Industrial Relations Commission of New South Wales CITATION: Philip Brunt v The Continental Spirits Company [2005] NSWIRComm 1133 APPLICANT Philip Brunt PARTIES: RESPONDENT The Continental Spirits Company FILE NUMBER(S): 175 of 2005 CORAM: Macdonald C CATCHWORDS: Unfair dismissal - Applicant's drinking incident on site after hours - Applicant's drinking problerm/stress at work correlation - Applicant and his wife sought help from Respondent - Respondent failed to apply its Employee Assistance Programme Policy to Applicant - Reinstatement LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Outboard World Pty Limited v Muir (1993) 51 IR 167 HEARING DATES: 06/08/2005; 06/14/2005; 06/15/2005; 06/16/2005 DATE OF JUDGMENT: 08/26/2005 APPLICANT Mr S Prince, barrister Mr W Szekely, solicitor LEGAL REPRESENTATIVES: RESPONDENT Mr A Moses, barrister Ms J Swift, Employers First DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 26 August 2005 Matter No IRC 175 of 2005 Philip Brunt v The Continental Spirits Company Application by Philip Brunt re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 1133 1 This is an application by Philip Brunt ("the Applicant") for unfair dismissal against The Continental Spirits Company ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). 2 The matter was set down for Conciliation and Directions on 2 February and 4 March 2005. On the former date, a Hearing and filing program was put in place. 3 At the Hearing, the Applicant was represented by Mr S Prince, barrister and instructing solicitor, Mr W Szekely. Mr Prince called the following witnesses - · Mrs Lisa Brunt - the Applicant's wife · Ms Janene Cleverley - Operations Support Facilitator · Ms Margaret Menzies - Operations Support Team Leader · Mr Malcolm Griffiths - Manufacturing Facilitator · Mr Gregory Saywell - former employee of the Respondent (Engineering Supervisor) · Mr Philip Brunt - the Applicant Two of the above witnesses (Cleverley and Menzies) appeared as witnesses under subpoena from the Applicant. The Respondent was represented by Mr A Moses, barrister who was assisted by Ms J Swift, industrial advocate of Employers First. Mr Moses called the following witnesses: · Mr Joe Carabetta – former employee of the Respondent (NSW Warehouse Manager) · Mr Robert Jagger - Operations Manager, Carlton United Breweries · Mr David Cunneen - Human Resource Advisor, Foster's Australia 4 The Hearing was held over four days - 8, 14, 15, and 20 June 2005. BACKGROUND 5 The Applicant was employed from August 1986 by Seagrams Pty Ltd which changed its name to The Continental Spirits Company Pty Ltd. The shares in this company were acquired by the Fosters Group in or about November 1999. 6 In or about 2002, The Continental Spirits Company Pty Ltd underwent a restructure, arising out of which the Applicant became the Occupational Health and Safety Officer and Security Officer for the warehouse and Despatch Co-ordinator in the warehouse and distribution areas. 7 The Applicant alleged he could not cope with his new workload and had made numerous complaints about this with the Respondent. It was also alleged that all the workplace stressors suffered by the Applicant caused severe anxiety and led to a drinking problem for the last two years of his employment. 8 On Friday, 17 December 2004, the Applicant returned home from work intoxicated. He had drunk from a 375ml vodka bottle (a company product) after finishing work and had drunk the same at work. His wife telephoned the Applicant's supervisor, Mr Joe Carabetta, NSW Warehouse Manager. This conversation was the subject of dispute between the parties. The Applicant's wife claimed to have an assurance from Mr Carabetta that nothing untoward would come of her husband's employment as to his job security and that she obtained this assurance before divulging the drinking incident and drinking behaviour of her husband. Mr Carabetta denied the foregoing assertion. 9 Over the ensuing week, an investigation was carried out by management into the drinking incident, the Applicant was suspended on pay, two disciplinary meetings were held with the Applicant (with his wife in attendance) and the Applicant was summarily dismissed for breach of the Respondent's policy in respect of unauthorised consumption of alcohol and theft of company product. Prior to the dismissal and during the disciplinary meetings, the Applicant and his wife sought assistance for the Applicant's drinking problem and specifically referred to the company's Employee Assistance Programme Policy. SUBMISSIONS For the Applicant 10 Mr Prince, barrister for the Applicant, made the following submissions:- (a) The Applicant was harshly dismissed and sought an order of reinstatement or re-employment. Either of these orders should be made the subject of a final warning in respect of drinking the Respondent's product at the work premises. Further, either order should incorporate the removal of the Applicant's occupational health and safety duties. This issue had already been advised to the Respondent by way of a letter. (exhibit 13) It was submitted that no evidence as to the impracticability of this request had been raised by the Respondent. (b) It was submitted that the dismissal was too harsh in the circumstances having regard to a number of factors. Those factors included the Applicant's unblemished 17 year employment history; his inability to cope at work contributed to his drinking problem and this inability had been brought to the Respondent's attention, who failed to deal with this inability to cope issue; Mr Jagger's demeaning treatment of the Applicant; the Applicant had approached the Respondent to seek assistance in dealing with his drinking problem before there was any contemplation of disciplinary action against the Applicant; and the failure of the Respondent to apply the Employee Assistance Programme in favour of the Applicant. (c) Where there was conflict in the evidence between that of the Applicant and his wife with that of Mr Carabetta, then the former (Applicant and wife) was to be preferred. (d) The decision to dismiss the Applicant was made by Mr Grant (General Manager, Supply Chain Operations NSW/ACT), who was not called by the Respondent to give evidence about his decision to dismiss the Applicant. (e) The evidence of Mr Cunneen, Human Resource Advisor, was that he only advised of the one option to Mr Grant and that was dismissal. No other options were given to Mr Grant, such as the exercising of the Employee Assistance Programme; or a reduction in the Applicant's duties; or the giving of a first and final warning. (f) There was no evidence that Mr Grant, as the decision-maker, took into account in making the decision to dismiss, such factors as the Applicant's length of service, his contrition and his plea for help. (g) The Respondent has an Employee Assistance Programme Policy ("the EAP