Industrial Relations Commission of New South Wales CITATION: Notification under section 130 by the Seamans' Union of Australia, New South Wales Branch of a dispute with Port Waratah Coal Services Limited re purported termination [2008] NSWIRComm 1096 NOTIFIER PARTIES: Seamans' Union of Australia, New South Wales Branch RESPONDENT Port Waratah Coal Services Limited FILE NUMBER(S): 2252 of 2007 CORAM: Stanton C CATCHWORDS: Industrial dispute- Referral Agreement pursuant to s 146A of Industrial Relations Act 1996 - dismissal on grounds of loss of trust and confidence in employee - dismissal by payment in lieu of notice - dismissal on grounds of misconduct alleged by Union - Alcohol and Other Drugs Policy - conciliation - arbitration - occupational health and safety - coal loading industry - duties and obligations of employer and employees - safe place of work - safe systems of work - safety and policy breach - fitness for work - impairment - procedural fairness - mitigating circumstances - whether dismissal harsh, unjust or unreasonable - dismissal found harsh at lower end of scale - impracticability of reinstatement - no foundation for restoration of employment relationship - compensation ordered. Industrial Relations Act 1996 LEGISLATION CITED: Rail Safety Act 2002 Occupational Health and Safety Act 2000 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Australian Workers' Union New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 Australian Workers' Union New South Wales (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Bechtel Australia Pty Ltd v Unions New South Wales and Others [2007] NSWIRComm 1012 BHP Iron Ore Pty Limited v Construction Mining Energy Timberyards Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Briginshaw v Briginshaw (1938) 60 CLR 336 Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 Day v Lumley Life Limited (1999) 90 IR 70 Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 Fox v Percy (2003) 214 CLR 118 Franklins Ltd v Webb(1997) 72 IR 257 Hollingsworth v Commissioner of Police No 2 (1999) 88 IR 282 Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 Mr Peter Kidd v Linfox Australia Pty Ltd [2008] AIRC 398 Larkin v Boral Construction Materials Group Ltd (2003) 83 WAIG 929 Little v Commissioner of Police (No 2) (2002) 112 IR 212 McLean v Tedman (1984) 155 CLR 306 Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 CASES CITED: Narayan v Inspector Chamings (2007) 169 IR 414 Neat Holdings Pty Ltd v Karajan Holings Pty Ltd (1992) 110 ALR 449 New South Wales Fire Brigade Employees Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440 New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 New South Wales Public Service Professional Officers Association v Forestry Commission (NSW) (1990) 39 IR 46 North v Television Corporation Limited (1976) 11 ALR 599 O'Connor v Commissioner for Government Transport (1954) 100 CLR 226 Oswald v New South Wales Police Service (1999) 90 IR 42 Outboard World Pty Limited t/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Plummer v Stannard Bros Launch Service (2005) 145 IR 111 Port Waratah Coal Services Enterprise Agreement 2007 [2007] NSWIRComm 1093 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services (2006) 153 IR 125 PWCS Limited Enterprise Agreement 2007 Riley v WorkCover Authority [2006] NSWIRComm 108 Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217 Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No 2) [2006] NSWIRComm 328 Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347 WorkCover Authority of New South Wales (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306 HEARING DATES: 26/5/2008, 30/6/2008, 1/7/2008, 2/7/2008 DATE OF JUDGMENT: 10 November 2008 NOTIFIER Mr A Slevin of counsel SOLICITORS Slater & Gordon LEGAL REPRESENTATIVES: RESPONDENT Mr R Warren of counsel SOLICITORS Workplace Law DECISION: 114 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM : STANTON C 10 November 2008 Matter No. IRC 2252 of 2007 Notification under section 130 by the Seamans' Union of Australia, New South Wales Branch of a dispute with Port Waratah Coal Services Limited re purported termination DECISION [2008] NSWIRComm 1096 1 This matter concerns the notification of a dispute by the Seamans' Union of New South Wales ('the Union') on 21 December 2007 pursuant to s130 of the Industrial Relations Act 1996 ('the Act') and was subject to compulsory conference proceedings on 11 January 2008 at the request of the notifier 2 The SUA and Port Waratah Coal Services Limited ('PWCS') are parties to a Referral Agreement pursuant to s146A of the Act entered into on 21 November 2007. That Agreement confers on the Commission the full powers contained in the Act to resolve disputes, including dismissal of employees, through conciliation and arbitration. 3 The dispute was notified in the following terms: 1. Port Waratah Coal Services Limited (PWCS) operates two Coal-Handling Facilities at Carrington and Kooragang Island in or around Newcastle. 2. PWCS employs individuals at both sites who are members of the Maritime Union of Australia (MUA). 3. On 21 November 2007, PWCS filed the PWCS Union Collective Agreement 2007 (UCA) with the Workplace Authority. 4. On 21 November 2007, PWCS made an application in the NSW Industrial Relations Commission, in Matter 07/2077, to, amongst other things, file a Referral Agreement (RA), pursuant to sections 146A and 146B of the NSW Industrial Relations Act 1996. 5. Clause 14(f) of the UCA deals, in part, with Dispute Settlement Procedures and reaffirms that the parties have conferred jurisdiction in the NSW IRC to settle disputes by conciliation or, if necessary, by arbitration, pursuant to the Referral Agreement dated 21 November 2007. 6. The RA, at Recital D, also reaffirms the parties' intentions that the NSW IRC is to be invested with powers to settle disputes about dismissals of employees covered by the UCA. 7. The MUA and PWCS are presently in dispute concerning the purported termination of an MUA member and PWCS employee, Mr Brett Dorsett, for allegedly breaching PWCS Policy, Procedures and OH&S Requirements. PWCS further allege that they no longer retain trust and confidence in Mr Dorsett as an employee. They have purported to terminate his employment effective 18 December 2007 and have indicated an intention to make payment of salary in lieu of notice. 8. The MUA have complied with the sub-clauses 14 (a) to (e) of the Dispute Settlement Procedure in the UCA and sub-clause 2.2 of the RA. 9. The Union, on behalf of Mr Dorsett, requests the assistance of the Industrial Commission of New South Wales to resolve tis dispute. 10. Given that all parties are situated at Newcastle, the Union respectfully requests that the matter be listed for conference in Newcastle as a matter of urgency. 4 During compulsory conference proceedings on 11 January 2008 the Commission issued the following Statement and Recommendation: 1. This matter is before the Industrial Relations Commission of New South Wales in accordance with the provisions of a Referral Agreement filed in the Commission on 21 November 2007 pursuant to ss 146A and 146B of the Industrial Relations Act 1996. 