that grade of marijuana on the basis that he did not wish to stay on the methadone program and as an outlet to his frustrations on being on the methadone program, but agreed that he smoked between twenty and forty cones a day on most days. 53 Mr Marshall acknowledged being affected by marijuana whilst on the job at North Head Treatment Works on occasions, but to the suggestion that he was severely affected by smoking marijuana whilst on the job, he claimed that he had built up an immunity or intolerance. He went on to agree that he had responsibilities towards fellow workers, for their safety and also to the North Head Treatment Plant in respect of the possibility of severe environmental consequences. He did not agree with the proposition that he had disregarded those responsibilities, but eventually admitted that the use of marijuana would impact on his ability to work safely. 54 In that vein, the applicant was taken to an internal memorandum (Annexure I to the affidavit of Mr Nicholson) dated the 7th August, 2000 headed Alcohol and Drugs. Paragraph 5 of that three page letter specifies that alcohol and drugs, other than individually prescribed medicines, were expressly forbidden at work or to be brought onto the premises. The applicant then suggested that his earlier evidence of being affected by marijuana at work applied to the period prior to the issue of that memorandum, when he was at Liverpool. When asked as to whether he had smoked marijuana at North Head Treatment Works after the issue of that memorandum in August, 2000, gave the response, "I don't recall doing so", then answering "no". When pressed further, he suggested - "maybe around the corner before I entered work, maybe". He specified that this was before he started his shift, but going on to acknowledge that this occurred "quite a few times". The applicant eventually accepted that he had breached that memorandum of August, 2000, and it was pointed out that the memorandum also carried a warning of disciplinary action, and the applicant maintained that he did not understand that to mean that he would be sacked, although when pursued he gave the response, "I had a bit of an idea".

55 In reply to questions as to when he was last treated by Mr Rees, his Clinical Psychologist, the applicant said that the last time he had rung Mr Rees, he had been advised not to bother to come and see him because Mr Rees was happy with where he had got to in his treatment. He thought that that was about two months ago, but thought that perhaps a month earlier than that was the last occasion of him actually seeing Mr Rees. He also advised that he was no longer attending the CAM after his last visit of March or April, 2007. 56 When questioned as to the provision of urine samples to his local GP, the applicant complained that since he was working five days a week, it was impossible for him to get to his GP, after initially providing two samples around March and May this year.

57 The applicant was taken in cross-examination to the incident involving Tanya Carter on the 4th June and admitted that those matters had previously been put to him at interview, and he did not dispute them on the basis that he could not remember In the process, he was taken to the matter raised with his Psychologist that Ms Carter had been sending him mixed messages about her feelings for him. He gave evidence that he thought that had occurred about five years previously. 58 The applicant was asked certain questions in respect of other matters raised with Mr Rees, his Psychologist, the first of which was that at the time, he believed that several of the men at work were able to read his mind and thoughts, which he thought was about eight months prior to the 4th June incident. He denied being resentful about that, but rather that he was intrigued as to how they did it, and he thought he felt more envious than resentful. His lack of resentment extended to certain personal questions that had been put to him at the time. 59 The applicant acknowledged having been sent to an Anger Management Course by the Centre of Addictive Medicines, and whilst he was aware of attending after the 4th June, 2006 incident, he was not sure if he had been sent on a previous occasion after the previous detoxification program to get off methadone. The applicant also acknowledged that his mother had left the house for one week following violent conduct on his part in late May, 2006. 60 In respect of whether he had advised Mr Rees that he had not taken marijuana since he first attended CAM, the applicant advised that he could not recall, but agreed that if he had told Mr Rees that, that he would not be telling the truth. 61 Mr Murphy took the applicant to a letter dated 16th January, 2007, from his Clinical Psychologist, Mr Rees to his solicitors, Hedges Bhatty, which said in part, "he's no longer taking any medications. He has now been abstinent from cannabis since his referral to the centre". He acknowledged that that statement was incorrect, and later in his evidence, whilst agreeing that he continued to smoke marijuana after commencement of the CAM program with Mr Green, he then claimed that the marijuana he smoked was not his own, but given to him as payment for a debt owed. 62 Exhibit 7 was a report dated the 9th August from Mr Green of the CAM Centre which outlined the applicant's statements to Mr Green as to his use of cannabis during some of the visits to the centre at various dates in the latter part of 2006. 63 One of Mr Green's reports contained a statement that the applicant had assured Mr Green that he drank alcohol responsibly and felt that he could control his use of alcohol. This was dated 24th October, 2006 when he attended the CAM. He was said by that stage to be totally abstinent from cannabis, but was now wary of developing a problem with alcohol. He could not recall the advice given to him by the Clinician that he should attend AA sessions.

64 In respect to his association with alcohol consumption, the applicant was at that stage taken to a police report concerning an altercation at Doonside on the 8th April, 2007. The applicant claimed that he had been "rolled" and had his phone taken and his collarbone broken. When his attention was drawn to the fact that the police report stated that he had consumed a 750 ml. bottle of overproof rum, the applicant responded that he had given a few drinks to other people out of that bottle. Whilst admitting consuming the bulk of the bottle of overproof rum, the applicant claimed that that had taken place over a ten hour period whilst at a party. 65 At the end of his cross-examination the applicant denied that he was still continuing to smoke marijuana right up to the incident on the 4th June, 2006.