Policy") and it provides that a person coming forward under that policy would not be prejudiced in the security of their employment by doing so. The Applicant was so prejudiced. This policy is not in conflict with the Respondent's Drug and Alcohol Policy ("the D&A Policy") which does not mandate any particular outcome in respect of breaches. That is, does not mandate dismissal. (h) The employer of the Applicant, at law, is The Continental Spirits Company Pty Ltd and not Carlton United Breweries (CUB) as claimed by Mr Moses, for the other side. It appeared, it was submitted, that representatives of CUB had dismissed the services of the Applicant and this was not legally possible, as only the parties to a contract, are entitled to terminate the contract. For the Respondent 11 Mr Moses, barrister for the Respondent put the following submission - (a) There had been no unfair dismissal. (b) The Applicant had been dismissed for theft of the Respondent's product. (He had gone to the damaged stock room and drank from a damaged 375 ml Vodka bottle). Mr Moses also made the point that during the cross-examination of the Applicant, it was learnt for the first time that he had thieved the Respondent's product on an earlier occasion being two weeks prior to the known theft of 17 December 2004. (c) The Applicant had drunk whilst on site, contrary to the Respondent's policy. (d) The Applicant is prone to telling lies about his drinking problem. He had written to the general manager of CUB that he is undertaking counselling for his drinking problem but this was not true. He lied to prospective employers in his applications for employment. (e) The Applicant shows no contrition. He had to be prodded in the witness box to concede that what he had done was theft. (f) The Respondent's Mr Jagger, Operations Manager, did not demean the Applicant at work as asserted by certain witnesses. Mr Jagger had only raised queries or questions about the Applicant's performance of only his occupational health and safety duties. (g) Mr Moses rejected the argument that stress at work caused the Applicant to drink and this excused the theft of the Respondent's product. And, in particular, rejected any argument that Mr Jagger was a cause for the Applicant's drinking problem. The first time that Mr Jagger has been raised as an issue for the Applicant's defence, has been during the evidentiary proceedings. (h) Any omission by the Respondent, during its investigation process, in respect of not following any of the Respondent's policies (the EAP and/or D & A policies) was only a procedural omission and in any event, would have no effect on the resultant action of the Respondent in dismissing the Applicant. (i) The Commission should give preference to the evidence of the Respondent's Mr Carabetta, as against that of the Applicant's wife. (The issue here being whether Mr Carabetta had given an assurance to the Applicant's wife about the security of the Applicant's employment before she divulged that her husband had a drinking problem. In any event, said Mr Moses, what was not disclosed by her to Mr Carabetta was the act of theft of the Respondent's product.) (j) If the Commission was to consider reinstatement (on the finding of an unfair dismissal), what would be the practicability of reinstatement - given that the Applicant said he had a drinking problem because of work related stress. (k) If the Commission was to consider re-employment (on the finding of an unfair dismissal), what position is available to the Applicant? The Applicant seeks re-employment to a dispatch position but with no occupational health and safety component - per the exhibit 13 correspondence addressed to the Respondent. But, Mr Moses said, no evidence was led that such a position exists. (l) Finally, the Commission has before it an issue as to the identity of the employer. This is only an issue if the Commission finds that the dismissal was unfair. As to who is the employer, Mr Moses said that CUB owns The Continental Spirits Company and therefore CUB is the employer. Applicant in Reply 12 In Reply, Mr Prince made the following points: - (a) Whilst the drinking of the Respondent's product was theft, the incident must not be seen in a technical sense of the law, but rather that the Applicant was gripped by an urge to drink which he could not repel. (b) The Applicant had gone to Mr Carabetta for counselling about his drinking problem but did not know how to put that in words and had remained silent on the issue. (c) The Applicant and his wife had made early admissions to the Respondent about his drinking problem. He had not been caught by the Respondent. He had not misled the Respondent in its investigation after his disclosure. (d) It was not put to the Applicant's wife during cross-examination, that she had telephoned Mr Carabetta on Friday, 17 December 2004, about her husband's drinking problem, in order to head off a discovery by the Respondent as to what had happened. The Respondent had no knowledge of what had happened on that Friday until Mrs Brunt made her telephone call to Mr Carabetta. (e) It was not correct that the Applicant was not being frank with the Commission when he advised during cross-examination of a second (prior) incident of drinking at the work site. The Applicant had deposed in his witness statement that he had drunk in the Staff Entertainment area after working hours on a few occasions after September 2004. (exhibit 10 - paragraph 22) CONSIDERATION 13 Arising out of the unfair dismissal application, was another possible issue for the Commission's consideration. This possible second issue being: Who is the Employer? It would only be an issue for consideration, if the Commission found that the Applicant had been unfairly dismissed and Orders were to be directed against the employer. The Commission will now consider the primary issue being the Applicant's claim that he had been unfairly dismissed. 14 By letter of 23 December 2004, the services of the Applicant were terminated on the ground of serious misconduct and without payment of notice. (exhibit 10 - attachment I) 15 Two reasons were stated for the termination: · Unauthorised consumption of alcohol; and · Theft of company property. 16 The dismissal letter also stated: "The Company is of the view that these (the two reasons) constitute serious breaches of the company's Drug and Alcohol Policy and conduct generally especially having regard to your role as Security and OH & S Officer." 17 The dismissal letter is on CUB letterhead and signed by David Grant, General Manager, Supply Chain Operations NSW/ACT. 18 The Commission notes that the dismissal letter does not identify what company product was the subject of theft. The Applicant deposed that the company product was a damaged 375 ml Karloff Vodka bottle. (exhibit 10 - paragraph 23) For the record, the unauthorised consumption of this vodka bottle, took place on the work site, in the Chatelle Room ( the damaged stock room), and after work hours. Onus 19 Given that the dismissal was classified as "serious misconduct" and no notice in lieu paid, then the onus falls upon the Respondent to prove that the conduct alleged against the Applicant, did in fact take place. 