2. Mr J Boyle appeared for the notifier, the Maritime Union of Australia ('the Union'). Mr W Carman appeared for Port Waratah Coal Services Limited ('the company'). 3. During the course of a private conference this morning, the Union raised a number of personal and compelling circumstances on behalf of the employee concerned that were not put to company representatives during the various disciplinary interviews that ultimately led to the termination of his employment on 18 December 2007. For his part, the employee explained to the Commission and company representatives why those reasons were not articulated when he had sought to defend the possible termination of his employment. 4. Both the Union and employee have given undertakings today concerning the employee's commitment to improve his personal health and lifestyle. 5. Against that backdrop and notwithstanding the gravity of the conduct alleged by the company, I made the following statement at the conclusion of this morning's conciliation conference: I issue a strong recommendation that in view of the spirit and intent of the Enterprise Agreement and its objectives to build industrial goodwill amongst the parties, I recommend that the company gives very strong consideration to all matters raised by the employee and Mr Boyle this morning in the context of his defence to his termination of employment. 6. The matter is set down for report back at 12.30pm on Thursday 17 January 2008. 5 PWCS wrote to the Union on 16 January 2008 and advised it was not willing to reinstate Mr Dorsett. Directions for arbitration were subsequently issued on 17 January 2008. 6 At the hearing of the matter on 26 May 2008, Mr A Slevin of counsel appeared for the applicant and Mr R Warren of counsel for the respondent. Counsel raised certain issues regarding the evidence filed which resulted in the Commission issuing further directions for the filing of evidence. That hearing was vacated and the arbitration was relisted to proceed on 30 June, 1 and 2 July, 2008. THE EVIDENCE Mr Brett Dorsett 7 Statements filed on 24 February, 4 April and 26 May 2008 comprised Mr Dorsett's written evidence. He was employed by PWCS for approximately 11 years until his termination on 18 December 2007. At the time of his dismissal he was classified as an Operator Level 2. As such he was qualified to also work as a Control Room Operator and a Wharf Foreman. He was also a member of the PWCS Occupational Health and Safety Committee. 8 Mr Dorsett acknowledged that during 2001, PWCS introduced an AOD Policy which, amongst other things, provided for random alcohol and other drug testing of employees. From the introduction of that Policy he said he was regularly tested for alcohol and other drugs and had tested negative until March 2004 when he tested positive, or non-negative for cannabis. 9 Mr Dorsett deposed that on 23 March 2004 he received a written warning from PWCS following the positive drug test. Between March 2004 and June 2007 he was randomly tested for other drugs approximately four times per year and for alcohol approximately two to three times per year. During that period he had always tested negative. 10 Mr Dorsett said that on 26 June 2007 he arrived at work at approximately 6.00pm with a view to commencing work at 6.30pm. Approximately one hour later he saw his supervisor, Mr Rod Dove in the crib room. At the time he was suffering stomach cramps which were progressively getting worse. A conversation subsequently occurred between Mr Dove and himself with words to the following effect: Dorsett: I need to go home. Rod, I am sick. Dove: Well you've come up for a random alcohol and other drug test. Dorsett: What sort of test? Dove: I don't know. Dorsett: Well, I'm going home sick. I don't see the purpose of having the test when I'm going home sick. Dove: Well they won't like it. Dorsett: Well I'll discuss that when I get back. He said he then left the premises and went home. 11 Mr Dorsett said that on 28 June 2007 he was contacted at home by telephone by Mr Johnson, superintendent operations PWCS Kooragang terminal. A conversation subsequently took place to the following effect: Johnson: Its Wayne Johnson here. I'm chasing you up about the alcohol and other drugs test on your last dog watch. Dorsett: Yes Wayne, what do you need to know? Johnson: I'm ringing to inform you of the AOD Policy and Procedure. Going home sick has put you in the same situation as refusing a test which is then classified as a positive test result. Dorsett: I didn't know it would be classified as positive for going home sick. Johnson: That's the Policy and Procedure. That's the way it stands. It was an alcohol breath test that was required. It will still be required when you return to work on Sunday. You will need to undergo a breath test before you can commence work on Sunday. Dorsett: I'll report to Rod on Sunday. 12 Mr Dorsett said that on 30 June 2007 he consumed three stubbies of full strength beer at lunchtime and at approximately 5.30pm the same day he attended a neighbourhood party at a house in his street. Approximately 20 people were in attendance and he was accompanied by his wife and three children. Mr Dorsett said he left the party at approximately 10.30pm because he knew he had to attend work the next morning and would undergo an alcohol test. He said that during the course of the party he drank between six and eight full strength stubbies of beer as well as three bourbon and cokes. He did not eat a proper meal but nibbled on some chips and nuts. 13 Mr Dorsett said upon his return home he went straight to bed and woke at approximately 5.55am on 1 July 2007. He dressed immediately and drove to work, a drive which takes approximately 30 minutes. He said he did not eat breakfast. When he arrived at work he went to the locker room to change and then went to the crib room and had a cup of coffee. Mr Dove later arrived and gave the normal tool box talk that occurs at the start of every shift. About four to six other crew members were present. At the conclusion of the talk Mr Dove told him to remain behind while the others proceeded to start work. 14 Mr Dorsett said Mr Dove then left the crib room for a short time and when he returned he said words to the following effect: I have been informed by Wayne Johnson that you have to do an alcohol test. He said he then replied with words to the effect of "righto, I'm ready". 