Evidence of Mr Norman Rees 66 Expert evidence on behalf of the applicant was given by Mr Rees, his treating Clinical Psychologist, who provided an affidavit/report which was marked Exhibit 10. 67 Whilst Mr Rees' last report of interviewing the applicant is dated the 17th February, he gave evidence that he'd spoken over the telephone since that date and probably did so the last occasion, some six weeks prior to the hearing. He gave evidence that he understood then, that the applicant was undergoing the testing required of him and successful in gaining some employment, that his relationship with his mother had settled down, and was keeping a social network together with previous friends from Sydney Water. 68 On the question of chances of him reusing cannabis, Mr Rees gave evidence that he thought that the applicant was at the "better end of the spectrum in terms of reuse" and went on to suggest there was relatively little chance of a relapse at this stage. Under further questioning on the same issue, he gave evidence that generally speaking, people find it a very hard thing to break the habit of marijuana use and after twenty years, probably less than a quarter have broken the habit. 69 Dr Rees gave evidence that the withdrawal from addiction like cannabis tends to peak in the first week or so in terms of discomfit, and in his practical experience was to treat such people with valium as a tranquiliser through an addictions program lasting up to six weeks. 70 On the basis of what the applicant had advised him, Mr Rees believed that marijuana use itself was creating an underlining psychotic process. 71 Important to the applicant's case was Mr Rees' evidence that he believed that the applicant was unable to form an intent in respect of his actions on the 4th June, 2006. 72 In response to a question as to the investigation interview conducted on the 13th June, 2006 by his employers, Mr Rees doubted very much whether he would fully understand the proceedings or have been able to speak on his own behalf, or to understand the proceedings fully at the time. 73 In cross-examination Mr Murphy put the proposition to Mr Rees that his findings were very much dependent upon what he was told by Mr Marshall. Whilst agreeing somewhat, he said that his findings were also dependent on assessments and tests and not entirely due to what actually was said in the interview, and a number of dimensions are attempted to be read, including body language, that is to assess the veracity of what people are saying from their body language. He believed that the psychologists had developed a certain level of skill with that process. In addition, an objective assessment is made of personality and emotional function, which is also relied upon. 74 Mr Rees had used what he called a Personality Assessment Inventory, involving the applicant "not being administered by Mr Rees or anyone else" and he further clarified - "no, no, it's a test that he sits by himself to do". The report is a computer generated report based on his answers and the author of the test filled out by Mr Marshall was an American Clinical Psychologist by the name of Lesley Moray PhD. (Exhibit 11 refers). 75 Mr Murphy took Mr Rees back to the issue as to what extent the Clinical Psychologist is dependent upon what they are told by the patient and drew upon an instance where the applicant appears to have misinformed Mr Rees. Mr Murphy referred him to a letter written by himself to Mr Marshall's solicitors of the 16th January, 2007 and quoted from that letter, "he has now been abstinent from cannabis since his referral to the centre", which he pointed out was contradicted by CAM reports. Mr Rees then agreed that people in his situation had to maintain, "a healthy scepticism", working with people with drug addictions. He also agreed that Mr Marshall would have been attempting to present the best possible case for the purposes of these Industrial Relation Commission proceedings. It was put to Mr Rees that it had been shown that information was false and that the applicant had actually still been using marijuana up until the 20th September, 2006, (almost two months after his claim as advised in the letter of the 16th January, 2007). Mr Rees was dismissive of the importance of that contradiction on the basis that the applicant might have occasionally used marijuana. Also, given "the frightening episode that he had had on the 4th June, and being asked to go cold turkey", he would not be surprised that Mr Marshall may have occasionally reused marijuana. When pressed on the question that Mr Marshall had not told him that, Mr Rees answered that Mr Marshall at least had not used marijuana "for some time" since his referral to the centre, but as far as more recent times are concerned, as far as he could ascertain from talking to Mr Marshall, many months had gone by without his use of cannabis, but went on to concede again that information would depend upon him being told the truth by Mr Marshall. 76 Mr Rees also dealt with the question put to him by Mr Murphy in respect of his behaviour towards Tania Carter. Mr Rees suspected that that behaviour was the result of a whole lot of delusional thinking associated with that particular woman and was part of the evidence of his underlining psychotic reaction, although his response to her was irrational. Again he stressed that the actions of Mr Marshall did not have any volition as such, and he did not believe him capable of forming an intention to hurt a person. 77 In respect of the incident of biting a police officer on the leg, Mr Rees had otherwise heard that the same police officer had had his foot on the throat of the applicant, and this made him wonder about the incident. 78 As to whether the consequences for Mr Marshall's colleagues at work could have been far more serious if he was so out of control, Mr Rees disagreed with that proposition because the applicant had never had a history of aggression. As far as his work colleagues were concerned, although kicking the door, he did not actually hurt any work colleague, and in respect of the police officer, there were other issues involved which perhaps contain provocation. He agreed at that point that he was surmising that there was some provocation. 79 When taken by Mr Murphy to the fact that the applicant had a police record, Mr Rees testified that he knew that the applicant had a criminal record, but he was not aware of any acts of assault reported as such, though that involved some incidence of stealing and "a few minor things". Mr Rees went on to again repeat that the applicant had not shown any history of violence towards other persons in response to the question of what might occur if the applicant had a weapon. 80 To questions such as to whether he was aware that the applicant was an intravenous drug user in the past, Mr Rees acknowledged that he was aware of that, but suggested that it was a long way back in time. As to whether he was aware that he had smeared blood on the face of Tanya Carter, Mr Rees suggested that it was again an involuntary act and referred to the issue of probability and suggested that this was the first time in Mr Marshall's life, that such a thing had happened. 81 He agreed with Mr Murphy's proposition that the probability of such conduct reoccurring or even more dangerous conduct, depended upon his ability and or willingness to stay off illicit substances, but suggested that the things that happened on the 4th June provided multiple motivations for the applicant to keep off cannabis, not just simply because of the proceedings before this Commission. 82 During this stage of Mr Rees' evidence, the personality assessment structured by Lesley Morley PhD., referred to earlier was tendered as Exhibit 11, and whilst agreeing with Mr Murphy's description of it being useful in assessing psychological makeup of people, he qualified its utility. The test he went on to say was useful as a validity check to see how a person was responding to the test and whether they were trying to distort the questionnaire with their responses towards presenting in a good light or to distort their responses by being overly frank, presenting themselves in a bad light. In the case of Mr Marshall, Mr Rees believed that Mr Marshall presented himself in "a very frank and candid fashion, more than many people would". 83 At this stage in the cross-examination of Mr Rees, Mr Murphy took him to specific areas of the questionnaire/tests filled out by the applicant, such as "manifesting fairly rapid and extreme mood swings and in particular probably experience episodes of poorly controlled anger". To that and many of the other unfavourable entries in the test, Mr Rees responded to the effect that the applicant had been overly frank and by nature was that sort of person, who, "shoots from the hip, is a frank individual". He developed that theme in several of his answers in response to the above, for instance, when he said, "how we use these things, we use them clinically, we don't look at every paragraph or everything that is reported by the computer generated report. We try to look at the scores, weigh it up with the validity considerations and the attitude of persons to the report. So we had a rather unusual attitude to doing the report". He repeated his assessment that Mr Marshall presented himself in an overly frank way, which he claimed meant the report is distorted towards the "look bad end and - so many of these statements are going to be exaggerated towards a certain end of the spectrum". Mr Rees, amongst other things, suggested that, "that's my clinical judgement of the report. I made some determinations from this report using it, certainly those questions which he's triggered regarding thought disorder, it was clear that that was still current when I did this report. So he still had a degree of thought (sic) disorder there, hadn't been fully treated. He was using - under prescriptive medications at the time to get that under control". 84 Mr Rees developed a similar theme again further in his cross-examination, suggesting that the applicant was still somewhat psychotic when he did the questionnaire, "so he wasn't recovered at this point. So this was done on the 8th August, 2006. I mean, we're looking at a point of time where he just - medications hadn't kicked in, he was still getting psychiatric treatments". 85 Similarly with Mr Murphy's question as to whether or not the report, which suggested that, "the respondent's self description indicates significant suspiciousness and hostility in his relations with others", Mr Rees suggested that that should be put to one side, again, because of the way the applicant has approached the questionnaire in an overly candid way, which Mr Rees suggested, distorted the questionnaire. It was up to him, as Clinical Psychologist, to make a clinical judgement about that situation. When Mr Murphy persisted with the question in respect of that quote, Mr Rees offered further, that, "he certainly had suspicions. I don't know about hostility, I wouldn't agree with that". 86 The cross-examination continued in a similar vein and was similarly defended by Mr Rees. 87 To the important question, concluded in the report, "and reversals should be expected (that is given the difficulty of the process)". Mr Rees again suggested that it was "simply generated by the computer", but eventually accepted that reversals could happen, but thought that that would depend on the sort of steps taken by the applicant to maintain his abstinence and how many social stresses were still present. He assumed from his understanding, that the applicant's psychotic symptoms had diminished to zero as a result of the appropriate medication and went on to suggest that the probability of reversal was relatively low. 88 In reply to a set of responses in the test provided by the applicant on such concepts as, "potential for aggression, people are afraid of my temper", to which the applicant had answered, "mainly true", Mr Rees suggested, "no doubt he was thinking of the incident two months before". Likewise with the entry, "sometimes my temper explodes and I completely lose control". To similar entries, Mr Rees varied his response to the effect, "so no doubt he is responding to things that he had been told". 89 Mr Rees drew the conclusion in cross-examination that if the applicant maintained his abstinence from marijuana and continued his current level of social functioning, he thought there was very little chance of another incident occurring. 90 When the topic was bought to the use of alcohol by the applicant, Mr Rees ventured that in no sense was the applicant an alcoholic. When his attention was drawn to the fact that the applicant had consumed the greater part of a 750 bottle of overproof rum on the 8th April, 2007, Mr Rees agreed that it would make most people very drunk, but pointed out that he was aware from previous evidence given by Dr Degenhardt, heard by him in the hearing room, that the applicant gave evidence that he had given some of the bottle away. On the question of control with the use of alcohol, Mr Rees thought that they were two very different drugs and later suggested that he would not expect the applicant to be aggressive, and again referred to the applicant's history which he believed showed him as not being an aggressive person, except when he was in that psychotic state. When taken further to the incident of the police involvement with the consumption of alcohol in April this year, Mr Rees defended the situation on the basis that the applicant had been to a party with friends, but did not know the circumstances of the physical fight in the street involved. Later in that area of evidence he suggested that the probability of him threatening or posing a threat to fellow employees at Sydney Water was low. He went on to agree with Mr Murphy that it all depended upon him staying off drugs, particularly marijuana. 91 When the evidence of the applicant having smoked up to four cones of marijuana immediately before commencing work was put to Mr Rees, his response was that, "he would have thought likewise, that, if his work diminished there would have been some reports raised about his efficiency and effectiveness and there would have been several warnings given, the usual due process, yes, and I would say he should be dismissed". 92 When pressed in cross-examination by Mr Murphy, Mr Rees agreed that he would have thought that the applicant should not go near marijuana again, "using at that level that he was using at was particularly dangerous and he shouldn't go near the stuff, absolutely". And again, when pressed further on the issue later in his cross-examination, gave evidence, "definitely I think. I think he's quite vulnerable on that level of use, any psychosocial stresses might trigger off another episode. I mean, if he was using recreationally once a month or something, we could probably say it wouldn't be likely, but I would have thought in his case, given he has had this response to marijuana, he should just totally keep away from it". 93 On the issue of proposed testing under the claim for re-employment, the propositions posed by Dr Degenhardt as to the ability to test marijuana and other drugs were put to Mr Rees. He disagreed with Dr Degenhardt in respect of the need to test fortnightly, and thought that once a month would be sufficient to detect the presence of cannabis in the blood stream.