20 That onus did not have to be satisfied in the proceedings, because the Applicant advised the Respondent, per Mr Carabetta, that he had drank from the damaged vodka bottle from the Chatelle Room after work on the Friday (17 December). This was told to Mr Carabetta on Monday, 20 December. It was this formal advice by the Applicant which caused the Respondent to carry out an investigation, to suspend the Applicant from work on that same Monday, and eventually lead to his summary dismissal. The Events of 17 December to 24 December 2004 21 For convenience, the Commission will now set out the main events and identity of players for the period 17 December to 24 December 2004, inclusive. Later, the Commission will then consider: (a) the telephone conversation of 17 December between the Applicant's wife and Mr Joe Carabetta; and (b) the role (or otherwise) of the EAP and D&A Policies. 22 17 December (Friday) - The Applicant concluded work at 3.00 pm. He went to the Chatelle Room at work and drank from a damaged 375 ml Karloff Vodka bottle. He went to the Staff Entertainment Room and lay down. 23 A fellow worker, Mr Malcolm Griffiths deposed (exhibit 8) that he was asked by another employee (Barbaros) to come into the Staff Entertainment Room. This was about 4.00 pm. There, Mr Griffiths saw the Applicant asleep on the floor. Mr Griffiths could not wake the Applicant but smelt alcohol. They put the Applicant partly under the shower but he still remained unaware as to what was happening. They put him in Mr Griffith's car who delivered him home. The Applicant walked inside his house and Mr Griffiths explained to Mrs Brunt as to how Mr Griffiths had found him. 24 The Applicant's wife, Lisa Brunt, deposed (exhibit 1) that Mr Griffiths arrived at the home on that Friday about 5.30 or 6.00 pm. Her husband was drunk and he went to bed. 25 Later that evening, she telephoned Mr Joe Carabetta. It is this telephone conversation that is in dispute. Mrs Brunt deposed she had sought and was given an assurance by Mr Carabetta that her husband's job would not be affected by a difficult issue she wished to raise. Mr Carabetta deposed that such an assurance was not raised and that he said the company would have to carry out an investigation and determine whether a warning or further action was required. His witness statement makes no reference to Mrs Brunt's claim that she said that her husband wanted help under the Employee Assistance Program. 26 20 December (Monday) - The Applicant met with Mr Carabetta. No one else was present. The Applicant advised of his drinking problem and that he had drunk from the damaged vodka bottle after work in the Chatelle Room on the previous Friday - and that he had been give a lift home by Mr Malcolm Griffiths. 27 Mr Carabetta's witness statement confirm that the two of them met. He makes no reference to the vodka bottle, nor Mr Griffiths. There is also a dispute as to whether the Applicant went home of his own accord or was given permission by Mr Carabetta to go home. In any event, the Applicant telephoned his wife following the meeting. Both their statements confirm that Mr Carabetta would be taking the matter up with Mr Jagger (Operations Manager, CUB). 28 Mr Carabetta makes no reference in his statement as to the conversation he had with Mr Jagger, but the latter deposed (exhibit 20) that he met with Mr Carabetta around 8.30 am on that Monday to be told by Mr Carabetta of the conversations by Mr Carabetta with the Applicant's wife and then husband. Mr Jagger disagreed with the foregoing and deposed that he and Mr Carabetta telephoned Mr David Cunneen from Human Resources who advised that an investigation would be required. 29 Mrs Brunt deposed she telephoned Mr Jagger as she knew him. (Mrs Brunt had been an employee of the company and had worked for Mr Jagger). Mr Jagger deposed the conversation took place around 9.30 a.m. Their statements only agree that the subject of the conversation was the Applicant. Mrs Brunt deposed she was told by Mr Jagger that her husband would be given a first and final warning and she should not be alarmed by the investigation as it was normal procedure. Mr Jagger deposed that he said there would be an investigation and after that, the next step would be determined. 30 Mr Malcolm Griffiths deposed he was interviewed by Mr Jagger and Mr Carabetta. They took notes and prepared a Statement and later in the day showed it to him for his signature. He noticed it said he found the Applicant "intoxicated". He disagreed with this and the term "asleep" was substituted on his suggestion. He signed the amended statement. Mr Griffiths does not state the time of day of this meeting. 31 21 December (Tuesday) - The Applicant received a letter from the Respondent, advising him that following an initial investigation of the Friday incident, that a serious issue had been identified: "Breach of the Company's Drug and Alcohol Policy." The letter is dated 20 December 2004. (exhibit 10 - annexure H) The letter advised of his suspension from work immediately. He was to attend a formal disciplinary meeting at 8.00 am on 22 December. The incident was regarded as very serious, would be dealt with through a formal disciplinary process and he could have a support person at the meeting. 32 The Applicant also received a telephone call from Mr Carabetta advising of the Wednesday meeting. 33 22 December (Wednesday) - The Applicant attended the meeting with his wife. For the company, there were Mr Carabetta (NSW Warehouse Manager), Mr Cunnen (Human Resource Advisor) and Mr Beasant. Mr Jagger did not attend the meeting. 34 Based on the statements of the attendees (except for Mr Beasant who did not give evidence), it is agreed that the Applicant gave his recollection as to what had occurred on the prior Friday. The additional information about that Friday (and only deposed by Messrs Cunneen and Carabetta), is that the Applicant played table tennis with another employee after drinking the vodka. 35 Mr Cunneen referred to the Drug and Alcohol Policy. The Commission finds that Mr Cunneen pointed out the seriousness of breaking this policy and it could result in dismissal. 36 Mr Cunneen deposed, and hence confirmed the statements of the Applicant and his wife, that one of the latter parties raised the Employee Assistance Program Policy at this meeting. Mr Cunneen deposed that not only was the EAP Policy raised but that one of the latter parties had stated that the EAP Policy said that there will be no ramifications to an employee's employment, if that policy is invoked. Mr Cunneen also deposed that Mrs Brunt said that the investigation would not have been conducted had she not made that telephone call on the Friday to Mr Carabetta and further that her husband is not the only employee who drinks. 