15 Mr Dorsett said they then went to the gatehouse which is approximately 200 metres away from the crib room. Located on the wall of the gatehouse and connected to the electricity supply was a machine to breath test for alcohol. He said he had not seen the machine before. Upon arrival, Mr Dove informed the security guard why they were present and the guard provided him with a straw to blow into the machine. He did so and the machine provided a digital readout which indicated that he had returned a positive result of 0.048 per cent BAC. Mr Dorsett said he was shocked and could not recall what was said at the time. However he did recall Mr Dove telling him to go back to the crib room and wait for an hour before doing another test. He said he returned to the crib room and waited there alone. He had a glass of water and after approximately one hour Mr Dove returned and took him back to the gatehouse where he undertook a further test which produced another positive result of 0.022 per cent BAC. 16 Mr Dorsett said he was subsequently asked some questions by the security officer, an employee of a contractor to PWCS concerning how long it was since he had eaten, whether he had smoked a cigarette recently, had any recent medical or dental treatment and whether he had taken any tablets, drugs or insulin. He said he answered no to all these questions and recalled Mr Dove then saying words to the effect: I will have to inform Wayne Johnson by phone what's happened and you have to leave the site. Do you want me to call a taxi? He said he advised Mr Dove that he did not require a taxi and Mr Dove then said: Is there any reason for your coming to work with alcohol in your system? Is there any other problem? Mr Dorsett said he responded with words to the effect: There are no other problems. I did drink last night but I thought I was fit to attend for work. He said he then left the site and drove home and told his wife what had occurred. 17 Mr Dorsett said he returned to work on 2 July 2007 at 6.30am. Prior to commencing work he was breath tested again at the gatehouse in the presence of Mr Dove, a security guard and Mr Phil Spence, his Union delegate. The test produced a negative result and he commenced work. He said that during the course of the day he was called into Mr Johnson's office where Mr Dove and Mr Spence were also present. Mr Johnson said words to the following effect: I'm very disappointed about Sunday's outcome especially when you were given advance warning. It was very stupid and we are very upset. Mr Dorsett said he replied with words to the following effect: I am quite shocked myself and surprised that I was still over the limit. 18 Mr Dorsett deposed Mr Johnson subsequently explained he was to be given a written warning and the warning would be placed on his personnel file. He was also advised that he would be subjected to two random alcohol and other drug tests within the next six months, the first of which was to take place during August. Mr Johnson also advised that if a further breach occurred within the next 12 months, further disciplinary action would occur including "possible termination of employment". In addition, Mr Johnson required him to attend for counselling with Mr Kerry Berry, the employee assistance provider (EAP) and, in consultation with Mr Dove, he was required to develop a rehabilitation plan which was to be supplied to Mr Johnson by the end of July 2007. 19 During the course of the week commencing 2 July 2007, Mr Dorsett said he rang Mr Berry to arrange a meeting. Mr Berry informed him that he was off site and that he could catch him on "that number" at any time to arrange a meeting in the near future. He said he telephoned Mr Berry the following week and was told that he was driving to Sydney. He asked him to ring him back at another time to arrange a meeting. Mr Dorsett said he telephoned Mr Berry again approximately one week later and left a message on his answering service explaining who he was and that he was ringing to arrange a meeting. He and requested Mr Berry call him back. Mr Berry did not return his call. 20 Mr Dorsett said he tested negative to a random alcohol test during August 2007. 21 Mr Dorsett deposed that in mid June 2007 his brother was diagnosed with cancer and in mid July 2007 he was referred to a medical specialist who arranged his immediate hospitalisation and surgery. 22 Mr Dorsett said that during the week commencing 10 September 2007 he had a conversation with Mr Dove in his office. Mr Dove said words to the following effect: We have to get this rehabilitation plan worked out for your fitness for work. Wayne Johnson wants it in writing. He replied: What does he want me to write? I can explain my fitness for work face to face. If he wants it in writing I need another meeting with him so he can explain what he wants to me. 23 At that time Mr Dorsett said he had also informed Mr Dove he had attempted to contact Mr Berry on three occasions with no result and advised him that Mr Berry had not returned his last call. 24 Mr Dorsett said he met with Mr Johnson and Mr Dove on 11 September 2007 and during the meeting Mr Johnson produced a letter addressed to him setting out what he viewed as the history of the matter. Mr Johnson required him to countersign the letter and he refused because it did not fully set out the facts as he knew them. He was not provided with a copy. Mr Johnson then explained to Mr Dorsett he wanted a written rehabilitation plan which would be better than a simple verbal response. Mr Johnson directed him to contact Mr Berry once more. 25 Mr Dorsett said he contacted Mr Berry after the meeting and arranged to meet with him. He said he met Mr Berry in his office on site either that day or the following day. During the meeting he explained to him what had occurred and Mr Berry provided him with tips on how to reduce alcohol consumption. He said at the end of the meeting Mr Berry informed him that he believed he had the situation under control and said there was no need to meet with him again as long as "I kept my head down and concentrated". 26 Mr Dorsett said that following his meeting with Mr Berry he wrote his rehabilitation plan which he provided to Mr Dove on 19 September 2007. A meeting was subsequently arranged with Mr Johnson, Mr Dove and himself where he formally presented the rehabilitation plan to Mr Johnson. Mr Johnson confirmed that he had followed through with what was required and told him that he would be "keeping an eye on my performance and my fitness for work". 27 Mr Dorsett deposed that on about 20 September 2007 he received a letter from Mr Dove on behalf of Mr Johnson. A copy of his rehabilitation plan was attached. He recalled that between 20 September 2007 and early December 2007 he had one random alcohol and one random other drug test and had tested negative to both. 28 Mr Dorsett deposed he assisted his brother during this period taking him to and from the hospital for sradiotherapy. This placed a lot of stress on him and his family and in October 2007 his wife moved out and "took the kids". As a result he was at home by himself, lonely and at a loss of what to do. He said he also felt depressed and found himself going to the pub more often for company. Nonetheless during the period July to early December 2007 he had tested negative to all random alcohol and other drug tests. 29 Mr Dorsett said that on the night of 6 December 2007 he had half a dozen puffs of a marijuana cigarette in the car park of the pub. He said he would not normally have done this but was with a group of people and felt socially compelled to join in. He said "it was an aberration but a foolish one" and while it does not justify his behaviour, he was not helped at the time by the circumstances of the absence of his wife and family and brother's illness. He said it was certainly not something that he had a habit of doing. 