Evidence of Doctor Louisa Degenhardt 94 The evidence of Dr Degenhardt, (Associate Professor), commenced with a tender of her affidavit marked Exhibit 9 containing some important observations of the effect of the use of cannabis and particularly as it might previously have affected, or might affect the applicant in the future. 95 She also gave evidence, relevant to the applicant's claim for conditional re-employment, advising as to the extent to which amphetamine drugs stay in the body which might allow them to be traced through testing. Cannabis, she said, could stay in the body for up to thirty days, enabling it to be detected by a test during that time. 96 Dr Degenhardt was taken by Mr Murphy to the issue of the consumption of the 750 ml. bottle of overproof rum by the applicant in April this year, as it might relate to the prospect of his reuse of cannabis. Her evidence was that, given the strength of overproof rum (and the fact that a significant portion of the bottle had been consumed by him), one of the risks for some people in relapsing to a drug, is that they had developed a problem with the use of another drug. Different drugs tend to be used together and she testified that the use of alcohol could be a trigger for reusing cannabis, because of the association involved, and also with the disinhibiting factor involved with the use of alcohol. 97 In her report tendered into evidence, Dr Degenhardt pointed out that there were two mechanisms through which Mr Marshall's behaviour on the 4th June, 2006 might have been related to cannabis use. The first would be cannabis withdrawal and the other cannabis intoxication. 98 She believed that there was significant uncertainty as to whether Mr Marshall was in fact in withdrawal at the time of the incident as claimed, based on the fact that he made various references to clinicians at the Centre of Addictive Medicines and to Mr Norman Rees, that he wished to become (as opposed to already being) abstinent from cannabis; the varied time frames that Mr Marshall offered in respect of his actual period of abstinence; and the fact that the police report of the incident said that he appeared "intoxicated"; and the fact that he refused to submit to urine toxicology samples until August, 2006, at which point he was still testing positively for cannabinoids, on both the 25th August and the 1st September, 2006. 99 On the basis of those facts, Dr Degenhardt found it difficult to ascertain that he had actually completely ceased cannabis use prior to the incident on the 4th June, i.e. the claimed withdrawal psychosis theory. 100 She dealt with the second possibility, that rather than reacting to withdrawal, he was displaying psychotic/like symptoms because of intoxication with cannabis. 101 On the basis of the heavy reported use of between twenty to forty cones per day, withdrawal symptoms would have been likely. However, a United States study showed that the onset of withdrawal symptoms typically occurred between one to three days after stopping use and the peak withdrawal symptoms occurred between two to six days following the cessation of use. Effects lasted up to fourteen days. 102 Core features of withdrawal syndrome have been argued to included anxiety, decreased appetite and body weight, irritability, restlessness, aggression, anger, shakiness, sleep problems and stomach pain. The same authors of those findings concluded that the magnitude and time line of symptoms were similar to the very well documented tobacco withdrawal syndrome. Dr Degenhardt therefore concluded that the peak period of risk for withdrawal symptoms would have passed quite some time before the incident with few or any residual effects and that only some symptoms reported of Mr Marshall appear to be core features of the withdrawal syndrome.

103 If, in the alternative to the effects of withdrawal from cannabis, he had actually been under the influence of cannabis, his behaviour did reflect cannabis intoxication. Her report, in answer to the formal written questions posed to her, showed that there is evidence on the association between cannabis use and psychotic symptoms. The relevant literature suggests that those vulnerable to psychotic disorder may be at higher risk when under the influence of cannabis. 104 Her report also dealt with other specific issues, such as the acute effects of cannabis intoxication on memory, which was consistent with Mr Marshall's self reported inability to recall the events of the 4th June. 105 Dr Degenhardt was also required to comment on the question of the likelihood of Mr Marshall lapsing into reuse. She began her response by pointing out the limited research on that particular issue, but which she described as of good quality, and combined with her reading of the documents given to her, she was of the opinion that there was a very high risk that Mr Marshall would return to cannabis use. She based that finding on several aspects included in her report, including the long history of heavy use. She backed up that finding with certain statistics included in relevant publications and referred to Mr Marshall's tendency to be quite reactive to sensors; his limited social support (including difficulties with his mother); his reports of other psychological and drug use problems. 106 Dr Degenhardt also referred to the relatively limited treatment Mr Marshall appears to have received, compared to hospital treatment. Neither does it appear that he has pursued ongoing case management with his local Community Health Centre, despite it being recommended by his treating Clinicians (Mr Green's affidavit). 107 Responding to a further important question as to the risk of further inappropriate behaviour at the workplace, Dr Degenhardt commenced her response on the basis that such a question depended upon the risk of his return to cannabis use. 108 On the basis of the earlier finding by Dr Degenhardt that there was a high risk of Mr Marshall returning to regular use, given the reports of his strained relationship with others and the personality assessment report, there was evidence to suggest that there was a risk of future symptoms returning if there was a relapse to use. 109 A further question was put to Dr Degenhardt as to whether, given Mr Marshall's use of twenty to forty cones per day, that he would have been under the influence of the drug at work. Dr Degenhardt advised that it was very likely that he would have been under the influence of the drug when attending his place of work, and spoke of the high likelihood that he consumed cannabis prior to attending work. She qualified that on the basis that Mr Marshall would probably have developed tolerance to some of the effects of cannabis, given his heavy use, although that would not mean he is not intoxicated. Such things as motor skills required for the operation of machinery are affected. 110 Responding to a further question as to the risks of schizophrenia, she said the use of cannabis and psychotic symptoms and disorders are associated with cases of schizophrenia, although the subject continues to be debated. 111 Dr Degenhardt's report went on to make specific observations in respect of specific cannabis psychosis. 112 In her summary, Dr Degenhardt referred to certain research, namely the fact that his psychotic symptoms were related to his use of cannabis (as claimed himself) which suggests that a return to cannabis use risked a return to psychotic symptoms. 113 Under cross-examination it was put to Dr Degenhardt, that unlike Mr Rees, his Clinical Psychologist, she had not sat down with Mr Marshall eye-to-eye to interview him. Her response that she was in a different position than Mr Rees, and whilst a Clinical Psychologist would deal in depth with a patient's problem, it is also certainly the case that as a researcher, Dr Degenhardt can look at the situation from a different perspective and always within the broader context of what is known about the problem and the situation in general. 114 She was asked whether, given the applicant's lengthy use of cannabis, that it was reasonable to expect that there would be a severe risk reaction to the withdrawal from cannabis (as claimed). Dr Degenhardt compared the situation to the withdrawal from alcohol which she described as possibly life threatening, whereas the literature suggested that there is a much milder withdrawal syndrome from cannabis. Whilst the experience can give rise to discomfort, it is not a severe withdrawal syndrome as we see from other drugs. 115 Again in answer to questions, she postulated that if it is accepted that his behaviour on the 4th June arose from withdrawal, his psychotic symptoms she believed, were not actually the core features of withdrawal, which again she suggested were more related to the influence of cannabis rather than sudden abstinence. She reinforced that view under further questioning. 116 She also gave evidence of the likelihood of successful withdrawal, stressing there was only an estimate of probability. She believed that some, in the order of twenty-five to thirty percent of people would remain abstinent in the case of heroin. Mr Strain asked Dr Degenhardt in the case of cannabis, that if the applicant had been abstinent from cannabis for some nine months, as to the likelihood of him remaining abstinent, she believed that it would be difficult to say. However, if we accept that he has been abstinent for nine months it bodes well, she said, but went on to say that stress is a factor for relapse and the more complicated and extensive the history of other drug problems, it tends to predict a higher risk of relapse. 117 In respect of the need to regularly test Mr Marshall should he be restored to his employment, Dr Degenhardt suggested that testing would need to occur once a week or on a once a fortnight basis, which might ensure detection of marijuana, but that if a person used other drugs, the window for detection is much shorter - in one to two days. Therefore, the testing to ensure relapse to other forms of drug use would need to be much more regular than that for marijuana. Cannabis is an exception to other drugs in that it does last in the body because it is stored in the fat for up to thirty days.

