Respondent's Reply to Appellant's Submissions
72In reply to the submissions made by the AWU as to Mr Walters lack of specific training, it was submitted that he received training on the Code on 23 October 2006 and 1 March 2010, with the latter training covering the entirety of the Code , including drugs and alcohol (as confirmed by Attachment A to Mr Healy's statement). He also underwent drug and alcohol briefings and training on 8 October 2003 and 31 March 2004. The submission that he did not receive specific training on compliance with the Procedure for a number of years misrepresented the extent and relevance of the training that he had received.
73Further, as a 3.1 Construction Worker he was required to "utilise competencies from both formal training and on the job learning...and carry out tasks in a safe and effective way to meet applicable standards." Mr Walters competencies were evidenced by his possession of a RailCorp Rail Safety Worker Competency Card, valid from 2 February 2010. His Personnel History Report also showed that he held Protection Officer Level 1 and Level 2 status and was qualified in Senior First Aid at the time of his positive alcohol tests. These competencies all required him to have responsibility for safety and risk management at all times - including a duty to be alcohol free at work.
74Mr Walters was also required to undergo regular health assessments (including drug and alcohol tests) as a Rail Safety Worker Category One, to ensure fitness for duty. He was well aware of this process, particularly as he had been removed from safe-working duties in 2008 after self-identifying that he was suffering from depression.
75It was submitted that it is unreasonable to suggest that Mr Walters did not have a proper understanding of what was required of him to comply with the Procedure (even having received specific drug and alcohol training in 2004).having regard to his competencies, experiences in a safety critical role and previous training.
76The submissions made on behalf of Mr Walters that he had not received specific training about calculating the length of time it takes for a person's alcohol level to reduce after drinks are consumed were refuted on the basis that the Code clearly sets out that it "....is an individual's responsibility to ensure that they are drug and alcohol free at work". In any event, material was available to RailCorp employees seeking information on drug and alcohol matters and the RailCorp Intranet provided information, including 'Frequently Asked/Answered Questions', and a pictorial guide, to assist with the calculation of standard drinks. Much of this material was required to be placed on work notice boards and had previously been posted to employees at their home addresses.
77Further, it was also open for Mr Walters to speak to his managers and/or utilise RailCorp's Employee Assistance Program (EAP) if he had any specific concerns, as he had done in the past.
78It was submitted that RailCorp had taken reasonable steps to ensure that Mr Walters received training and/or had access to information to assist his compliance with the Code and the Procedure .
79It was submitted that the seriousness of the breach warranted dismissal as Mr Walters' position at RailCorp was such that awareness of risks from drugs and alcohol was an ongoing feature of his daily work . It could not be said that he did not have an awareness of such factors and indeed, his experience belied any suggestion that his breach was unwitting. By reporting for duty at 6am after consuming eight or nine schooners of beer up to midnight the prior evening, he was taking a serious and conscious risk for which dismissal was appropriate. His blood alcohol concentration two and a half hours after commencing rail safety work was 0.052 - almost three times the acceptable limit set out in both the Code and the Procedure . Almost four hours after commencing work his blood alcohol concentration was still high at 0.041. Such levels clearly rendered his breach as serious.
80It was further submitted that the fact that the Mr Walters claimed to have been performing labouring duties on a quiet section of the rail corridor in the vicinity of five others did not diminish the severity of his breach and in fact increases the seriousness. He was responsible for his own safety and held a duty of care for the safety of others who might be affected by his acts or omissions at work. His actions were sufficiently serious to result in a fine for breaching the Rail Safety (Drug & Alcohol Testing) Regulation 2008.
81RailCorp also maintained that the breach was sufficiently serious to warrant dismissal. RailCorp's first concern was safety, and breaches of the Procedure raised safety risks to members of the public and all employees. Dismissal of Mr Walters in the circumstances was necessary to ensure that he did not re-offend and to send a clear message to other employees that serious (and/or ongoing) breaches will be treated seriously.
82It was submitted that Mr Walters had admitted to periods of poor attendance, which he attributed to struggling with depression (in 2008) and then gambling (in 2010). Following his positive alcohol tests RailCorp referred him for assessment by Dr Sarah Moss at Executive Health Solutions. Her report of 19 April 2011 (Exhibit 1-D) sets out his alcohol history as reported, to her, by him. He Had admitted to taking days off work "a few times" due to excess alcohol saying, "I thought I was over the next morning". Her assessment was that Mr Walters met the criteria for alcohol abuse and that he was a regular binge drinker drinking alcohol at harmful levels.