30 Mr Dorsett deposed that on 8 December 2007 he was on the day shift and during the course of the morning he was asked to provide a random urine sample for a drug test. That test returned a non negative result and was sent to the laboratory for a confirmatory test. He was sent home from work pending the confirmatory test. Prior to the test he had had four days off. On 10 December 2007 he self tested for other drugs and that test was negative. Later that day he was contacted by Mr Johnson who informed him of the consequences of the non negative test and said he could not return to work until the confirmatory test had been completed. He said he advised Mr Johnson that he had self tested that day and that it was negative. However Mr Johnson stated that he could not return to work until the results from the laboratory were received and they would then meet. 31 Mr Dorsett deposed Mr Johnson telephoned him on 11 December to advise the confirmatory test had not been received. He was ultimately called to a meeting with Mr Johnson on 14 December 2007 where Mr Dove and Ms Kate Jackson were also present with Mr Dennis Outram, the Union site delegate. At the outset of the meeting Mr Johnson handed everyone a copy of a letter addressed to him dated 14 December 2007. 32 Mr Johnson explained the letter and confirmed that the laboratory test had proved positive for cannabinoids. Mr Dorsett was informed that he was suspended without pay until 3.00pm on 18 December 2007, when he would meet with the terminal manager. He was also required to provide a written response to the allegations by 2.00pm on 17 December 2007. 33 Mr Dorsett said that during the course of the meeting Mr Dove spoke in support of his work performance and indicated that there were no issues related to his performance and he was a reliable employee. However, Mr Dove also stated that these comments did not counter balance the seriousness of the matter. 34 Mr Dorsett stated Mr Outram spoke in support of him at the meeting including his personal situation. He also referred to his 11 years of service and unblemished work record. He told Mr Johnson that Mr Dorsett had the support of his colleagues. 35 Mr Dorsett recalled that during the meeting Mr Johnson said words to the following effect: There may be things put in place Brett that you will not like but you will have to abide by them as part of your discipline. He said he gained the impression that he was not going to be terminated but would " have to live with some fairly severe restrictions on my future behaviour at work ". At the end of the meeting Mr Outram asked Mr Johnson whether there was any advantage in Mr Dorsett going to the gatehouse and doing a urine test as he had self tested the previous Monday and the result was negative. Mr Johnson told Mr Outram that it would definitely work to his advantage prior to the meeting with the terminal manager. 36 After the meeting Mr Dorsett went with Mr Dove and Mr Outram to the gatehouse where he self tested in the presence of the security guard. The test was negative. 37 On 17 December 2007 Mr Dorsett provided his written response to the allegations and Mr Outram provided a written submission of support. 38 Mr Dorsett attended a meeting with the terminal manager, Mr Carman at 3.00pm on 18 December 2007. Ms Jackson and Messrs Johnson, Dove and Outram were also present. Mr Dorsett deposed Mr Carman commenced the meeting by highlighting the seriousness of his third breach of the AOD Policy and reminded him of his obligation to follow that Policy and for the need for PWCS to have trust and confidence in him. Mr Carman then asked him to explain his actions to which he replied: I am aware of the seriousness of the breach. I am sorry for what I have done and for my misjudgement and stupidity. I was in the wrong place at the wrong time. I am aware of the severity of my actions. All I ask of you is for a chance to redeem myself and to prove my commitment to work. I have 11 years unblemished work service. I acknowledge from here on that there would have to be zero tolerance and I would have to stick to my rehabilitation plan. 39 He said Mr Dove spoke highly of his work ethic once more without detracting from the seriousness of what had occurred. He said Mr Carman then said words to the effect: The seriousness of the breach is high. We need a 5 minute break to consult amongst ourselves to make a decision. 40 Mr Dorsett said approximately 10 minutes later the meeting reconvened and Mr Carman handed a copy of a letter to everyone present. He then went through the contents of the letter dated 18 December 2007 and advised that the decision had been made that Mr Dorsett should be terminated. 41 Mr Dorsett telephoned Mr Carman on 19 December 2007 in an effort to arrange a meeting with the general manager of PWCS, Mr Graham Davidson. Mr Carman later confirmed that a meeting had been arranged for 10.00am on 20 December 2007 and he could attend with a support person. Accompanied by his wife, he attended that meeting with Mr Davidson. Another person from PWCS was also present but he could not recall his name. During the meeting he explained to Mr Davidson what had happened and his circumstances including his employment history. He also provided Mr Davidson with a letter from his doctor, Dr Nicholas Scott dated 19 December 2007. 42 Mr Dorsett said that after hearing his explanation of events Mr Davidson told him and his wife to wait outside for five minutes. After about 15 minutes, they were called back in and advised that, amongst other things, the decision to terminate Mr Dorsett's employment would not be revoked. 43 Mr Dorsett deposed that at none of the meetings with representatives of PWCS did he ever refer to his personal problems relating to his marriage and his brother's illness as he felt that these matters were private. 44 Mr Dorsett deposed that upon termination he received a payment of $22,000 which included all his statutory entitlements and four weeks' notice. He said he was unemployed from 18 December 2007 to 4 February 2008 when he commenced full time employment at a transport company as a driver. He was earning $680.00 to $700.00 nett per week as opposed to $1,400.00 nett at PWCS. His current employer had a zero tolerance policy on alcohol and drugs. He said his wife worked part time, three days a week at the TAB and earned approximately $300 to $400 nett per week. He said his current liabilities were a mortgage of $400 per week, car repayments of $140 per week and $60 per week mortgage repayments on an investment property. His children, aged 15, 13 and 10 were in full time education. 45 Mr Dorsett deposed that since his termination he had reconciled with his wife and the family had reunited. His brother's cancer was now in remission and he had returned to full time employment. 46 Mr Dorsett stated he had undertaken six sessions of drug and alcohol counselling with the Hunter Health Centre. His most recent visit was 27 June 2008. 