Mr Nicholson's Evidence 118 Mr Nicholson's evidence was that he and Mr Ferrier interviewed Mr Marshall following him being provided on the 9th June in writing with the matters with which he was charged (as earlier transposed). Exhibit 15 was tendered during his evidence which was his affidavit attaching some significant reports and also dealing specifically with the minutes of the meeting held with Mr Marshall. 119 Apart from pointing out that he was not medically qualified to answer some questions in respect to Mr Marshall, he gave an answer to an important matter raised by Mr Strain as to why the Sydney Water did not recognise the situation as a medical problem and offer counselling or any feedback in respect of his behaviour on the 4th June, 2006 similar to what was previously offered to him to give up his heroin/methadone some years previously. Mr Nicholson responded that dismissal action was warranted because of the gravity of the incident involved, which he believed was on a very high scale of seriousness. 120 Attached to his affidavit was a copy of minutes prepared at the meeting of 13th June which set out several matters that the applicant raised in mitigation of his actions on the 4th June. In cross-examination Mr Nicholson mentioned three of these as being the problems the applicant had with his mother, problems with management and the issue of expenses to his motor car. His minutes attached to Exhibit 15 also showed other mitigation factors mentioned by Mr Marshall. 121 As to whether he believed the applicant was telling the truth in not being able to remember the incident of the 4th June, Mr Nicholson gave evidence that he could not be certain and that he was aware that the applicant could remember certain parts of the day such as when the police were there. When pressed as to whether the applicant was probably telling the truth, agreed that on the balance of probabilities, the applicant was probably telling the truth. 122 He agreed that the applicant was repentant during the meeting and that he had said that the fellow employees affected by his conduct were good people and he agreed with Mr Strain that the applicant had done his best to answer the questions put to him. 123 Taken to the claim that the respondent had failed to take into account the applicant's unblemished seventeen and a half years employment, Mr Nicholson stated that whilst there was no written documentation of blemishes, he was aware that there were instances where the applicant had been counselled on his behaviour, but agreed that they were not on his disciplinary file. He mentioned in his affidavit that he had taken into account the length of service and the applicant's employment history. 124 Again, in answer to other questions from Mr Strain, Mr Nicholson relied upon what he described as the gravity of the situation that occurred on the 4th June, and the traumatising effect on other employees, especially having to undergo HIV and Hepatitis tests, and the fact that damage had been done and blood splattered around, and that the same thing might occur again if the applicant was allowed to continue his employment. 125 Mr Nicholson declined to give an opinion as to whether Mr Marshall's episode was a result of being under stress on the basis that he was not a medical practitioner and could not say the cause of his conduct, although from the experts' opinion, it seems that the applicant had some sort of psychotic episode. He went on later in his evidence to clarify that as he understood it, the applicant had lost his temper and was acting inappropriately, but he could not say whether it was psychotic behaviour or not. He believed that the damage done by Mr Marshall was deliberate, including kicking in the door of the women's toilet whilst Ms Carter was inside, although later in his evidence conceded that he was not able to form a belief whether or not Mr Marshall's behaviour was intentional, because of his lack of medical knowledge. The applicant offered nothing to explain his behaviour except to claim loss of memory and gave no reasons for why he could not remember.

126 He gave evidence that it was his belief that the applicant was quite lucid on the particular day of the interview. He gave evidence that the applicant was given a fair opportunity to respond and to look at any mitigating circumstances, and if he could not remember, to suggest why he could not remember, and finally he came up with the disagreement with his mother, management and problems with costs associated with his motor vehicle. 127 Mr Nicholson instanced the safety risks involved in the working of the plant for both the applicant and other team members and visitors if he was to be re-employed and commit acts similar to those of 4th June, 2006. There was also a very real safety risk in terms of running a complex plant, as well as severe fines under the legislation for environmental pollution.

Final Submissions - For the Applicant: 128 Mr Strain on behalf of the applicant began his final submissions with reference to what he described as the long lengthy work history of the applicant, who has very few skills outside Sydney Water. 129 The importance of the case lies in the fact that it involves what Mr Strain described as mental illness, which he stressed as being an important issue for society generally. 130 As to the tests of harsh, unjust or unreasonable, he believed that the applicant was not given a proper opportunity to make out a defence as required by the Act, and Sydney Water's own disciplinary policy. One of the requirements of the Act is to be given a fair dinkum opportunity to make out a defence and respond property, which Mr Strain claimed was not given to the applicant. 131 He believed that the Commission would accept that on the 4th June, 2006, the applicant had a psychotic incident and even Mr Nicholson, who Mr Strain described as being evasive about most things, agreed that the evidence before him led him to think that the applicant had lost the plot. 132 The next issue that Mr Strain attempted to establish from the evidence was that the incident was extremely out of character for Mr Marshall, who he said, to use an expression, was not lily-white, but a rough and tumble sort of bloke, a shift worker, an unskilled shift worker, but who was without a blotch or mark on his disciplinary record. 133 Mr Strain suggested that the evidence of Mr Nieass was that, as far as he was concerned, there was no violent behaviour towards others from Mr Marshall, and although there was some dispute about that, but at least in the way of punch-ups and the like. 134 The worst that can be said is that in his seventeen and a half years with Sydney Water, he arrived drunk at work a few times according to Mr Nieass. There was no evidence that he ever smoked cannabis at work, but by his own admission, on a few occasions he did so around the corner. Mr Strain again referred to the fact that Mr Nicholson accepted that the applicant could not remember what had happened to him on the 4th June, 2006, and according to the evidence, the applicant was on medication at the time of the interview on the 13th June with Mr Nicholson, to calm him down. This was important to the fact that Mr Rees suggested that the applicant was not in a proper frame of mind to have given that sort of interview, so soon after. 135 The respondent should have taken the view in that interview, that with seventeen and a half years with an exemplinary disciplinary record, and the fact that the applicant could not remember what went on, should have resulted in the respondent taking the view of getting to the bottom of the problem and sending him off to a psychiatrist to work out what was going on. Answers should have been provided as to why an employee behaved in that manner. They should not have terminated a very long term and, for the most part, well behaved, employee. His inability to remember should have been investigated. 136 Mr Strain referred to the evidence of Mr Rees, who said that what took place on 4th June, 2006, was an involuntary action by the applicant, it was out of his control and unintentional. Mr Strain referred to the fact that the Manly Local Court had released him pursuant to Section 32 of the Mental Health (Medical Procedures) Act, with no pleas of guilty or not guilty, which reflected the fact that the matters were out of his control. The fact that he was referred to medical supervision indicated that he would have recovered from it. The situation in someone drinking two bottles of bourbon and then going out of control was different to the fact that the applicant also did not smoke forty cones of marijuana and then go to work and get out of control, which would be a different set of circumstances. Mr Strain submitted that here was a man with long term heavy drug use and off his own bat, with no assistance from anyone else, ultimately to his disadvantage, and everyone else's, did what he thought was right to try and break the habit by going cold turkey. He was not to know that there would be any side effects in doing so. Mr Strain asked the question as to how an employer, when dealing with a man who'd worked without a serious blemish for seventeen and a half years could be sacked summarily for doing something involuntarily. Any termination under those circumstances must be unfair. 137 On the issue of reinstatement and monetary compensation, Mr Strain suggested that Mr Murphy's concern for a relapse is countered by the applicant's volunteering to be re-employed in another area. He claimed that Dr Degenhardt's evidence supported the lack of likelihood of a relapse, given that he had managed to shake the habit of both heroin and methadone and had gone through counselling with CAMs and Mr Rees. Dr Degenhardt thought that his history boded well for him to be able to stay off cannabis, while Dr Rees thought that the applicant was at the better end of the spectrum and that the likelihood of relapsing was not great. 138 The Commission should consider that the applicant is prepared to be placed under a regime of urine analysis, drug analysis and whatever is reasonable to make sure he doesn't go back to where he was before, and he believed that this was a very reasonable proposition given that the applicant was at the very low end of the scale of the likelihood of reuse. 139 As to the applicant's criminal/drug record, close analysis reveals that he was very young when those convictions took place many years ago and, in terms of violence, the altercation in the car park did not involve any police actions. Likewise, with the 2002 fireworks complaint. 140 Mr Strain submitted that Mr Nieass had, by his own admission, shown that he did not like the applicant and in his evidence, was shown to be gilding the lily in terms of the applicant's behaviour generally at work. 141 He finished his submissions by suggesting that it was a clear case for the Commission to find that the termination was harsh, and for re-employing him in another location.

