HISTORY IN THE COMMISSION
4 The history of Mr Sullivan's claim in the Commission reveals detailed care and attention to Mr Sullivan's complaints. That is not to say that, even with that care and attention, that errors cannot arise, but this is certainly not an instance where his complaints have been dealt with on a cursory basis.
5 It is appropriate to make this point because it is clear that the first respondent has participated in requirements dictated by that process, including the fact that it is generally a costs free jurisdiction. While the form of review is appropriate, the first respondent should not be required to continue to defend claims which are incomprehensible.
6 As the original decision in Sullivan v North West Crewing Pty Ltd [2015] FWC 8559 reveals, Mr Sullivan was employed as a deckhand for Westug Pty Ltd from 12 July 2011 until his dismissal effective on 3 August 2015 on grounds of serious misconduct. (His employer has always been treated in the Commission as being Westug. The only evidence is that the first respondent is contracted by Westug, which in turn is contracted by Pilbara Iron Pty Ltd to provide marine towage services. Pilbara is part of the Rio Tinto Group. The parties have treated Mr Sullivan's employer in the Commission as being Westug.)
7 The serious misconduct was that on 23 July 2015, he tested positive to methylamphetamine in a random drug and alcohol test. (Mr Sullivan challenged the validity of the test.) He was paid six weeks salary in lieu of notice.
8 The decision records that it was not in dispute that Mr Sullivan's employment was covered by the North West Crewing Australia Pty Ltd Enterprise Agreement 2013. The termination was at the initiative of the employer and related to conduct, not performance. The issues related to the positive drug test were the sole reason for termination. It was not for reasons of redundancy.
9 The decision also notes that it was accepted that allegations were put to Mr Sullivan and that he had the opportunity to respond to those allegations at meetings on 30 July and 3 August 2015. There was no challenge to the fact that his responses had been considered prior to making a decision to terminate his employment. Mr Sullivan was represented by the Maritime Union of Australia (MUA) at both meetings.
10 Numerous complaints against various people have since been raised by Mr Sullivan in many different documents. Some of those complaints appear to challenge the concessions and findings recorded above. But particularly at first instance, Mr Sullivan suggested there was unfairness because limitations were placed on the extent to which his representative could intervene at the meetings. That was a matter that was considered and rejected by the Commission. The main issues in contention were whether or not the positive drug test was a harsh or disproportionate reason for dismissal without warning.
11 The Commission took into account that the work of a deckhand is hazardous and requires employees to be fit and alert. One of Mr Sullivan's jobs was to keep watch in a dangerous environment involving very large vessels and other tugs. Mr Sullivan, however, contended that he had never conceded that he had knowingly taken methylamphetamine whilst in Bali shortly before resuming active employment. He denies that he admitted taking illicit substances in the past and denied that he said that he abused his prescription medicine by taking extra tablets when going out. He said that the samples were not taken in a secure and appropriate manner and the outcome of the test should not be accepted as proof that he had taken methylamphetamine. He contended that based on Westug's own policies, a first positive drug test did not constitute a valid reason for dismissal, but rather a warning was the appropriate outcome. That sensible argument was closely addressed by the Commission.
12 The Commission also considered Westug's submissions, which were to the effect that the drug test was adequate evidence that Mr Sullivan knowingly attended work whilst affected by drugs. Westug said Mr Sullivan conceded that he may have taken methylamphetamine whilst in Bali and that he may have abused prescription medicines and taken illicit substances in the past. Westug argued that its policies with respect to drug and alcohol use and fitness for duty were well advertised, understood and implemented. It said breach of reasonable drug and alcohol policies was a valid reason for dismissal, particularly having regard to the hazardous environment in which Mr Sullivan and Westug operated and its obligations to regulators and clients.
13 The Commission agreed that serious legal and business obligations applied to Westug in respect to Occupational Health and Safety (OHS) and that there were serious consequences for breaches.
14 Numerous other matters were raised in the first hearing and considered carefully by the Commission. Although Mr Sullivan has complained about lack of procedural fairness, it is clear that the Commission took very considerable care, as the passages at [22] and [23] below reveal:
[22] As Mr Sullivan was not represented in this complex case I prepared a draft summary of issues for the parties to consider in advance of the hearing. After hearing from the parties I amended the draft and I adopt [sic] the section "Agreed Summary of Issues" above and I note that it was agreed to by the parties. Mr Sullivan was represented by the MUA at the meetings leading to the dismissal but he was not represented in his unfair dismissal application.
[23] After hearing the evidence I decided to assist Mr Sullivan in making his final submissions by putting to Mr Sullivan my preliminary views concerning each of the matters in factual dispute in paragraphs 19 and 20 above (except for 19(f) in respect to which I sought further submissions from Westug). I provided Mr Sullivan with the opportunity to respond to my preliminary views in respect to each of those matters and I have considered his responses in reaching my final conclusions on the disputed facts as set out below. I then provided the parties with the opportunity to make further submissions.
15 The Commission found (at [24]) that Mr Sullivan accepted that he received an email in December 2013 that advised him of 'your New Terms and Conditions effective 18 December 2013', which included the Enterprise Agreement approved by the Commission on 11 December 2013. (This is relevant to an oral argument raised for the first time in this Court in the summary judgment application that the employment issues were not dealt with under the correct enterprise agreement.)