47 In his Statement in Reply filed on 4 April 2008 Mr Dorsett referred to Mr Dove's Statement filed on 13 March 2008 and stated that on 26 June 2007 he was working in the 7.01 transfer house and not the 4.01 transfer house as contended by Mr Dove. Further he did not have a two way radio whilst at work that night as he was not issued with one. Mr Dorsett said he became ill that night and returned to the crib room where he rang Mr Dove and told him that he was ill and was going home. Mr Dove subsequently asked him where he was and when he replied that he was in the crib room, Mr Dove told him that he would come and see him. According to Mr Dorsett, Mr Dove arrived at the crib room shortly thereafter and a conversation took place. He denied that he said the following words to Mr Dove "I don't want to do a test and I'm going home", on the grounds that at the time he did not know he was going to be subject to a random alcohol and other drug test. 48 Mr Dorsett further denied that Mr Dove said to him "Brett, you realise by not doing a test it will be classed as a positive result." Mr Dorsett stated that at no time during his conversation with Mr Dove was he told that if he did not do the test it would be classed as a positive result. Mr Dorsett also denied stating the following words to Mr Dove "I wouldn't pass a test - I've had a smoke." In that regard, Mr Dorsett contended that it would have made no sense for him to have made such a statement as he did not know whether the proposed test related to alcohol or other drugs. 49 In relation to the alcohol test undertaken at approximately 7.15am on 2 July 2007, Mr Dorsett refuted Mr Dove's version of events that he told Mr Johnson that he had stopped drinking before midnight. He further denied that he became angry during the meeting with Mr Johnson, although he did admit he was in an agitated state as he knew the situation was serious. 50 Mr Dorsett agreed with Mr Dove that two formal meetings were held on 2 July 2007. In relation to the second of those meetings Mr Dorsett could not recall being given a deadline of 31 July 2007 to contact Mr Berry. Rather, it was his understanding that he was required to contact Mr Berry within the next few weeks. Further, he did not recall Mr Johnson telling him that he needed to get adequate rest before he came to work. 51 With respect to Mr Dove's written evidence that Mr Dorsett had told him that he had tried to contact Mr Berry and had left a message on his answering machine, he denied stating "He will have to contact me, we're both busy people." 52 Mr Dorsett further stated that to the best of his recollection on one occasion he said words to the following effect to Mr Dove "Kerry Berry is a missing person. Guess we have both been busy. I am waiting on his return call." 53 Mr Dorsett further agreed that on 18 August 2007 he undertook a scheduled other drugs test and not a random alcohol test as set out in his first Statement. Mr Dorsett took issue with Mr Dove's Statement that Mr Johnson believed he was not taking the matter seriously. 54 With respect to the Statement of Mr Johnson filed on 13 March 2008, Mr Dorsett denied that on 26 June 2007 Mr Dove had discussed with him the ramifications of leaving the site and not undertaking the necessary test. He further stated that he was unaware that leaving the site would be considered a level 1 breach under the AOD Policy until he was informed of this by Mr Johnson on 28 June 2007. He further denied that he had told Mr Dove that he was unwilling to conduct the test as he had recently used marijuana. 55 Mr Dorsett referred to the AOD Policy and Procedure that was introduced in 2001 and set out under Annexures A and B to Mr Johnson's Statement. In relation to these documents Mr Dorsett contended that he had received no training in relation to the use and/or misuse of alcohol and other drugs by PWCS since the initial presentation of the Policy and Procedure in 2001. Consistent with that initial presentation and his general knowledge he was of the view that in turning up to work on 1 July 2007 he would not be in breach of the Policy. 56 Mr Dorsett denied Mr Johnson's contention that he was not keen to give him a copy of his action plan towards rehabilitation. In the alternative he stated he had showed Mr Johnson a copy of the action plan during a meeting on 19 September 2007 and later gave a copy to Mr Dove. 57 Mr Dorsett said during the course of the meeting on 14 December 2007 he could not recall Mr Johnson using words to the effect of "and it is fair to advise you that PWCS is now contemplating terminating your employment." 58 Mr Dorsett's third Statement filed on 26 May 2008 referred to the Statement of Shaun Sears filed on 18 April 2008 as follows: I refer to paragraph 11 of the Sears Statement. I did speak to Mr Sears at that time. The purpose of my conversation was to get a clear understanding as to how the AOD Policy worked and how it would affect my return to work from a holiday I had planned. I was going on a golfing trip with 40 others and knew there would be alcohol and marijuana consumed on the bus both up and back. In that conversation: (a) I did not say words to the effect of " We are going to get on it". (b) I did not say words to the effect of " Can you arrange for me not to be subjected to alcohol and other drug tests for a couple of weeks after my return." (c) Mr Sears did not say " I can't do this and will not do this. It's a mandatory safety policy and testing is random. My job is to implement the policy in my area of accountability and ensure that our people are fit for work." (d) I did not say " I want to smoke on the bus trip up and back and will need to take more holidays." Mr Dorsett deposed he recalled Mr Sears stating words to the effect of " My advice would be to have some early and stop in the last few days to clear your system ." Mr Sears had also suggested that Mr Dorsett take some self testing kits on the trip with him. 59 With reference to Mr Sears' Statement that a series of employee briefings were conducted in August/September 2001, which included the content of the AOD Policy procedure as introduced, Mr Dorsett stated that whilst he was present at the presentation in or about 2001 by Mr Sears he could not recall the detail of that presentation and "never understood that leaving the site sick when tests were being conducted was regarded as a refusal to test." 60 Mr Dorsett further contended there were two occasions prior to 2007 when he was selected for testing but was not tested because he had to leave the site and on those occasions he was not regarded as having refused a test. He elaborated that the first occasion was around late 2005 or early 2006 when he was on day shift. On that occasion he returned to the crib room about 8.30am and was told by his supervisor that he was required to undertake a test. He said the testing van was outside the crib room and he agreed to take the test. He subsequently left the site to obtain a crib meal and when he returned the van had gone. Accordingly, there was no test and no subsequent follow up about that test, nor was he regarded as having refused a test under the Policy. 