37 Mr Cunneen stated to the Applicant at this meeting that the outcome of the Respondent's investigation will be given at a meeting on 23 December (the next day). 38 23 December (Thursday) - The Applicant and his wife attended the meeting. For the Respondent, the attendees were Mr Carabetta and Mr Cunneen (same appearances as for Wednesday's meeting). A new Respondent attendee was Mr David Grant (General Manager, Supply Chain Operations NSW/ACT). (It was Mr Grant who signed the Applicant's dismissal letter. He did not appear as a witness). 39 It appears from the witness statements, that Mr Grant began the meeting by asking if the Applicant wanted to say anything before Mr Grant spoke. Mr Grant read from a prepared statement. Mrs Brunt interjected during the reading of this statement, saying words to the effect: "You cannot sack Phil (the Applicant) when he came forward for help." 40 The Respondent attendees left the meeting for a few minutes and upon returning, Mr Grant advised the Applicant that he had been dismissed. 41 24 December (Friday) - The Applicant received his summary dismissal letter, signed by Mr Grant, and dated 23 December 2004. The Conflicting Conversations 42 There is a conflict in the evidence in respect of the telephone conversation between the Applicant's wife (Mrs Brunt) and Mr Carabetta. This telephone conversation took place on the evening of Friday 17 December - after the Applicant had gone to bed, after being driven home by Mr Griffiths. 43 The importance of this conversation to the Applicant's case, is that the Applicant firstly submits that his dismissal was unfair because his wife had obtained a certain assurance from Mr Carabetta during this telephone conversation. Mrs Brunt stated she was given an assurance, to the effect, that her husband's security of employment would not be jeopardised by what she would disclose about her husband - but only after she obtained that assurance. Mr Carabetta denied giving that assurance. 44 The Commission was asked to decide that conflict having regard to witness and evidence credibility. The Commission is unable to resolve the conflicting evidence through the issue of witness credibility. It was certainly the case that Mrs Brunt gave her evidence in a forthright manner but on the other hand, Mr Carabetta did not present himself as a dishonest person. 45 As to deciding the conflict by evidentiary credibility, it was put by the Applicant's barrister that Mr Carabetta's evidence as to when he spoke with Barbaros was in error and this diminished the value of Mr Carabetta's evidence where it conflicted with Mrs Brunt. The Commission agrees there was an error but not to the extent that the credibility of the evidence of Mr Carabetta arises for consideration. 46 Again on this issue of evidence credibility, Mr Prince put, in effect, that it would not be logical for Mrs Brunt to, as it were, "spill the beans" on her husband's drinking at work (and hence jeopardise his employment), without first obtaining an assurance against that jeopardy. That is a reasonable scenario to put to the Commission, but on the other hand, why would Mr Carabetta give an assurance going to an important issue (job security) without knowing beforehand to what he was committing himself and the company? 47 The Commission is unable to decide this issue as to whether there was an assurance obtained from Mr Carabetta, as to the Applicant's job security before Mrs Brunt advised of her husband's condition. The EAP Policy 48 The Applicant's case was that the dismissal was unfair (that is, "harsh"), having regard to all of the circumstances. At the core of this submission was reliance by the Applicant on the company's Employee Assistance Program Policy (EAP Policy). That is, reliance was placed on certain words contained in clause 42 of that policy - "Employees seeking assistance via EAP are assured that their participation in the program will be treated as confidential, and will not affect their standing within the Group or their job security." (emphasis added) (exhibit 10 - annexure G) The Applicant's reliance went particularly to the emphasised words. The Applicant asserted that he sought assistance/help (through the operation of this policy) to deal with his drinking problem and that the company's representatives ignored this request for help - and hence they ignored the company's own policy for dealing with an employee's drinking problem. Mr Moses, for the company, rejected this submission. He said the EAP Policy had no application to the circumstances of this case. The policy that did apply (and was applied by the company) was the Drug and Alcohol Policy and it provided for the dismissal of an employee who engaged in the unauthorised consumption of alcohol and theft of company product. The theft being the vodka bottle. This was the very conduct, he said, engaged in by the Applicant. 49 The Commission was required to consider, in particular, the application (or otherwise) of these two policies. Having considered the circumstances in this case, the Commission finds that the company was in error in not applying the EAP Policy. Having considered the circumstances as a whole, the Commission finds that the summary dismissal of the Applicant was "harsh". The Commission will now set out its reasoning below. The EAP and D & A Policies 50 It was not disputed by the parties, that the Applicant had raised the EAP Policy. It is not clear from the evidence as to when the EAP Policy was first raised on the Applicant's side. It was said by the Applicant's wife that she raised it in the telephone conversation with Mr Carabetta on the Friday night (17 December). He disputed this in his witness statement but under cross-examination said that the Applicant's wife (and the Applicant) had raised it with him. He gave this admission in the context as to whether he had told his superior (Mr Jagger) of the EAP Policy request. (Tr 14/06/05 - p 89) Company documentation (exhibit 23) clearly shows that the Applicant's side raised the EAP Policy at a meeting with company representatives on the Wednesday (22 December). This meeting was the first meeting held by the parties and had been called by the company to deal with Friday's incident. Even if the EAP Policy was first raised on the Wednesday this makes no difference to the Commission's deliberations in this matter. Assistance had been sought by the Applicant's wife and then the Applicant prior to that Wednesday and in the context of coming forward and divulging information about the drinking incident and the husband's drinking, about which information the Respondent had no knowledge. 