Dismissal upheld, but employer criticised over handling of WHS obligations in relation to suicidal employee and referred to SafeWork NSW

In Daniel Racek v DP World Sydney [2019] FWC 772, an employer was severely criticised by the Commission for allowing an employee to return to work after an incident in which the employee needed to be ‘talked down’ after threatening to commit suicide at work.

While the Commission upheld a subsequent dismissal of the employee for breaching the employer’s drug and alcohol policy, the Commission nevertheless decided to refer its decision, the evidence and the transcript of the proceedings to the compliance unit of SafeWork NSW.

Facts

The employee had been employed as a stevedore at a container terminal located at Port Botany, NSW since January 1995. The employee had transferred his employment on several occasions with the result that, as of April 2018, his employer was DP World.

The work environment was safety sensitive with the work of stevedores requiring the highest level of safety standard adherence.

The employee had an Alcohol and Other Drugs Policy (AOD Policy), which provided that stevedores must not test positive in breach of the AOD Policy (i.e. have a blood alcohol reading of more than 0.02%).

The employee’s mental state was said to be affected by a range of personal circumstances. On his way to work he purchased and drank at least four cans of Wild Turkey. The employee then texted a co-worker threatening suicide that night and the co-worker notified the employee’s team leader.

The team leader attended the employee’s work site to check on the employee and spent about half an hour ‘talking him down’. The team leader did not suspect that he was intoxicated and allowed the employee to then return to work.

The employee was subsequently selected for random testing and was found to have a blood alcohol concentration reading of 0.118%. He was immediately stood down on pay and referred to the employer’s Employee Assistance Program.

After a meeting to discuss the events, the employee’s employment was terminated.

The employee made an unfair dismissal application to the Commission, alleging his dismissal was harsh, unjust and unreasonable because the misconduct occurred during a severe episode of depression and the employer had not given sufficient weight to the employee’s unblemished record over 23 years of service. The employee also submitted that other employees had recorded positive alcohol test results without being automatically dismissed, a submission the employer conceded at the hearing.

Decision

The Commission stated that in issue was whether the employee’s conduct was sufficiently serious as to justify his dismissal, considering the issue in light of his diminished mental state at the time.

Matters in favour of the employee

The Commission found the following matters were in favour of a finding that the dismissal was unfair:

• The employee had been employed for 23 years.
• The employee had an unblemished disciplinary and performance record.
• There was evidence that the employer has not treated all employees consistently when there was a breach of the AOD Policy.
• The employee attempted to end his life and was returned to work without having the event reported to higher management, which evidenced systemic failures in the employer’s WHS practices. The Commission also noted that, had the event been reported, the employee could have been medically assessed and this might have resulted in his employment not being terminated.

The loss of such employment would have had a significant impact on the employee, both personally and economically.

Consideration was also given to the fact that the AOD Policy did not mandate termination of employment, and that it contemplated situations where employees in breach of the policy might continue their employment. However, the Commission noted that that the employee’s BAC was nearly six times the limit in the AOD Policy.

Dismissal still upheld

Ultimately however, the Commission held that, in the absence of medical evidence providing an excuse for his conduct, the evidence did not establish that the employee was unable to understand the wrongfulness of his actions.

The Commission held that the employer and other employers have a legitimate interest in sending a signal to employees about the importance of safety and that intoxication at work is an unacceptable safety risk, especially at a stevedoring terminal. Consequently, a valid reason for dismissal was found.

Importantly, the Commission was very critical of the employer’s lackadaisical mental health policies, the actions taken by the team leader in allowing the employee to return to work, and the lack of action by senior representatives of the employer since the incident to improve the company’s processes. The Commission referred the matter to SafeWork NSW.