Final Submissions - For The Respondent: 142 Mr Murphy, in reply to those of Mr Strain, suggested, in respect of whether the applicant had not had a fair opportunity to be heard, that the applicant was given the choice to have someone with him, which he declined; he was provided with every opportunity of having the matters put to him and respond to the charges against him; the matters involved were put to him in writing several days before he was required to attend the interview; and it could be expected that he understood the importance of the interview; he was asked at the end of that interview whether he had anything else that he wished to put before Mr Ferrier and Mr Nicholson in mitigation. 143 To deal with another point made by Mr Strain - had Mr Marshall said at any stage that he wished to see a psychiatrist, a response could have been made at that time, but he did not. 144 It is entirely unfair to criticise the process, as Mr Nicholson and Mr Ferrier were not capable of reading Mr Marshall's mind. 145 As to the alleged out of character behaviour on the 4th June, relied upon by Mr Strain, the evidence of Mr Nieass in cross-examination went beyond the rough and tumble. Mr Murphy instanced the evidence of the applicant smashing a coffee cup on his forehead in order to set up a false allegation of assault against a supervisor, which he described as deplorable behaviour, which was not denied. He referred also to the female employee, Ms Carter, being grabbed from behind on the vagina when she was signing on. Again, he said it is deplorable behaviour and violent behaviour and again, not denied. The behaviour of the applicant on the 4th June may have been an extreme incident, but it was not extremely out of character as put by Mr Strain. 146 Mr Murphy referred to the evidence of the applicant that he had smoked some cones of cannabis before going on shift according to Mr Strain, but in fact the evidence showed there was only a few occasions where the applicant did not go to work off his face, and that was the applicant's own evidence. It is not reasonable for the applicant to say that "I was out of control on 4th June and therefore I cannot be blamed". This Commission has never embraced that sort propitious nonsense, as Mr Murphy called it, which might be appropriate in local court on criminal matters. This jurisdiction expects people to accept responsibility for their actions. 147 The submissions put by Mr Strain that his state of being out of control was the result of some sort of meritorious enterprise that he had embarked upon, in that he had gone cold turkey from his flagrant misuse of cannabis (forty cones a day) were to be disregarded. Far from being a meritorious endeavour, these were the actions of a person who for years abused illicit drugs, put himself and others at risk without any thought of the possible consequences of that. No one stood there and put a gun to the applicant's head or to stick a needle in his arm. No one stood in front of him and forced forty cones of marijuana down his lungs. He did these things himself and it is quite deplorable to now suggest that having done that to himself, and being the architect of his own situation, he now deserves some merit badge for the story that things went wrong when he tried to get off that sort of stuff. 148 On the issue of relapse, Mr Murphy suggested that Mr Strain got the evidence of Dr Degenhardt the wrong way round, when in fact, her evidence in her report is that the prospects of relapse are high. Her evidence about the impact of his previous involvement with heroin and methadone, amphetamines and whatever you like was, that in fact it increased his risk of relapse rather than the other way round, higher than it might otherwise be.

149 In relation to the proposal for the applicant to undergo a testing regime, there was no basis for imposing such a requirement upon an employer. 150 Mr Murphy described the criticism of Mr Nieass as being quite unfair and he did not say he disliked the applicant, but in fact to the contrary, that he quite liked working with Mr Marshall, and that it could be a good experience. Mr Nieass did give very clear evidence that Mr Marshall's conduct came in waves and it was also unfair to suggest that Mr Nieass was prepared to say anything to keep Mr Marshall out of his employment. It is entirely understandable that Mr Nieass and anyone else that was put through the incidence of the 4th June last year, would not want Mr Marshall back.

151 On the applicant's credibility, Mr Murphy pointed out some false impressions the applicant had tried to create with the Commission, beginning with paragraph 21 of Exhibit 1, containing the claim that he had not taken drugs, other than marijuana, except very occasionally at parties before his accident. That accident happened in 1990 and we now know that his proposition is false and from his criminal record and Exhibits 5 and 6, it is quite clear that he was taking marijuana, and being caught by the police, charged and convicted for doing so in situations that were not "very occasionally at parties". It was in public, and on one occasion on a train, and when confronted in cross-examination, he's ultimately made this concession. The applicant was forced to concede that he attempted to mislead the Commission in that regard.

152 A further attempt to mislead the Commission was in respect of paragraph 20 of the applicant's affidavit Exhibit 1, where he claimed that he had experimented with heroin and marijuana as a method to control pain, although under cross-examination his evidence was that the marijuana was not for pain but as a result of frustration, whatever that might mean. 153 Paragraph 32 of Exhibit 1 the applicant sought to create the impression that he had been drug free since the incident on the 4th June, and some weeks prior to that, and likewise in paragraph 12 of Exhibit 2, in the applicant's second affidavit. Mr Murphy referred the Commission to Mr Rees' evidence, where it can be seen that the applicant had told Mr Rees (Annexure E to Exhibit 10) that he was abstinent from when he was referred to CAMs on the 7th August. 154 The respondent only knew the incorrectness of this statement from the documents subpoenaed from CAMs tendered as part of Exhibit 7. The clinical notes taken by CAMs, Mr Green, showed that he used cannabis right up until September, 2006. One of those days was the day before he was due in the Manly Local Court, which displays an attitude to drug use and the contempt for legal processes of the State. 155 As to the applicant's current alleged drug free status, Mr Murphy submitted that all the evidence showed was that he apparently conducted a negative drug test occurring on the 16th March this year. One would have thought that if he was serious about clearly demonstrating to this Commission that he was free from drugs and was intending to remain so into the future, he would have something more than one blood test since the 16th March. His last blood test did not come with a result, but had gone missing, which again does not show any committed attempt to put the proposition to this Commission in support of his claim of abstinence. For those reasons the Commission needs to treat his evidence about his commitment to remain drug free with considerable circumspection. 156 In addition there was the episode in April of this year, which despite documented warnings to him about substance abuse and in particular alcohol, the applicant in one session drank what he told police to be a 750 ml. bottle of overproof rum, the alcoholic content of which is around 57.7 percent. This is an important part of the factual matrix which discloses an attitude towards substance abuse incompatible with his reinstatement. It was an act of extreme irresponsibility and occurred at a time when he knew these proceedings were coming up, which should have provided him with a strong motivation, but he goes and drinks an amount which would literally kill many people, who might not have the same level of tolerance to substance abuse that Mr Marshall has. 157 In summing up, Mr Murphy suggested that there was a number of key circumstances for the Commission to bear in mind. The first was the severity of what occurred and which is not denied and one can readily understand why Mr Marshall doesn't remember or doesn't want to remember, because in any view, what he did on that day was appalling and warranted a severe censure. There can be no suggestion that what he did, did not warrant termination. It was an appalling display where he attacked property, co-workers and put their safety at risk and in any view, there was no alternative but for dismissal. The after-the-event reconstruction that we now hear from him was never put at the time of the interviews with his employer, but has now merged with a bit of assistance from helpful professional involvement, that this was a cold turkey episode. That needs to be treated again with circumspection. Associate Professor Degenhardt's view, which should be preferred, says it is more likely than not, that what he did was a result of being on drugs rather than going cold turkey. Mr Murphy referred to the critical phase or difficult phase of going off marijuana which would be past a long time before the episode on the 4th June. Mr Murphy pointed out to the fact that the last time the applicant had tried to go off drugs, he went and sought assistance, but apparently not this time. The Commission is therefore entitled to conclude that he was not trying to go off drugs, he was off his face on drugs at the time, which is consistent with the professional evidence of Dr Degenhardt. 158 Mr Murphy submitted that even if the Commission accepted that the episode on the 4th of June, 2006 occurred because the applicant had taken himself off marijuana cold turkey, that does not get him past first base, as far as fairness and unfairness goes. The issue facing Sydney Water was the safety risk both to personnel and property and to the environment if this person poses the threat of relapse. Dr Degenhardt posed the proposition that there is a very high risk that Mr Marshall will return to cannabis use as she sets out on page 7 of her report and the reasons for that opinion, based on scientific data, not just impressions gained by talking with the man, which is Mr Rees' approach. Mr Murphy did not overly criticise Mr Rees for that approach, as he recognised it as his Clinical Psychologist approach and you sit around and talk and believe what you are told and you are looking for ways to excuse things. Dr Degenhardt took a more rigorous approach to this question of relapse, and her opinion is that the prospects are very high. 159 Mr Murphy pointed out that Mr Patrick Green of the CAM organisation was asked specific questions in respect to relapse and apparently avoided answering that question. 160 Mr Rees said in evidence that if the applicant does relapse it is inevitable that he will have another episode of the sort if not worse. 161 Mr Murphy referred to Exhibit 11 which was bought into existence based on the work of the American Psychologist, Mr Lesley Moray PhD. When one reads that report you come to the view that it is not just about a drug driven craze, but this person has underlying personality flaws that render him prone to violent outbursts of this sort. Mr Murphy instanced where the report asks "I threatened to hurt people" where the applicant has ticked "very true". All of the backtracking Mr Rees might like to do in the witness stand, you really can't believe that was because Mr Marshal is alleged to have been too honest, too frank, this is unbelievable. None of that backtracking by Mr Rees diminishes the evidence that leads to the conclusion that the risk of relapse is high and the consequences of relapse are inevitable. 162 Mr Murphy submitted that this was not a medical issue as suggested by Mr Strain, and there is no obligation on Sydney Water to treat it as a medical issue. Mr Marshall has put himself into the situation and where the conduct he exhibited leads to the conclusion that he had to be terminated. The Commission's intervention on the facts of this case are entirely unwarranted. 163 In reply, Mr Stain suggested that, insofar as the opportunity to respond at the 13th June interview was concerned, Mr Marshall was unable to respond properly until his interview as to the reasons why he acted the way he did on 4th June, because he did not know, until he contacted Blacktown Hospital some time later in a bid to try and find out why he acted in such an appalling way. Their immediate response was that withdrawing cold turkey from that amount of cannabis was the reason for his actions. At that stage the penny drops for Mr Marshall insofar as the violent behaviour of grabbing the employee Tanya Carter was concerned - this was not denied, but it was never put to him and there is strong doubt a Brown and Dunn point is to be made. It was never denied because it was never put to him. 164 Mr Murphy, at that stage, intervened to suggest that submission was wrong because the opportunity was there for Mr Strain to recall the applicant to deal with anything coming out of cross-examination, and there was no Brown and Dunn point available.