51 The EAP Policy states that it can provide help in three areas and then itemises the matters falling within these three areas. One such area is: "Clinical Issues". And one of its items is: "Alcohol, drug or other dependencies". The Applicant's evidence, supported by his wife, was that he had a drinking problem. Mr Carabetta deposed that the Applicant's wife said: "Phil has a drinking problem and has been drinking on and off for about 2 years ... I have had enough ... I am sick of it happening and I am concerned that our marriage will be affected by it. I am also concerned because Phil sometimes picks the kids up after work." (exhibit 17 - paragraph 27) 52 It seems to the Commission that his drinking problem was an appropriate matter for consideration under the Employee Assistance Programme Policy. 53 The other policy for the Commission's consideration is the D & A Policy. The two barristers put differing submissions for the role of this policy. Mr Moses for the Respondent relied upon that aspect of the D & A Policy that provided the right in the company to dismiss an employee on certain stated grounds and in this particular instance: unauthorised consumption of alcohol and theft of company product. (clause 3.1.1 Serious and Wilful Misconduct - see annexure A of exhibit 10) Mr Prince for the Applicant, on the other hand, submitted that the provisions within the D & A Policy allowed for the diversion of an employee to the Employee Assistance Programme for rehabilitation where that is appropriate. 54 The Commission concurs with the submission of Mr Prince and in doing so, will address below the role of the D & A Policy and the submission of Mr Moses. 55 First for consideration is the role of the D & A Policy. The opening preamble to the D & A Policy gives the objective of the policy. Thus: · "... the Company is committed to providing employees with a safe working environment as well as promoting and maintaining the health and well-being of employees." (emphasis added) · "This policy focuses on the prevention of alcohol and drug misuse in the workplace." (emphasis added) · "... this policy provides guidance for dealing with them." (alcohol and drug issues in the workplace) 56 Other relevant extracts are as follows: · "The Company will provide access to information, education and counselling to support employees if required." (Clause 1.0 - Foster's Group Limited Responsibilities) · "Counselling, advice and education regarding the abuse of alcohol and use of drugs will be provided to employees through the Employee Assistance Program (EAP) or other appropriate mechanisms. The Company recognises that some employees may experience alcohol or drug dependency/abuse problems. Early referral to clinical management is essential for good health and continuing productive employment and shall be handled confidentially ." (Clause 3.2 Counselling and Education) 57 The foregoing extracts show that the D & A Policy has work to do. It is not a policy of illusion. The actioning of the D & A Policy by an employee is not stated anywhere within the policy as being on the discretionary basis of the company. The only reference to actioning the policy is as follows: " The Company will provide access to information, education and counselling to support employees if required . " (emphasis added) The policy does not illuminate on the meaning of this statement and no restrictions are placed upon it - other than conduct by an employee (such as unauthorised consumption of alcohol and theft of company product which gives the company the right to summarily dismiss an employee). Apart from that type of restriction stated in the policy, there is no other restriction on the actioning of the policy. (And the Commission notes by the by, that a policy whose actioning is based on the discretion of those having managerial responsibility to so action/authorise, is fraught with the possibility of discriminatory application because, say for example, a manager does not like the particular employee who seeks assistance for his or her alcohol or drug issues. No such discretionary criterion is contained with the D & A Policy). 58 The Commission finds that the D & A Policy is a policy that has work to do. The policy is actioned by an employee seeking the assistance of that policy. The assistance sought is through the Employee Assistance Program Policy. (Clause 3.2 Counselling and Education). That assistance was sought by the Applicant and his wife. 59 The second issue for consideration is the rejection, by the Commission, of Mr Moses' submission that the company acted correctly in only relying upon that aspect of the D & A Policy which went to summary dismissal of the Applicant for his unauthorised consumption of alcohol and theft of company product (the vodka bottle). 60 Mr Prince for the Applicant conceded that the Applicant had engaged in this conduct. (The Applicant, however, was not so keen to make this concession during his cross-examination by Mr Moses, who relied upon this less than frank display by the Applicant to question the Applicant's credibility. The Commission will deal with this issue later in this Decision). 61 As to the theft of company product, it seems to the Commission that the conduct by the Applicant was not the type of theft envisaged by the policy. Further, the overall circumstances of the case put a different perspective on the approach to be taken when considering the D&A Policy pronouncement on theft and unauthorised consumption of alcohol. 62 As to type of theft, the conduct of the Applicant is to be contrasted against that of another employee who had been dismissed for theft of company product (also alcohol). Under cross-examination, Mr Jagger, Operations Manager, give evidence of another employee who helped himself to several bottles of Black Douglass and placed these in his bag. He was caught out by the company. (Tr 14/06/05 - p 122) By contrast, the Applicant had not secreted his stolen product in some bag to then take off the premises. He consumed the product on site, after his work hours, and played table tennis and fell asleep at the worksite. A fellow employee came across him and alerted Mr Griffiths and both of those employees put the Applicant partially under the shower at the worksite. Without wishing to appear lighthearted about a serious matter, the foregoing description of the Applicant's "theft and unauthorised consumption of alcohol", has something of the farce about it. 63 The Commission also relies on other evidence to reject Mr Moses reliance on only the disciplinary aspect of the D & A Policy as being the correct approach for the employer to consider its response to the Applicant's conduct. This other evidence goes to the Applicant's urge to drink and his stress at work/drinking problem correlation. This other evidence supports the finding that management should have taken a broader approach and included the EAP Policy in its consideration of the Applicant's conduct. Firstly, the Applicant's conduct did not reflect an intention to steal, as such. His evidence was that he drank to satisfy an urge, rather than drink for enjoyment. (Tr 14/06/05 - p 46) Secondly, he drank because of issues at work and one of those issues was his inability to cope with the occupational health and safety part of his position and this was linked with the Applicant's work relationship with his manager, Mr Jagger. 