83The AWU on behalf of Mr Walters had relied on the June 2011 report of Kelly Rochow, Clinical Psychologist, which outlined that he had a history of alcohol abuse, including two DUI charges with one within the last three years. These were listed as risk factors to relapse which should not be ignored, despite his participation in counselling as required under the RailCorp Drug and Alcohol Rehabilitation Program.
84It was submitted that while Kelly Rochow concluded, as at June 2011, that Mr Walters was a low risk of relapse, his history still gave cause for concern, and the only surety against the possibility of him re-offending was dismissal.
85RailCorp acknowledged its failure to comply with clause 36 of the RailCorp Enterprise Agreement 2010 but submitted that Mr Walters was afforded procedural fairness in all other respects as follows:
The Investigator notified him that a disciplinary investigation was being conducted on 4 April 2011;
He utilised the opportunity to provide written responses and attend an interview throughout the disciplinary investigation;
The matter was referred to the DRP on 30 June 2011 and he was notified of the preliminary recommendation to dismiss him on 12 August 2011;
86In closing submissions Ms Baxter referred to relevant evidence emphasising that the breach in this instance was incredibly serious for a number of reasons. It was a high reading (as referred to above) and his behaviour showed an irresponsible disregard for his own health and the safety of others. His evidence when he was asked whether he turned his mind to stopping drinking the night before was, "Well, that's why we stopped drinking at midnight". He also suggested that for him 5 1/2 hours sleep before a 6 am shift and having no food was okay. This demonstrated that even now he did not have an appreciation of the dangers associated both with his drinking and the amount of alcohol he consumed, even after having participated in drug and alcohol counselling.
87Further he admitted knowledge of the policies, awareness of his responsibilities and had been tested many, many times, estimated at about 100 and that 9 out of 10 shifts there would be a drug and alcohol tester on-site. That showed that RailCorp took its responsibilities for a drug and alcohol free workplace very seriously and Mr Walters could not deny that he was aware of the process.
88It was of concern that Mr Walters suggested he had not undergone drug and alcohol specific training in recent years. Given the nature of his responsibilities and admissions made as to his role as a Protection Officer it was unreasonable to suggest he had no awareness because he hadn't had training in the last couple of years. He had had training and RailCorp had discharged its duties in that regard.
89It was also of concern that he had never informed RailCorp that he had issues with alcohol previously. RailCorp was happy to assist him when he had problems with depression and gambling. He self-identified on those occasions and could have done so again and was aware of the process. He had never tested positive but had admitted to avoiding a test and was lucky to have only been counselled, he had also called in sick a few times. He also could not remember the contents of a First Aid Certificate and it was submitted that one was being trained on how to treat a victim of drug and alcohol then there was an implication that dangers existed.
90Reference was made by the AWU to Kelly Rowchow's Report and her view that he was a low risk of relapse having regard to the factors that she took into consideration after completing five sessions of counselling. Also listed were the risk factors which she acknowledged was still there, a history of alcohol abuse which included two DUI charges, one within the last three years. Ms Baxter did not believe that Ms Rowchow was in possession of the Report of Doctor Moss as annexed to Mr Healey's statement in Exhibit 2.
91In closing submissions Ms Baxter referred to relevant evidence emphasising that the breach in this instance was incredibly serious for a number of reasons. It was a high reading (as referred to above) and his behaviour showed an irresponsible disregard for his own health and the safety of others. His evidence when he was asked whether he turned his mind to stopping drinking the night before was, "Well, that's why we stopped drinking at midnight". He also suggested that for him 5 1/2 hours sleep before a 6 am shift and having no food was okay. This demonstrated that even now he did not have an appreciation of the dangers associated both with his drinking and the amount of alcohol he consumed, even after having participated in drug and alcohol counselling.
92Further he admitted knowledge of the policies, awareness of his responsibilities and had been tested many, many times, estimated at about 100 and that 9 out of 10 shifts there would be a drug and alcohol tester on-site. That showed that RailCorp took its responsibilities for a drug and alcohol free workplace very seriously and Mr Walters could not deny that he was aware of the process.