165 There is no suggestion, Mr Strain continued in reply, that the applicant made out the fact that he could not remember and he was not cross-examined about it. Nobody suggested that his evidence was false. Mr Nicholson gave evidence that on the balance of probability, he thought he was telling the truth, in generally not being able to remember incidents. 166 The court would accept that Mr Marshall has been drug free for the last nine months, he was not cross-examined otherwise. 167 He referred again to the consumption of the 750 ml. bottle of overproof rum raised by Mr Murphy and pointed out to the Commission that it was in a ten hour session, which is approximately two nips an hour, two drinks an hour. There was no evidence that that drinking would kill a man as suggested by Mr Murphy, and neither is it a flagrant disregard of his rehabilitation as suggested. 168 As to the report based on the work of Lesley Moray PhD, Mr Rees explained that report on the basis that the applicant's entries in the report should be looked at in the context that he still had uppermost in his mind the terrible incident in June, 2006 and Mr Rees almost disregarded the entire report. Mr Rees was the expert in the area and he said the report was over the top. This court should believe him.

169 There was no challenge in this case to the serious nature of Mr Marshall's behaviour on 4th June, 2006, which included flicking and wiping blood over Ms Carter. Such undisputed evidence would not normally attract any outcome from the Commission other than rejection of his application. The applicant's case however sought re-employment, despite what must be fairly described as appalling behaviour, on the basis that his actions were both involuntary and out of character. It also required acceptance of his evidence that his actions only arose from the commendable act of attempting to give up his drug addiction "cold turkey" without medical assistance. From those propositions other things flow in order to justify re-employment by Sydney Water.

170 The well established obligation upon the employer for a proper investigation, a heightened standard of proof (although still the civil standard - Wang and Crestell Industries Pty Ltd (1997) 73 IR 454 @ 463-464) and a shift of onus in the evidentiary sense in cases of dismissal for cause, i.e. in this case for serious misconduct, had to be considered in this case in the light of the fact that the applicant claimed not to have any recall and therefore not to be able to challenge the allegations because of the psychotic condition he was in during the events on 4th June, 2006. 171 Firstly, it has to be said that, if his memory loss is accepted as genuine, it should not mean that the accounts of witnesses affected by his conduct given to the employer's enquiry should now have any seriously diminished value, because some were not called to give evidence. In any event they were consistent with the direct evidence given by Mr Nieass. 172 Therefore, it should not be disputed that the employer was entitled to take into account the written reports attached to Mr Nicholson's affidavit, setting out the first hand account of Ms Carter along with others. In a statement given to her employer she made clear her fears of giving evidence against the applicant and the serious effect upon her sense of security at home. The Commission too, should have regard to matters in her written report to the investigation, when not denied by Mr Marshall. To do otherwise would be taking the shift of onus, in that line of authorities in respect to dismissal for serious misconduct as enunciated from time to time by the Commission, and as traversed in the pivotal observations of his Honour Mr Justice Hungerford included at pages 83-84 in his decision in Pastrycooks and Gartrell White No. 2, (1990) 35 IR 70, well beyond the boundaries of commonsense and would be a triumph of form over substance. In any event, there was consistent direct evidence of events from Mr Nieass, and the Commission has accordingly given appropriate weight to the other reports relied also upon by Mr Nicholson and Mr Ferrier.

173 The evidence given by Mr Nicholson puts beyond doubt the question sought to be established by Mr Strain in respect to procedural fairness. The Commission agrees with the proposition put by Mr Murphy of Counsel in his final submissions that Mr Marshall was accorded proper process, especially when provided in writing on 9th June, 2006 with the written allegations and when given the chance to have a support person present. 174 In arriving at that finding, I have not been able to accept the contention of the applicant's clinical psychologist, Mr Rees, offered in correspondence to the applicant's solicitors and reiterated in cross-examination that the applicant was somehow incapable; still being affected by the psychotic episode when receiving written advice of allegations on 9th June and when interviewed some nine days after the incident, i.e. on 13th June, 2006. My reasons for rejecting that proposition are apparent in my comments upon Mr Rees' evidence hereunder. They relate, inter alia, to the lack of specific medical evidence, from Mr Rees as to the applicant's condition, when little was volunteered as to how he could still be affected to impede his ability to put his best foot forward at interview. Mr Rees did not disclose details of Mr Marshall's medication, although other more general evidence by him suggested that such patients are treated for six weeks with valium. The Commission does not accept that he was not compos enough at that stage to have at least indicated to his interviewers that he was not feeling well enough to respond properly in his own defence. There was certainly no hint given to Mr Nicholson and Mr Ferrier on 13th June that he was still not feeling himself, except to advise that he was on medication to calm him down and according to Mr Nicholson's minutes of the interview, that he was in the hands of a Psychiatrist. Those minutes taken by Mr Nicholson gave no hint of inability to respond other than the claimed memory loss and indeed, he volunteered other information as to mitigation mentioned below, which at best could only pose a distraction to his interviewers away from the reason now relied upon. In any event, his response, that he simply could not remember, remained the same in these proceedings, so it is difficult to see how he could be prejudiced. 175 On the crucial issue of the applicant's credit, the Commission has focussed on matters highlighted by Mr Murphy, which included: (i) he failed to tell the committee of inquiry held on the 13th June, that he was suffering withdrawal symptoms as the genesis for his psychotic episode nine days earlier; (ii) that documentation, alluded to earlier in this decision, indicated that the applicant had not told the truth or tried to create false impressions - when claiming that he had been abstinent from cannabis since he had sought counselling and treatment from CAM in early August (although seeking to rectify this in his rebuttal affidavit when confronted with medical records attached to Mr Nicholson's affidavit); (iii) that his violent behaviour on the 4th June, 2006 was uncharacteristic, when in fact several previous incidents of actions and threats were exposed in evidence, and; (iv) that he had only used marijuana occasionally at parties prior to his accident in 1992, when his criminal/drug record showed otherwise. 176 These and other apparent disparities pursued by Mr Murphy of Counsel on behalf of the respondent are reflected in the findings below.