64 The Applicant deposed the following as to his stress at work: (a) He has a tendency to high blood pressure and takes tablets daily to control it. In September 2004, he was rushed to hospital via ambulance when his blood pressure was found by a local doctor to be extremely high (220/110). This was due, the Applicant said, to a requirement that he speak in public at a four day work training seminar; and (b) He found himself, he said, to be increasingly anxious in his work relationship with Mr Jagger who never had a kind word for his performance. He found himself drinking more and more. (exhibit 10 - paragraphs 16 to 19) 65 During cross-examination, the Applicant asserted that his stress at work was caused by the criticism that Mr Jagger made of him in relation to the occupational, health and safety part of his overall job; he said there was a relationship between his stress, his drinking and Mr Jagger's behaviour towards him; and he described Mr Jagger's approach to him as demoralising. (Tr 14/06/05 - pp 25, 26 and 30) 66 This claim of the Applicant of a relationship between his occupational health and safety duties, his stress, his drinking and Mr Jagger's attitude towards the Applicant, was a claim requiring deliberation beyond the Applicant's evidence on the point, because of the evidence of other witnesses. Thus: (a) Mr Carabetta, the former Warehouse Manager ( and witness called by the Respondent), deposed that he had been told by the Applicant in or about July 2004, that the Applicant thought Mr Jagger was picking on him (exhibit 17 - paragraph 10). He gave evidence that Mr Jagger treated the Applicant differently to other staff in respect of work related matters; Mr Jagger was frustrated with the Applicant; Mr Jagger's approach to the Applicant was not blunt but direct; the Applicant took Mr Jagger's criticisms personally; Mr Jagger's directions went to errors made by the Applicant; and Mr Jagger and the Applicant had contact with each other at meetings going to safety issues. (Tr 14/06/05 - pp 74 to 76) (b) Ms Cleverley (witness called by Applicant under subpoena), deposed from her observations that the Applicant became more anxious when given the additional duty of occupational health and safety. She observed Mr Jagger criticise the Applicant and always found some fault with the performance of the Applicant as a consequence of which the Applicant became increasingly anxious. (exhibit 4) Under cross-examination, she said the tone of Mr Jagger's criticism (as observed by her) of the Applicant's work performance was "demeaning" and that it was done in the year 2004, "over a period of time." Further, the Applicant told her that Mr Jagger was intimidating him in front of people in meetings. (Tr 08/06/05 - pp 45 to 48) (c) Ms Menzies (witness called by Applicant under subpoena), deposed that she had seen the Applicant's anxiety appear. She deposed that the Applicant told her (between late 2002 and late 2004) that since taking on the extra work as occupational health and safety officer, he increasingly could not cope with that work - and she told this to Mr Carabetta. (exhibit 6) Under cross-examination and re-examination, she identified Mr Jagger as the person named by the Applicant whom the Applicant thought he could not satisfy with his work performance. (Tr 08/06/05 - pp 55 and 57) During re-examination, Ms Menzies referred to a sort of big verbal conflict. When questioned to explain, she hesitated. It appeared to myself that she had a concern about answering the question and was directed, in effect, by myself to answer the question. She then referred to an incident between Mr Jagger and the Applicant. She said that Mr Jagger had called out to the Applicant by his first name but that he had a way of doing so that showed he disagreed with whoever was the recipient of his voice tone. Ms Menzies continued with the incident in question by saying that the Applicant stood up, in response to Mr Jagger, went bright red and just stood there. (Tr 08/06/05 - pp 57 and 58) (d) Mr Saywell (former employee called by the Applicant), deposed that he attended occupational health and safety meetings, which were chaired by the Applicant. He said Mr Jagger " denigrated the Applicant in my presence ." At these meetings, he observed the Applicant to be not only anxious but agitated. (exhibit 9) In examination-in-chief, "denigrated" was explained to mean the way Mr Jagger treated the Applicant at these meetings - that is, Mr Jagger spoke to the Applicant in such a way as to show up the Applicant as incapable of doing the job. Mr Jagger's tone with the Applicant was " short, sharp ." (Tr 14/06/05 - p 6) (e) Mr Griffiths (a witness called by the Applicant) deposed that he attended occupational health and safety meetings and said that at virtually every meeting Mr Jagger would "belittle" any suggestions made by the Applicant - and do so in front of other persons present at those meetings. (exhibit 8) Under cross-examination, he described Mr Jagger's criticisms of the Applicant as being given in a " very blunt " way (Tr 08/06/05 - p 63) 67 The claims of the various witnesses (Messrs Cleverley, Menzies , Griffiths and Saywell) contained in their witness statements about Mr Jagger's interpersonal dealings with the Applicant, were put to Mr Jagger. He denied treating the Applicant as deposed by them. 68 Despite Mr Jagger's denials, the weight of the evidence as deposed and the Commission's observation of the demeanour of these four witnesses is such, that the Commission finds that there is merit to the claims of these witnesses as to how Mr Jagger treated the Applicant at work about occupational health and safety related matters. Further to that finding, is the evidence of the Respondent's own witness, Mr Carabetta who gave evidence that Mr Jagger was direct in his dealings with the Applicant who also said to Mr Carabetta that he thought Mr Jagger was picking on him, the Applicant. This claim of the Applicant of being picked on, is supported by the statements of Saywell (denigrated the Applicant) and Griffiths (belittle suggestions of the Applicant). 