61 Mr Dorsett stated the second occasion was in or around mid 2006 when he was also working day shift and he was told by his supervisor, Mr Gary Herret that he was required to undertake an alcohol or other drug test. He said that two hours later he received a telephone call and had to return home to deal with a domestic issue. He contended he informed Mr Herret who agreed to the request. He said he was not tested nor was he required to be tested again when he returned to work the next day. Similarly this was not considered to be a refusal to test. 62 In cross examination, Mr Dorsett confirmed to Mr Warren that between 2004 and the end of 2007 he had a history of using drugs such as cannabis and alcohol. Mr Dorsett further confirmed that he had tested positive to cannabis in workplace tests undertaken in 2004 and as recent as December 2007. Mr Dorsett also confirmed that when he spoke to Mr Sears prior to the golfing trip when he had expressed that alcohol and cannabis would be used by persons travelling on the bus, he wanted to obtain a clear understanding as to how the AOD Policy worked and how that Policy would affect his return to work after the golfing trip holiday. Mr Dorsett said that he knew that under the Policy he was not to attend for work any time under the influence of alcohol or having recently used cannabis. Mr Dorsett confirmed that when he sought to speak to Mr Sears he knew at that time he was going to be using cannabis and consuming alcohol during the holiday. Insofar as the Policy was concerned, Mr Dorsett said he knew employees were required to attend for work clean of cannabis and not under the influence of alcohol irrespective of whether they had a single day off or had been on holidays for a week or more. 63 Mr Dorsett denied saying to Mr Sears "we're going to get on it", meaning drugs and alcohol and seeking a dispensation from Mr Sears not to be tested for a couple of weeks after his return to work. Simply put, it was Mr Dorsett's evidence that he was seeking advice from Mr Sears about "the best way to handle it" consistent with the requirement of the Policy that no employee can attend for work under the influence of alcohol or cannabis. He was adamant that he had never asked Mr Sears for a dispensation or "for any sidelining of the Drug and Alcohol Policy". In his view, he was simply seeking some advice and for Mr Sears to explain the Policy in an off the record discussion in Mr Sears' office. 64 It was also Mr Dorsett's evidence that Mr Sears had intimated to him that "you ought to have some early and stop the last few days to clear your system". Mr Dorsett denied that he had displayed a reasonably cavalier attitude to drugs and alcohol during 2004. He dismissed the proposition that drinking alcohol and using cannabis was more important to him than his work. In rejecting the suggestion that he had continued to drink to excess and smoke cannabis right through 2007, he confirmed that he tested positive to alcohol in June 2007 and had tested positive to cannabis in December 2007. 65 Mr Dorsett accepted the proposition that when Mr Sears presented the AOD Policy during 2001 a slide was presented entitled "Testing", "Refusal, Avoidance or Falsification" that stated "refusal to undergo testing has a similar consequence to recording a positive test result". 66 Mr Dorsett confirmed there was an occasion during late 2005 or early 2006 when he left the site to obtain a crib when he knew that he was required to undertake a test. He further stated that he did not undertake the required test and contended there was no follow-up or warning given to him. 67 Mr Dorsett stated he left the site occasionally during a day shift to obtain a crib for himself and sometimes for others. He confirmed that he was aware that prior to leaving the site he was required to seek permission from his supervisor. Mr Dorsett confirmed the testing van would park outside the crib room. He also confirmed that the test van would be visible to employees who entered the PWCS worksite through the employees' car park. He further confirmed that in the event an employee was moving around the site in a company vehicle, that employee would normally park near the crib shed and therefore close to the testing van. 68 Mr Dorsett said that when he left the site in late 2005 or early 2006, he noticed the testing van was parked near the crib shed. However when he returned the testing van was no longer parked in its previous location. Mr Dorsett confirmed he left the site at approximately 8.30am for some 15 minutes. He also agreed the official records served on his solicitor stated the testing van did not leave the site until 10.45am. Mr Dorsett admitted he had left the site without the permission of his supervisor Mr Dove. Mr Dorsett also agreed with the proposition that he knew he was required to undertake a test that day. Mr Dorsett denied that he remained off site until the van had left at 10.45am. 69 Mr Dorsett denied that on 26 June 2007 Mr Dove had squarely put to him if he went home and did not do the test it would be classed as a positive test. He also confirmed when he arrived at work he did not complain to Mr Dove or inform him that he felt unwell. Mr Dorsett stated he had asked Mr Dove what type of test he was required to undertake on as "just a natural reaction". Further, he also denied expressing a concern to Mr Dove that the required test might be a test for cannabis. In the alternative, Mr Dorsett stated he had informed Mr Dove that he was going home sick before asking a question concerning the type of test. 70 Mr Dorsett denied that when he left the crib room to commence work he saw the testing van was parked outside. He also denied that he heard the radio call to come back to the crib room and undertake the required test, on the grounds that he was working in the transfer house and did not have a radio. Mr Dorsett admitted that he was driving a company vehicle fitted with a two-way radio when he sought to find Mr Dove and inform him that he was going home. He denied that he heard Mr Dove's call on the two-way radio for Mr Dorsett and others to return to the crib room for the purpose of undertaking the required test. While he maintained his decision to inform Mr Dove he was going home sick was taken prior to knowing drug testing would be undertaken, he admitted that when he returned to the crib room a testing van was parked outside. 