177 Related to my rejection of Mr Rees' evidence that the applicant was significantly still affected by his psychotic episode as at 13th June, the Commission has found it difficult to accept that as the reason for failing to tell the Sydney Water investigation of his withdrawal from marijuana and of it being the cause of his psychotic episode. He did not even venture what he later claimed to his health professionals, that he had refrained from partaking cannabis some three or four weeks earlier - a huge event in a drug users life. This can reasonably be expected to have naturally occurred to him as a mitigating factor, or at least as a favourable observation in defence against being dismissed. It is significant that he was able to produce other excuses at the interview including having an argument with his mother, (who had left the family home in late May), problems in respect of finances, and difficulties in communicating with management and, as mentioned, others were contained in Mr Nicholson's minutes of the interview. The fact that he was able to offer a range of excuses also tended to further negate the evidence of Mr Rees that the applicant was probably still suffering from withdrawal on 13th June following the episode on 4th June. That reasoning by Mr Rees was itself difficult to accept in the light of Dr Degenhardt's evidence of the period for reacting to withdrawal, which, inter alia, was to the effect that any adverse reaction time from withdrawal would likely to be well over with by 4th June, 2006, and combined with her evidence as to the more moderate effects of withdrawal. 178 Moreover, one would expect that Mr Marshall, who had some first hand experience with withdrawal from a drug addiction, (that is, in respect of his addiction to heroin, and later methadone), would have recognised the alleged problem of withdrawal of marijuana without the assistance of medication. He gave evidence of having to be hospitalised for several days for instance during the withdrawal from methadone, and being sedated in the process. Also, at his request, his employer had co-operated in the process of his recovery at the time. On that basis, one could be forgiven for the reasonable expectation that he would seek the assistance of his employer again, (knowing what an ordeal was ahead of him). But not having done so, he would surely be conscious that his behaviour on 4th June was the likely product of withdrawal symptoms or, again because of his past experience, he would have at least tentatively put that excuse forward. It would surely be a colossal irony for the employer to have to pay the price of the non-disclosure of his withdrawal problem, when no clue was given. This was sufficient basis for the Commission to reject Mr Strain's contention that the respondent, through Mr Nicholson and Mr Ferrier, should have somehow tumbled to his drug addiction and/or his withdrawal problems and referred Mr Marshall for rehabilitation. 179 As earlier mentioned, the employer was not able to seriously dispute Mr Marshall's claim of not being able to remember the crucial areas of his behaviour of 4th June, 2006, but the applicant's credibility was nonetheless very relevant to this and other more crucial matters relied upon by his legal representatives.

180 In respect to those key credibility issues - such as to whether the applicant is to be believed that he had gone "cold turkey" and had suffered the psychotic episode as a result of withdrawal, (as opposed to intoxication), the Commission was required to assess competing expert medical evidence. 181 Dr Degenhardt's evidence was clearly weighed against the withdrawal excuse, as shown earlier in the summary of evidence and pointed to the behaviour being more likely caused from intoxication. (Exhibit 9 refers). 182 The fact that no one actually observed him partaking cannabis before his psychotic outbreak on 4th June, such as just prior to the dramatic events when he could not be located when the alarm sounded in the control room is quite secondary in this case, where the employer relied instead upon the balance of probabilities implicit in Dr Degenhardt's report based upon research and expertise. His acknowledgement of regularly smoking cones before work and sometimes "around the corner" of the plant before work, and of being affected at work can also be regarded independently from De Degenhardt's analysis. 183 Mr Rees, who was called by the applicant to give evidence, on the other hand seemed confident as a Clinical Psychologist that his behaviour could be attributable to the withdrawal of cannabis without proper support. He did not however directly contradict Dr Degenhardt's timetable of when withdrawal reactions take place, which put the 4th June, 2006 well out of range during the three to four weeks since his withdrawal. Neither did he properly explain or expound on a medical basis, as to how a psychotic episode could manifest itself in such a gross way at the end of a three to four week period of abstinence. 184 The fact that the applicant had not been entirely honest either with Mr Rees or this Commission (addressed separately), is relevant to the appreciation of Mr Rees' evidence on this, and other points, given his acknowledgement that his expert assumptions were dependent upon Mr Marshall being truthful to him. 185 The significant differences of opinion between the expert evidence given by Dr Degenhardt for the respondent and Mr Rees for the applicant, has made it necessary for the Commission to make some overall observations as to the comparative reliability of their evidence. 186 Associate Professor, Dr Degenhardt gave cautious and measured responses to the various questions posed by the respondent's lawyers, as well as from Mr Strain under cross-examination. Her final observations were convincing in the impartial and balanced approach adopted by her, quite apart from her impressive credentials as an expert in her field of research. 187 She raised serious doubt as to the applicant's ability to refrain in the future from using marijuana. As earlier mentioned, she also made important observations casting doubt that the applicant's psychotic behaviour on the 4th June, 2006 could be put down to withdrawal symptoms as claimed by him and indicated that the withdrawal symptoms are relatively moderate and likely to have occurred at a much earlier phase than anywhere near the three to four week period claimed by the applicant.

188 Dr Rees on the other hand, whilst clearly an expert in his field and dedicated to the applicant's recovery, appeared too much as an advocate for his patient's case and my perception was that he attempted to diminish the problems of Mr Marshall, beyond the more arms length approach required in the circumstances. For instance, it should have been apparent to him that the applicant had misinformed him as to his period of abstinence from marijuana, claiming to have refrained over a much longer period than actually shown by the documentation obtained from CAM. Rather than concede that point, he was seen to too-readily gloss over this area of credibility of the applicant, along with other unfavourable aspects, where the Commission felt that greater circumspection was called for. Mr Rees' evidence as to how the Personality Assessment Inventory, Clinical Interpretive Report (Exhibit 11) completed in August by Mr Marshall, as authored by Leslie Morey, Ph.D. should be interpreted by himself and accepted by the Commission, was indicative of the lack of caution. In the end, his overly defensive attitude was seen to be illogical and not delivered convincingly, especially when the degree and length of his responses in that area are taken into account and were too dismissive of a litany of apparent contradictions to his observations in support of Mr Marshall. 189 Mr Rees was also seen to be too adventurous in claiming that the applicant had not shown any violent trends in the past and then again too dismissive when his attention was drawn by Mr Murphy to the applicant's criminal and drug record and his actions towards Ms Carter. 190 Indeed, my overall assessment has to be that, where Mr Rees' evidence contrasted or conflicted with that of Dr Degenhardt, I have preferred that given by Dr Degenhardt. Several important conclusions flow from that finding. These are dealt with on a piecemeal basis in the paragraphs following, as the issues arise. 191 Even if Mr Marshall suffered from a "cold turkey" withdrawal from cannabis, causing the psychotic episode on the 4th June, the real question arising from Mr Stain's key contention as to it being a medical condition was, as to whether the respondent, in relying upon the gravity of the episode and the need for a safe system of work for other employees as paramount issues, was justified in its more direct and conventional approach to obvious misconduct. I have concluded that the respondent's actions have been vindicated. 192 The argument that Sydney Water should not have dismissed the applicant, but sent him off for rehabilitation, required some supernatural insight from Mr Nicholson and Mr Ferrier, given that the applicant made no mention of his drug problem, let alone the withdrawal argument. Mr Nicholson's evidence was that he was ignorant of Mr Marshall's marijuana addiction, but even if he had been aware of the full circumstances, later claimed by him in this case, he would still have dismissed him for the reasons outlined in his affidavit. The Commission finds it unnecessary to sanction or to disagree with Mr Nicholson on that point, although Mr Murphy validly pointed out that this Commission requires such employees to be responsible for their actions, which in Mr Marshall's case were self inflicted and when over many years he had breached both the law and the employer's own policy as sent to him on 7th August, 2000 (Exhibit 15 "1"). 193 One matter included in the applicant's affidavit Exhibit 3, whilst not decisive, cast some doubt on the applicant's claim of not remembering anything which occurred on the 4th June. Included in the applicant's rebuttal affidavit was an answer to Mr Nieass' evidence of Mr Marshall claiming on the morning of 4th June to having a glock handgun and saying he intended to sort certain people out, which was taken to mean to use it against management. In his rebuttal affidavit the applicant claimed that his comment was in jest and that he believed it was accepted as such at that time. The difficulty for Mr Marshall in making that defence is that the threat was made on the morning of 4th June, which gives rise to at least two possibilities. One being that the applicant did indeed after all remember more than he was prepared to acknowledge of his less savoury behaviour at least earlier in the day of 4th June, 2006. The other, which springs to mind is that reference to possibly bringing the gun in to use on management showed the beginning of his psychotic episode. If he was merely joking as claimed, along with his much earlier reference to having friends in bikie gangs, it would demonstrate the extent to which the applicant had lost touch with reality and was prepared to flirt with violent notions. Such matters were consistent with other evidence of his threats and the like at work. This also goes to the risks of re-employment should he ever return to significant marijuana use and when combined with the tendency to violent behaviour exposed by his criminal record, casts doubt upon Mr Rees' insistence upon Mr Marshall not being a risk.