16 The Commission found (at [37]) that Mr Sullivan conceded that he may have been exposed to drugs in Bali prior to his return to duty on 23 July 2015, but he denied that he had knowingly taken methylamphetamine. The Commission was satisfied (at [53]-[63]) that there were no issues affecting the integrity of the collection and control of the samples, the testing process or reporting. There were lower levels of methylamphetamine in a later test, but, according to the Commission (at [72]), that was caused by the time lag and the dilution by water consumption. The Commission was satisfied on expert evidence that there was no inconsistency between the results.
17 The Commission closely considered the question of whether summary dismissal for a 'first strike' was consistent with Westug policies, concluding (at [84]) as follows:
The Fitness for Work Procedure is in my view unambiguous about the disciplinary consequences for a first positive drug test above the cut off limits in AS/NZS 4308. The Procedure uses the terms "will" and "shall" to describe the disciplinary outcome of a first and final written warning. This is then reinforced in the "Disciplinary Action Table".
18 The Commission also found (at [112]):
• Mr Sullivan worked in a safety critical environment.
• Serious legal and business obligations apply to Westug in respect to OHS and there are serious consequences for breaches.
• Mr Sullivan was aware that he was subject to random drug tests and that a positive drug test would result in a disciplinary outcome.
• Mr Sullivan had been provided with the relevant policies.
• Westug took reasonable steps to ensure that Mr Sullivan was aware through both publicity and training that he should not work when under the influence of drugs and that it was his responsibility not to work when he was unfit to do so.
19 The Commission specifically examined the question of whether the decision to terminate was harsh or disproportionate given the Westug policy that employees should be given a warning for a first positive drug test. In relation to this assessment, the Commission said (at [130]-[134]):
[130] I would have [concluded that the decision to terminate was harsh or unfair] if it were not for:
• The risks to the health and safety of others associated with Mr Sullivan's admission that he misused his prescription medication when not at work.
• My finding that Mr Sullivan was knowingly unfit whilst at work on 23 July 2015 and this was contrary to clear and well publicised policy that employees are not to attend work when unfit and are required to advise their supervisor if unfit.
[131] I also consider that Mr Sullivan has unreasonably sought to avoid taking responsibility for the positive methylamphetamine test. I consider it inherently unlikely that a single instance of accidental exposure four days earlier would result in a positive test almost ten times the cut off limit in AS/ANZ 4308 and that Mr Sullivan would remain unaware that he had been exposed. I have found that Mr Sullivan did not disclose all relevant information when asked whether or not he had taken methylamphetamine in the period prior to working on 23 July 2015. Mr Sullivan has maintained this approach as illustrated by the extraordinary lengths he has gone to in seeking to discredit the test outcome.
[132] Mr Sullivan submitted that he was treated inconsistently to other employees. Mr Sullivan did not provide any evidence to support the claim of inconsistency. Westug did provide evidence that in respect to the three employees who had tested positive to methylamphetamine, two had resigned their employment and Mr Sullivan was the third employee. Westug gave evidence that the only other positive test related to cannabis. Having considered the evidence of the differing circumstances I am not satisfied that there is any basis to conclude that there has been inconsistent treatment.
[133] I am satisfied that there was a valid reason for the termination and that the termination was not harsh or a disproportionate response and that the procedure followed was fair. The restrictions placed on the MUA representatives did not result in significant unfairness. I am satisfied that there are no other relevant factors. I found earlier and it is not disputed that Sections 387(b), (c), (d), (f) and (g) of the Act are neutral factors in this case and that Section 387(e) is not relevant because the dismissal related to conduct not performance.
[134] Having considered all the matters in specified in Section 387 of the Act I am not satisfied that the dismissal was harsh, unjust or unfair.
(emphasis added)
20 On an application to appeal in Sullivan v North West Crewing Pty Ltd [2016] FWCFB 1068, the Full Bench also examined the reasons given following the first hearing closely and examined the principles applicable to an appeal from a decision arising from an application pursuant to s 394 of the Fair Work Act 2009 (Cth) recording the following (at [10]) (footnotes omitted):
[10] The principles applicable to an appeal from a decision arising from an application pursuant to s.394 the Act have been stated on many occasions. A Full Bench of this Commission has succinctly summarised the principles as follows:
"[6] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission's powers on appeal are only exercisable if there is error on the part of the primary decision maker. There is no right to appeal and an appeal may only be made with the permission of the Commission.
[7] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[8] In the Federal Court Full Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as "a stringent one". The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
"... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters."
[9] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal."
(references omitted)
21 The Full Bench concluded that the Commissioner provided a comprehensive and balanced consideration of the evidence and made findings of fact. The Full Bench concluded (at [12]):
Having reviewed the material that was before the Commissioner and his Decision (in which he provided a comprehensive and balanced consideration of the evidence and made findings of fact) we are not satisfied that there is an arguable case of appealable error.
22 Importantly also, the Full Bench recorded the following (at [14]) (footnotes omitted):
It is likely that Mr Sullivan believes that the Decision at first instance manifests an injustice, or the result is counter intuitive. However, it seems to us that the appeal was simply being used as a vehicle to rerun the case that had been conducted before the Commissioner in circumstances where Mr Sullivan is dissatisfied with the decision at first instance. That is not the purpose of an appeal. The public interest test is not satisfied by a preference for a different result.