110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant:
In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this:
"This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody."
111 The respondent submitted that reinstatement should not be ordered because the relationship of trust, confidence and good faith between the appellant and respondent was damaged beyond repair; the misconduct was serious; the appellant's reinstatement would have a detrimental effect on the safety and welfare of other employees; the pornography found was of a graphic and sordid nature and the appellant considered the pornographic material to be erotic.
58 If any return to work relief is to be ordered in this case, I do not consider that it could be characterised as reinstatement. Rather the effect of what was argued was that the applicant should be re-employed to a position which is different (although the degree of difference is contested) to that which he held before he was dismissed on 23 December, 2004. Viewed in this way, and in light of how the applicant's case evolved, reinstatement to his former position is not appropriate. Put simply, the applicant has sought to be re-employed, but without the tasks which were said to give rise to stress problems and panic attacks and which were said to have led to his drinking problem and ultimately the incident which resulted in his dismissal. These were the conclusions of Macdonald C which were undisturbed on appeal. However, the applicant now says he can perform some occupational health and safety duties, but not high level occupational health and safety duties, such as chairing the Occupational Health and Safety Committee or preparing reports.
59 What is then to be considered is the state of the applicant's health. I found the medical evidence of Dr Klug to be equivocal; albeit for understandable reasons. The applicant saw Dr Klug in July and September, 2006 when his alcohol consumption was negligible and where he had not had any panic attacks since 2004. Dr Klug concluded that there was no evidence of a psychiatric disorder and he could not conclude with certainty that the applicant's alcohol dependence between 2002 and 2004 arose from work related stresses.
60 However, in my judgment, the applicant has demonstrated, beyond doubt, that he is a changed man. He has been rocked by this experience and I accept he has dramatically changed his behaviour. He came before the Commission offering not only not to drink whilst at work, but promising not to drink alcohol at all and to be subject to random breath testing should he be reinstated. His wife, who has also been clearly affected by this experience, offered to monitor his conduct and report any problems to his doctor. While these are commendable undertakings, I do not consider that this Commission should be the arbitor of the responsible consumption of alcohol outside of work hours or where the socially responsible consumption of alcohol outside of work in no way impacts on a person's work performance. Leaving aside these ethical considerations, in my view, orders of the kind envisaged by the applicant raise serious issues of enforceability. Accordingly, I do not intend to make orders or recommendations of the type referred to in Dobbie, notwithstanding that, like here, the undertaking in Dobbie was given voluntarily by the applicant and taken into account by the Commission in determining that matter. Nevertheless, I would expect no less than the applicant's ongoing responsible conduct and, in this regard, note his undertakings.
61 In addition, I believe it would be quite unreasonable and unrealistic to expect the respondent to invest considerable sums of money in equipment, training and testing for a single individual. Whether a more comprehensive company-wide approach to alcohol and drug testing is desirable is a matter which the respondent may care to consider - as many employers have done. Had there been such a policy in place, which may have avoided the applicant's dismissal is, of course, purely speculative. I note however, that the only real attempt to enlist help and support through the respondent's EAP program occurred on the night of the incident. Whether he and his wife had earlier discussed assistance is really not the point. He only sought to do so when faced with a likely crisis at work. This was notwithstanding an apparent problem stretching over two years which was well known to Mrs Brunt, if not others, including his own doctor.
62 It was not unexpected that Mr Moses focussed on the applicant's failure to recognise, even during the present proceedings, that he had stolen company property. Mr Moses also argued that there was no guarantee the applicant would not engage in his previous behaviour and put safety at risk for himself and others at the workplace. While I accept there is some validity to Mr Moses' arguments going to the respondent's alleged loss of trust and confidence in the applicant, it seems to me that these submissions should be viewed in the context of the applicant's changed behaviour and undertakings. As I have already said, I believe him to be a dramatically changed individual. In addition, I do not consider that there has been such a breach of trust in the employment relationship as to mitigate against re-employment.
63 What must be accepted is that this is a very unique case in which the question of remedy has come many months after the case was originally heard and decided. At the present time, I am satisfied that the applicant's personal and other circumstances are materially different to that which existed two years ago. In addition, I do not regard the significant passage of time since the applicant's dismissal as being an impediment to re-employment in circumstances which I will shortly outline.
64 Accordingly, I consider that a persuasive case has been made out for the re-employment of the applicant on conditions, pursuant to s 89(2) and (8) of the Act. I would note, in particular, that the evidence disclosed, inter alia that: