Background

On 7^th April 2018, the Stevedore purchased five (375 ml) cans of Wild Turkey on his way to work for an evening shift. Within the first half hour of his shift he drank at least four of the five cans of Wild Turkey and sent a text message to a fellow worker (a Crane Driver), which read “Tell my family I love them with all my heart, please, and I’m sorry”. The Crane Driver notified his Team Leader who then attended the work site and observed the Stevedore standing beside an open hatch and spent about half an hour “talking him down”.

The Team Leader did not suspect that the Stevedore was intoxicated and allowed him to return to work. The threat of suicide was not reported to more senior management.

Later in his shift the Stevedore was selected for random testing and had a BAC reading of 0.118%.

Dismissal 

The Stevedore attended a meeting with his support person, the company’s General Manager, Operations and Human Resources Manager on 12^th April 2018. He indicated the reason for his BAC reading was he had gone to lunch to celebrate his birthday and his friends had spiked his drinks. He was dismissed during a meeting the next day for breaching the company’s AOD Policy.

Two days later the Stevedore wrote to the General Manager, Operations claiming he lied when providing explanations about the events and set out what he claimed to be the truth. He admitted he consumed alcohol at work, wrote about his low mood on that day and sought to explain his poor decisions by describing matters that were distressing and deeply personal to him.

The Decision

In finding the company had a valid reason for dismissal, the Commission noted it operates in a safety critical environment and the Stevedore’s role was crucial to ensuring a safe work environment. While the Commission accepted he was not provided with a copy of or trained in the AOD Policy, it found that no employee needs this to understand drinking at least four cans of Wild Turkey at work is inconsistent with what their employer expects of them. 

The Commission considered the Stevedore’s diminished mental state at the time in determining whether the conduct was sufficiently serious to justify dismissal, but was not satisfied on the evidence (which did not include any medical evidence) that he was unable to understand the wrongfulness of his actions.

In considering other relevant matters, the Commission took into account the Stevedore’s 23 years’ service, his unblemished employment record and the company’s inconsistency of treatment for breaches of the AOD Policy. Further, the Commission considered the fact that the threat of suicide was not reported up the line and the Stevedore was returned to work evidenced systemic failures in the company’s work health and safety practices. It said that had the right interventions occurred at that stage, the Stevedore may have been removed from the workplace and ceased to be a risk to himself and other employees, could have been medically assessed and may not have been dismissed. However, the Commission also considered the Stevedore was not truthful in his explanation about the events and the company has a legitimate interest in sending a signal to employees about the importance of safety and intoxication at work is an unacceptable safety risk.  

While not relevant to a determination about whether the dismissal was unfair, the Commission said the company’s breach of its workplace health and safety obligations was of great concern. Also of great concern was that nothing had been done in terms of the company’s processes if employees threaten to commit suicide at work. At the hearing the company’s General Manager, Operations and Human Resources Manager admitted they had not taken any action since the event (some 31 weeks earlier) to ensure if employees threaten to commit suicide at work, the threats are immediately reported up the line and employees are not returned to work. The Commission considered this to be a “chilling admission of failure on both their parts” and noting the lack of action referred the decision and other relevant material to the compliance unit of SafeWork NSW.

Lessons for Businesses

Employers must, so far as reasonably practicable, provide and maintain a working environment that is safe and without risks to health, which includes psychological health.

How we can assist

Raise the occupational health and safety (OHS) standards at your workplace to meet regulations with the expertise of our health, safety and wellbeing consultants. Find out more about how we can support you with health and safety compliance on our website.

Fair Work Commission Decision Daniel Racek v DP World Sydney [2019] FWC 772 (8 February 2019)

Written by Victoria Fijalski, Workplace Relations Consultant