194 The applicant's other actions on the 4th June worth noting, as relevant to the claim of suffering withdrawal symptoms, was the evidence of Mr Nieass that the applicant had come to work with raw fish, for which he proceeded to make a batter and to cook for his colleagues earlier in the shift, indicative of a relaxed and trusting disposition at that stage. This would point to the episode leading to the violent behaviour of the applicant, to have arisen out of the blue, prompted by being found to have apparently abandoned his post when the alarm went off and his objection to Ms Carter, who was Team Leader, going to his area in his absence. 195 These two different aspects of the assessment of the applicant's behaviour that day call for a less than straight forward acceptance of the applicant's evidence, (that his withdrawal from cannabis lead him to the more radical behaviour). His description of his last memory, before breaking the glass window, of having seen his reflection in a window and reacting in an alleged spirit of self loathing, (according to Mr Rees' report) appears to be an oversimplification. It is curious that he did not recall the event immediately before that, of hounding and screaming abuse at Ms Carter. However, whilst worth noting these uncertainties, the Commission does not need to rely upon them, as there are more important findings as to the lack of reliability of the applicant's evidence.

196 Relying upon Dr Degenhardt's expert opinion, the Commission remained unconvinced that the applicant would stay off cannabis and present a low risk factor for other employees in future. The fact that Mr Green from the CAM did not respond to the respondent's question to him in this regard did not assist the claims made on behalf of the applicant in this regard. I do not believe that the peculiar circumstances of this case require a reversal of onus upon the employer to prove with any degree of certainty that he would resume using cannabis and the civil standard of proof of the balance of probabilities has been made out, sufficient to support the respondent's case on that point. 197 Mr Rees gave evidence that the applicant was at the lower end of the risk scale. He initially said that the applicant needed to stay off marijuana entirely, but quickly resorted to saying that he should not revert to the level of marijuana used that he had previously had. That too is relevant as to whether from hindsight, the employer's failure to treat the matter as a medical condition and allow a period for recovery was harsh, unjust or unreasonable. Dr Degenhardt's evidence is to be preferred that the applicant is more likely to relapse, especially given his previous history. 198 There are also difficulties surely with the offer by Mr Marshall to be regularly tested, given Dr Degenhardt's testimony on detection of cannabis and other drugs in the body. Her advice as to the short window of opportunity to test for other drugs, as opposed to the thirty day period for cannabis, gave rise to more questions than were addressed by the rather incomplete undertaking to have him regularly tested following re-employment. Mr Murphy raised a valid point as to the paucity of urine tests, done around March/May this year, with no results for the second test, which indicated a less than convincing effort by Mr Marshall and does not auger well for his undertaking to have regular tests if re-engaged, especially since he had the inducement of these proceedings. His excuse that he found it difficult to arrange since obtaining full-time employment is again not a good portent for the future if re-employed full-time by Sydney Water. 199 For greater caution, the Commission should also address the matter raised by Mr Strain that the applicant's behaviour on the 4th June was uncharacteristic. Again, Mr Murphy of Counsel for the respondent succeeded in demonstrating that this contention was unsustainable, given his criminal record involving altercations, even though not charged, using illegal fireworks at a railway location, although not igniting apparently, and resisting arrest (Exhibits 5 & 6 are relevant). Whilst these are relatively minor, the more important matters raised in respect of the applicant's conduct at work must be added which, inter alia, involved a bizarre incident with the applicant smashing a coffee cup onto his forehead resulting in bleeding, and then to erroneously accuse a supervisor in attendance at the time of performing an assault upon him to rid himself of that particular supervisor. The issue of the threat to bring in a glock handgun has already been mentioned, as had the incident of touching the employee Tanya Carter between the legs on the vagina. His threats to Mr Nieass on the day of the 4th June, along with earlier threats to a member of management, Mr Barton (although some having an element of hearsay and not strictly relied upon) are all matters which require some weight to be given to them and cannot be safely ignored by the Commission. 200 In further consideration of the key part of the applicant's case that he can abstain from drugs, even if the Commission accepts that it is conceivable that the applicant has not indulged in marijuana since around September last year, the incident involving alcohol as recently as April this year is a danger. His consuming of the bulk of a 750ml bottle of overproof rum, said to be around 56% alcohol by Mr Murphy, (not seriously disputed Mr Strain), showed a certain unacceptable recklessness of character as emphasised by Mr Murphy in his final submissions and as pursued during cross-examination. Dr Degenhardt's scepticism of his ability not to be adversely affected by alcohol in his quest to stay off cannabis, together with his statement to Mr Green from the CAM that he was concerned not to take up alcohol as an alternative addiction, left the Commission with serious concerns for his capacity to mend his ways and not to present a future risk to fellow employees.

201 I have rejected Mr Stain's adverse reflections upon both Mr Nieass and Mr Nicholson's evidence, which from my observations of them under pressure is found to be totally genuine and measured in both instances. In Mr Nieass' evidence in particular, the additional matters arose naturally and were logically expanded when prompted in cross-examination and appeared to be in an earnest desire to set the record straight. The fact that not all of this evidence was included in his witness statement, can be accounted for by a reluctance shown to give evidence against a fellow employee and concentrating upon the key events of 4th June when preparing his affidavit. There was also some concern about the concept of dobbing in another employee in that workplace, and I believe that this also explains why matters were not previously reported. It took some courage to agree to give evidence and Mr Nieass was obviously conscious of the previous positive aspects of working with Mr Marshall over the years, despite it being a bumpy ride at times, and the threats against his family on the last day. 202 The true state of the applicant's credibility, upon which much was hinged, was, as revealed by Mr Murphy, reflected when the applicant was found to have lied in paragraph 21 of his affidavit in claiming that prior to his accident he had not taken drugs except marijuana "very occasionally at parties". Likewise, as already traversed, the applicant originally attempted to mislead the Commission, and apparently his psychologist in respect to the period on which he had abstained from marijuana, since attending rehabilitation sessions at CAM. These two matters are surely relevant not only to his revised claim of having remained off cannabis since late September last year, but put in jeopardy the overall reasoning behind Mr Rees' conclusions. 203 More generally, the applicant's credit suffered badly from a demonstrated reluctance to acknowledge the obvious when it came to matters associated with both his criminal and drug record, when taken to them in cross-examination (as extracted from Exhibits 5 and 6). 204 His lack of credibility has proved fatal to the unconventional argument put throughout his case. The applicant has been shown to the Commission as being unworthy of his employer's trust. On the balance of probabilities the Commission is satisfied that the risk of the applicant re-offending when it comes to the use of marijuana, is therefore too much of a gamble for his employer and fellow employees to undertake if he was re-engaged by Sydney Water. Summary 205 Whilst I have had regard to the extraordinary situation involving the applicant and his long seventeen and a half years of employment, it has been seen as an unreasonable requirement that this employer should have to regard the situation as capable of being addressed by medical solution, for the reasons outlined and which showed that the other matters relied upon by the applicant's case were without foundation and unmeritorious. 206 The application is therefore dismissed.

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