71 It was Mr Dorsett's evidence that when Mr Dove entered the crib room and said "I need to speak with you", he did not say "I don't want to do the test. I'm going home". He also confirmed Mr Dove had made it clear to him that he was required to undertake the test before he left the site. He also confirmed he had asked Mr Dove what sort of test he was required to undertake and in reply, when Mr Dove said "I don't know", he proceeded to state words to the effect "I'm going home sick, I'm not doing the test". In that regard Mr Dorsett contended Mr Dove responded with words to the effect "You can go. They're not going to like it". Mr Dorsett rejected the proposition that the reason for wanting to leave the site was due to the fact that he had recently smoked cannabis and knew that he would not pass the test. Mr Dorsett was emphatic Mr Dove did tell him failure to take the would be classed as a positive test. 72 Mr Dorsett confirmed that when he returned to work on 1 July 2007 he knew he was required to undertake an alcohol test as Mr Johnson had contacted him at home. Mr Dorsett said he was unaware that a breath analyser machine was located in the gatehouse at the entrance to the Kooragang terminal. He was also unaware of the ability of employees to self check prior to attending for work until quite recently when Mr Dove took him there on 1 July 2007 to undertake an alcohol test. Mr Dorsett said that he had consumed some alcohol during a neighbourhood party on 30 June 2007 and recalled that he had stopped drinking well prior to midnight. He agreed with Mr Warren that a breach of the AOD Policy was a serious matter and would have serious consequences. Whilst he knew that he would be required to undertake an alcohol test prior to the commencement of work on 1 July 2007, he denied that a positive test at 6.00am displayed a non-caring attitude towards the Policy. Rather, he put the breach down to his own misjudgement that he did not leave the party early enough to allow for a 6.00am start the following day. Mr Dorsett agreed that on both 30 June and 1 July 2007 he was aware the situation concerning his employment was serious and, notwithstanding that situation, he attended the party and drank a significant amount of alcohol. 73 Mr Dorsett confirmed when he met with Mr Johnson and Mr Dove on 2 July 2007, Mr Johnson read a letter to him that contained a warning concerning the implications for breach of the AOD Policy and in addition Mr Johnson had read the following words: As advised on Monday 28 June 2007 you will be subject to two random alcohol and other drug tests within the next six months. He agreed the letter also stated that the first of those tests would occur within one month and if a second breach occurred within the next 12 months further disciplinary action would occur up to and including termination of employment. In that regard he confirmed he had been squarely put on notice that he was required to undertake two further random alcohol and other drug tests. 74 Mr Dorsett admitted that notwithstanding Mr Johnson's warning, he had knowingly consumed cannabis in December 2007 and had subsequently tested positive. Mr Dorsett agreed he had been instructed by Mr Johnson and the letter had also stated that he was required, in consultation with Mr Dove, to develop a rehabilitation plan to resolve his fitness for work issues. He also agreed Mr Johnson had stressed that he was required to provide a copy of the rehabilitation plan by 31 July 2007. However, Mr Dorsett said while he was not sure of the exact date, he was aware he was required to discuss the matter with Mr Dove and seek the required counselling. 75 Mr Dorsett could not specifically recall, but later agreed Mr Johnson had said to him that the level of risk in the operation of PWCS' plant and equipment, for himself as well as other team members, was high when he was under the influence of alcohol or other drugs. He also agreed that he was required to drive certain equipment on site including a utility work vehicle and the coal reclaimer, when it was not operating automatically. He further agreed that on occasions he was required to drive a stacker and perhaps less rarely, bobcats and front end loaders. He also agreed that he would regularly drive a ship loader and on occasions when he worked in the control room he would control the movement of coal around the whole site using various pieces of equipment. When working in the capacity of wharf foreman he would also advise and instruct the loader operator in his operations. 76 Mr Dorsett recalled that on 11 September 2007 Mr Johnson made a further request to attend the necessary drug and alcohol counselling with Mr Berry and said to him that by failing to attend counselling he had demonstrated he was not seriously dealing with his alcohol issues. He further agreed he said words to the effect he had tried to ring Mr Berry who had not returned his calls. He also recalled Mr Johnson saying to him that PWCS' patience was swiftly running out but he could not recall Mr Johnson saying that as an absolute last resort he would be sacked. Mr Dorsett confirmed the rehabilitation plan was finally provided to PWCS on 19 September 2007. Mr Dorsett agreed the one page rehabilitation plan he prepared did not deal with the issue of cannabis consumption. 77 Mr Dorsett confirmed that at no time during December 2007 or January 2008 did he say to PWCS or any of its officers, including the general manager, Mr Davidson, that he had stopped using cannabis, had arranged to attend a drug clinic and had prepared a plan for getting off cannabis "once and for all". 78 Mr Dorsett said he was aware that termination was an option available to PWCS when he tested positive to having consumed cannabis in December 2007. Mr Dorsett said he was also aware PWCS was contemplating the termination of his employment when Mr Johnson wrote to him and stated: It appears that PWCS's recent tests simply confirms the pattern of behaviour in which you have failed in your obligation to be a trustworthy employee who PWCS can have confidence in. Frankly PWCS cannot see how it can have trust and confidence that you will turn up to work in a fit state to safely perform your duties. Mr Dorsett said he was aware that he had been invited to provide written details to PWCS setting out any valid reason for the latest test results and any reasons why PWCS should not bring his employment to an end. He further confirmed the gist of his response was " my timing was out ". 79 Mr Dorsett denied he decided to seek counselling for his drug and alcohol problems after the decision was made to seek his reinstatement. In support of that proposition, he said he first spoke to his doctor in December 2007 and it was not until the end of February 2008 that counselling was arranged. He further agreed that in all the discussions and meetings that he had with Mr Dove, Mr Johnson, Mr Carman and Mr Davidson concerning his performance he had not advised any of those persons that he had been to see his doctor to arrange counselling. He later confirmed that he had first sought the assistance of his doctor on 20 December 2007. 80 With respect to PWCS sponsored counselling, Mr Dorsett said he had met with Mr Berry on site in October 2007 and he had a further meeting with him in December following his termination. Mr Dorsett stated that Mr Berry's evidence that he could not recall being contacted or having met with Mr Dorsett in 2007 was simply untrue. 