93It was of concern that Mr Walters suggested he had not undergone drug and alcohol specific training in recent years. Given the nature of his responsibilities and admissions made as to his role as a Protection Officer it was unreasonable to suggest he had no awareness because he hadn't had training in the last couple of years. He had had training and RailCorp had discharged its duties in that regard.
94It was also of concern that he had never informed RailCorp that he had issues with alcohol previously. RailCorp was happy to assist him when he had problems with depression and gambling. He self-identified on those occasions and could have done so again and was aware of the process. He had never tested positive but had admitted to avoiding a test and was lucky to have only been counselled, he had also called in sick a few times. He also could not remember the contents of a First Aid Certificate and it was submitted that one was being trained on how to treat a victim of drug and alcohol then there was an implication that dangers existed.
95Ms Baxter also submitted that the Board should not place great weight on the cases relied on by the AWU on behalf of Mr Walters as unlike the Workplace Relations Act which was explicit in relation to considerations as to whether a termination is harsh, unjust and unreasonable the TAB Act was not explicit, and can take such matters into consideration as it sees fit as per Dubhihar v Transport Appeal Board and Anor [2005]NSWSC811 where it was considered that the task of the Board was to determine whether the punishment imposed by RailCorp in relation to the misconduct findings was appropriate in the circumstances.
96In response to questions from the Board as to one of the alternative penalties put forward by the AWU on behalf of Mr Walters, that being regression, Ms Baxter indicated that she had no instructions and it was difficult to identify what selection criteria Mr Walters would match. It was reiterated that RailCorp considered that an appropriate alternate remedy was to allow Mr Walters the opportunity to resign.
97Ms Baxter rejected the submission made that Mr Walters performed a self-assessment on that day suggesting that the self-assessment he made was an irresponsible one particularly where he knew because of his experience in the role, his exposure to drug and alcohol testing, the chances of being tested and getting caught as he had obviously called in sick on previous occasions and also not attended on an occasion to avoid testing officers on site.
98It will Ms Baxter also submitted that the Board should not place great weight on the cases relied on by the AWU on behalf of Mr Walters as unlike the Workplace Relations Act which was explicit in relation to considerations as to whether a termination is harsh, unjust and unreasonable the TAB Act was not explicit, and the Board could take such matters into consideration as it saw fit as per Dubhihar v Transport Appeal Board and Anor [2005]NSWSC811 where it was considered that the task of the Board was to determine whether the punishment imposed by RailCorp in relation to the misconduct findings was appropriate in the circumstances. Ms Baxter also distinguished the cases relied by the AWU in comparison the issues arising in this appeal.
99Ms Baxter also rejected the analogy that Mr Falconer had drawn that it was "the behaviour of men not angels" that should be applied, indicating that the general reference relied on had arisen in the context of a case dealing with bad language in the workplace and was essentially not relevant to the issues in this appeal.
100It was also submitted that the impact of reinstating Mr Walters would be the risk, and the very serious risk of the likelihood of participating in further safety breaches and that wasl certainly the main factor that went to the public interest against reinstating him.
101It is submitted that was it was unreasonable for the AWU to suggest that RailCorp should be subjecting employees to drug and alcohol training on a yearly basis or certainly on an unreasonably frequent basis. Also Mr Walters agreed in cross examination that at the commencement of shifts there are briefings where employees are asked if they are okay for drug and alcohol so that is clearly an ongoing daily issue within the workplace. Mr Walters had received drug and alcohol training and other training, although some of it was not particularly recent, that involved the need for him to be aware of drug and alcohol matters.
102Ms Baxter submitted that it was a very simple concept for employees to understand, and particularly RailCorp was well known for its strictness in relation to drug and alcohol matters, that there was a requirement to be drug and alcohol free at work and if you were safety worker then that had to be taken even more seriously.
103In response to questions from the Board as to one of the alternative penalties put forward by the AWU on behalf of Mr Walters, that being regression, Ms Baxter indicated that she had no instructions and it was difficult to identify what selection criteria Mr Walters would match. It was reiterated that RailCorp considered that an appropriate alternate remedy was to allow Mr Walters the opportunity to resign.
104Ms Baxter concluded by submitting that RailCorp maintained that Mr Walters had committed serious breaches of RailCorp's Code of Conduct and the RailCorp Drug & Alcohol Policy & Procedure warranting dismissal and the Board should not alter the decision and should disallow the appeal.