69 In making that finding, the Commission returns to the claim of the Applicant of a correlation between his stress at work and his drinking behaviour. In considering that correlation, the Commission records that Mr Carabetta said he was told by the Applicant that the Applicant thought Mr Jagger was picking on him. This conversation was given as occurring around July 2004. The Applicant was hospitalised in September 2004 because of a stress attack that he had to speak in public at a work related seminar. Mr Jagger gave evidence that after that hospitalisation (and one week of sick leave), the company reduced the Applicant's role because he was struggling with structured meetings and ad hoc tasks. The structured meetings were the occupational health and safety meetings. (Tr 14/06/05 - p 118) This evidence of Mr Jagger returns the Commission to the depositions of the witnesses and the finding of the Commission that at these meetings, Mr Jagger denigrated and belittled the Applicant. The Applicant, himself, gave evidence of his anxiety at work. From the foregoing summary, the Commission finds that the inference can be drawn that the Applicant's drinking behaviour can be related back to his work situation. The inference can also be drawn that one of the factors for his drinking behaviour was the conduct of Mr Jagger towards him. In making that second inferential finding, the Commission does not say that Mr Jagger intended that the Applicant should have a drinking problem. The evidence is clear on this point that the Applicant's drinking problem was a surprise to all, when it became known. 70 The outcome of this finding by the Commission of a correlation between his stress at work and his drinking behaviour, goes beyond that finding. The other outcome is that, because his drinking problem had a work related cause, then how could the various company representative ignore his and his wife's plea for help per the company's Employee Assistance Program? The Respondent's Case 71 Mr Moses, in his final submissions, put four issues to the Commission. The thrust of those issues was that the Applicant had engaged in theft of a company product (a vodka bottle) and then had consumed part of the contents and this consumption was unauthorised and therefore the Respondent had acted correctly in summarily dismissing the Applicant. For reasons set out above, the Commission has rejected the submission that the Respondent acted correctly. Mr Prince, barrister for the Applicant, aptly described that submission and hence the Respondent's approach in its dealings with the Applicant as, "tunnel vision". That is, the Respondent ignored its obligation under the EAP Policy. 72 Another issue raised by Mr Moses is that the Applicant is prone to lying and gave instances of this submission. The Commission rejects the submission that the Applicant lied about his drinking problem. As to the accuracy of certain things said by the Applicant in correspondence to others (such as prospective employers), following his dismissal, these are not matters having any bearing on the decision made by the Commission. 73 The final issue raised by Mr Moses is that the Applicant lacked contrition for his conduct, in that he had to be prodded in the witness box to eventually concede that what he had done was theft. The Commission concurs that the Applicant was reluctant to label his conduct as theft. But his explanation was plausible in that he saw his conduct, not as theft, but as an urge. The Commission has already observed that his conduct did not show an intention to engage in the type of theft for which another employee had been dismissed. That theft was hiding several bottles of alcohol in a bag and being caught out by the company. The Applicant did not engage in that type of conduct, he had not been caught out by the company and indeed the Commission described his conduct as something of a farce. And not to be forgotten is that the Applicant's wife and then the Applicant came forward to disclose the drinking incident and drinking problem, which were matters not known to the Respondent. Who Is The Employer? 74 The Applicant's barrister submitted that Carlton United Breweries was not the employer of the Applicant but: The Continental Spirits Company. The basis of that submission was that the Applicant's contract of employment with the latter named company was still on foot. This was so as the Applicant had corresponded (26/02/04) with a Ms Warner (presumably a person connected with CUB) indicating that he did not agree to the intended integration of his employment contract with CUB, effective March 2004. The Applicant expressed his non-agreement with the integration for certain reasons including accrual of entitlement and different redundancy regimes. 75 Mr Moses opposed this submission and said that CUB was the employer. He said that CUB had commenced paying the salary of the Applicant who had also received a group certificate from CUB. (exhibit 15) Mr Moses advised that he acted for CUB and that the Respondent in these proceedings was a wholly owned subsidiary of CUB. Mr Moses also stated that if the Commission made an Order against the Respondent, then that Order would be complied with by CUB Limited. 76 The Commission makes the finding that CUB Limited is the employer of the Applicant. The Commission relies upon Mr Moses' submission for that finding. The Applicant's case that he had not agreed to a variation of his contract of his employment by CUB Limited and therefore CUB Limited is not his employer is rejected. The Commission does accept that the Applicant has a disagreement with CUB Limited about his terms of employment. SUMMARY 77 The Commission has found, based on a consideration of the evidence, that the dismissal of the Applicant was "harsh": Outboard World Pty Limited v Muir (1993) 51 IR 167 at p 182 In coming to that finding, the Commission has rejected the approach of the Respondent in dealing with the Applicant's conduct. That approach was a narrow one in that it only had regard to the disciplinary provision of the D & A Policy. 78 The circumstances of this case required a broader approach, being recognition and application by the company representatives of the company's Employee Assistance Programme. The Commission found that the EAP Policy was a policy with work to do. It is not a policy of illusion. The EAP Policy had work to do in this case because of the circumstances. Thus, the Applicant's wife and then the Applicant sought assistance for the Applicant's drinking problem and certainly raised seeking assistance under the EAP Policy at the first disciplinary meeting of the parties. The Applicant's wife asked for assistance (but did not refer to the EAP Policy on the Commission's finding) during her Friday night conversation with Mr Carabetta. It was her telephone call that told the company of her husband's drinking problem, about which the company had no knowledge. In this telephone call, she asked for assistance and according to Mr Carabetta (the Respondent's witness), she said she was concerned that her marriage would be affected by the drinking and she was concerned because her husband sometimes picked the kids up after work. This plea from the wife (who, as well, is a former employee working with Mr Jagger) came to nothing. The Applicant himself sought help. The Applicant and/or his wife referred to the EAP Policy at the first disciplinary meeting - but to no avail. The Commission evaluated the EAP Policy and held that it is a policy with work to do. It is a policy that is actioned, on a " if required " basis. There are no conditions, hurdles set in the policy as to the right to action the policy (except for certain criteria relied upon by the Respondent in this case, but which have been rejected by the Commission having regard to the circumstances of this case.) It is not a policy left to the arbitrary discretion of a particular manager as to whether an employee can action the policy but another cannot. 79 Related to the foregoing circumstances, is the Commission's finding that there is a correlation between the Applicant's drinking problem and his stress at work. Witnesses came forward (voluntarily or under subpoena) to give evidence of a particular type of work induced stress suffered by the Applicant. The particular stress was a result of the interpersonal dealings between him and his supervisor, Mr Jagger. Witnesses described Mr Jagger's attitude to the Applicant as denigrating and belittling. Mr Jagger denied this but the Commission was persuaded by the weight of the evidence against Mr Jagger and the demeanour of those witnesses giving that evidence. And so, even on this basis, because of this correlation between his drinking behaviour and a particular work caused stress, the company was required to consider and apply the EAP Policy. 80 Despite the Commission's finding about the company's narrow (incorrect) approach to dealing with the Applicant's problem, the Commission is not condoning the Applicant's conduct of theft of the company's product (the vodka bottle) and the unauthorised consumption of alcohol. However, the Commission considered the concept of "theft" against a specific instance of another employee being caught out stealing/hiding alcoholic bottles in his bag - and contrasted that instance against the "type of theft" of the Applicant which the Commission held had something of the farce about it. 81 Having considered the various factors cited above - the Applicant's conduct on the one hand, but on the other: the Applicant (and his wife) coming forward to advise of the drinking problem and drinking incident at work (contra being caught out), the Applicant (and his wife) seeking assistance and specifically referring to the EAP Policy, the correlation between his drinking problem and a particular work related stress, his employment record and length of service (18 years), the Commission finds that the Applicant's summary dismissal was "harsh". 82 It follows from the foregoing finding that the Commission finds that the company had not carried out on a proper (full) investigation. The Commission notes that the General Manager (Mr Grant) who took the decision to summarily dismiss the Applicant, never appeared as a witness in these proceedings. He was then unavailable to be cross-examined by Mr Prince on the various issues that arose during these proceedings. 83 The Commission has before it an application by Mr Philip Brunt to be reinstated into his former employ. Having considered all of the evidence, the Commission has found the summary dismissal of the Applicant to be "harsh". The Commission has then had to consider the practicality of reinstatement. This is an issue because the Applicant seeks a qualified reinstatement that amounts to a re-employment. That is, the Applicant sought re-employment into his former position but without the occupational health and safety component that was part of his role. Mr Moses opposed such a re-employment application. He said that no evidence had been led from witnesses for the Respondent that such a position existed. He also made the point as to the practicality of reinstatement/re-employment by the Applicant who claimed that the stress at work caused his drinking problem. 84 Having considered the submissions, the Commission has decided to order the re-employment of the Applicant into the position he held at the time of his summary dismissal - but without his occupational health and safety duties. The Commission made an adverse finding about Mr Jagger's attitude towards the Applicant in respect of the working relationship between Mr Jagger and the Applicant at the occupational, health and safety meetings - that is, Mr Jagger belittled and denigrated the Applicant at these meetings. It was also held that there was a correlation between the Applicant's drinking problem and stress at work. Witnesses gave evidence of the Applicant's anxiety in the context of the Applicant's occupational, health and safety duties. Given the foregoing, it would be inappropriate (if not a breach of the Occupational Health and Safety Act), to order an employee to resume such duties which caused him stress (not of his own making) and contributed to his drinking problem. 85 The Commission turns to the issue of loss of earnings. It is the Commission's order that the Applicant be re-employed, without loss of earnings, as if there had been no termination of his employment. The Commission has had regard to the evidence of earnings gained by the Applicant, subsequent to dismissal, and certain statutory criteria under s89 of the Act, in coming to the foregoing order. 86 The Applicant's barrister made a submission that the Applicant be reinstated or re-employed with a final warning, which latter condition was, as the Commission understood it, in recognition of the Applicant's conduct - theft of company product and unauthorised consumption of alcohol. The Commission rejects that submission as being inappropriate under the circumstances. That the conduct took place, there is no dispute. But having considered the evidence as to the cause of the Applicant's drinking problem - the stress at work, the role of Mr Jagger in creating that stress, the failure of the Respondent to apply the EAP Policy, the Applicant's length of service and unblemished employment record - then that "final warning" is not appropriate. O R D E R S 87 The Commission hereby makes the following orders: (1) The Applicant (Mr Philip Brunt) is to be re-employed by CUB Limited into the position he held at the time of his summary dismissal, but without his occupational health and safety duties. (2) That the employment of the Applicant is to be taken not to have been broken by his dismissal. (3) CUB Limited is to pay the Applicant the sum of money (except for overtime) he would have earned, but for the dismissal. (4) That this Order shall take effect on and from 26 August, 2005. A Macdonald Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.