81 In re-examination Mr Dorsett recalled that on the day he left the site to get a crib he had come off the ship loader and upon entering the crib room at around 8.30am a supervisor informed him that he was to undertake a test for alcohol and drugs. In response he said "yes, okay, that's fine". He obtained a cup of coffee and sat outside the crib room and watched a person enter the van. He said that while drinking his coffee he saw someone go into the van and someone come out. When he later came out of the crib room to go to the testing van, the door was shut. He concluded the door was shut because somebody was taking a test and decided to leave the site and obtain a crib. He recalled mentioning to someone in the crib room that he was going to the shop to obtain a crib. He also restated it was PWCS policy for employees notify their supervisor before leaving site. He said supervisors normally agreed to a request to leave the site so he decided to obtain the crib without seeking the required permission. Upon his return he recalled he came straight back to the crib room and had not made any diversions to other work sites along the way. However the test van had gone. 82 Mr Dorsett stated that when he prepared the rehabilitation plan in September 2007 he did not mention cannabis because the discipline issue related to alcohol. Mr Dennis Outram 83 Statements filed on 21 February and 4 April 2008 comprised Mr Outram's written evidence. Mr Outram deposed he had been employed by PWCS at its Kooragang terminal for approximately 24 years. His current classification was Operator Level 2 and for the past six to seven months he had been employed as a relief supervisor. He had been the Yard Delegate for the Union for the last eight years and prior to that was a shift delegate for some 16 years. 84 On or about 11 December 2007 he had a conversation with Mr Spence, a shift delegate who advised him that Mr Dorsett had tested positive to a random alcohol and other drug test for the third time within a period of 12 months and that he and Mr Dorsett were due to meet with Mr Johnson, superintendent operations to discuss the situation on 13 December 2007. 85 On or about 12 or 13 December 2007, Mr Outram deposed Mr Johnson telephoned to advise him of the situation concerning Mr Dorsett and invite him to a meeting arranged with Mr Dorsett on 14 December 2007 at 10.00am. He deposed that he subsequently attended the meeting which included Mr Johnson, Mr Dove, Ms Jackson, Mr Dorsett and himself. 86 At the commencement of the meeting, Mr Outram said he sought an assurance that Mr Dorsett would not be discriminated against on the basis of his inability to put things in writing or to explain himself verbally. He was assured that he would be given a proper opportunity to be heard and that his lack of verbal or written skills would not prejudice the outcome. 87 Mr Outram deposed that during the meeting he said it was inappropriate to compare "apples with apples" and referred to another employee who had been dismissed a few months earlier due to a breach of PWCS' AOD Policy. He said that on that occasion, the Union had accepted the decision of PWCS. However, Mr Dorsett's case was somewhat different particularly having regard to his exemplary work record which PWCS should take on board. Mr Johnson subsequently handed out a copy of a letter dated 14 December 2007 and addressed its contents. 88 Mr Outram said he informed the meeting that the issues surrounding the earlier dismissal were different. The Union had shown its bona fides in the previous matter and would be supporting Mr Dorsett on this occasion. He said Mr Dove said words to the following effect: I am disappointed that Brett has done what he has done, he has let the team down and he has let me down. However, Brett is a very good worker and one of my best employees. He has my support. 89 Shortly thereafter, a PWCS representative suggested that Mr Dorsett had not undertaken the required counselling when he had been directed to do so. In response, Mr Dorsett explained what had occurred and confirmed that he had undertaken the counselling. However, there had been some related scheduling problems. 90 Mr Outram deposed that he specifically recalled Mr Johnson saying words to the following effect to Mr Dorsett: You may not like the penalties we put on you but it may be something you are going to have to put up with. He said that he understood Mr Johnson to be indicating that "the penalty the company will impose on Mr Dorsett would be something less than termination of employment" and that response had provided him with a level of comfort. He had also raised with Mr Johnson "whether it would be a useful idea" for Mr Dorsett to undertake a further drug test at the gatehouse as Mr Dorsett had mentioned that he had self tested negative the previous Monday. Mr Johnson agreed and the test undertaken in the presence of Mr Dove and himself was negative. 91 Mr Outram stated he had two or three further conversations with Mr Dove who whilst recognising the seriousness of the matter, had also stated his support for Mr Dorsett due to his excellent work performance and record. He later informed Mr Jim Boyle, Branch Secretary of the Union what had occurred and that a further meeting with Mr Carman had been arranged for 18 December 2007. He said Mr Boyle had asked him whether he should also attend the meeting and it was subsequently agreed his attendance was unnecessary because Mr Johnsons's words and active support for the further drug test on 14 December 2007 had given him "a level of comfort about what would occur and that I had a feeling that PWCS was going to slap Mr Dorsett hard but not terminate him". 92 Mr Outram deposed that on 17 December 2007, he provided a written submission to PWCS on behalf of Mr Dorsett and marked Annexure "A" to his Statement. He attended the meeting the following day with Mr Dorsett, Messrs Carman, Johnson, Dove and Ms Jackson. At the outset, he reiterated it was important that Mr Dorsett be given an opportunity "to show how fair dinkum he was regardless of his verbal or written skills" and was assured by the PWCS representatives that would be the case. 93 Mr Outram recalled that during the meeting, Mr Carman spoke concerning the background of the matter and its seriousness. He further spoke of the need for PWCS to have trust and confidence in Mr Dorsett and for Mr Dorsett to have regard for his fellow employees. Mr Carman invited Mr Dorsett to explain himself. Mr Outram said Mr Dorsett was quite nervous and said words to the following effect: I was in the wrong place at the wrong time. I am very sorry. I will do whatever it takes from here on in. 94 Following Mr Dorsett's explanation, Mr Outram said words to the following effect: Brett has the support of his Union and the support of his fellow workers. We want to support him in getting back to work. Mr Outram recalled that shortly thereafter, Mr Dove made similar comments to those he made at the meeting on 14 December 2007 about Mr Dorsett. 95 Following a short adjournment to allow PWCS to consider the matter further, Mr Carman handed a letter to Mr Dorsett which stated he "was to be terminated immediately with pay in lieu of notice". Mr Carman subsequently addressed some of the matters contained in the letter with particular reference "to the lack of trust in confidence PWCS had in Mr Dorsett". Mr Outram had this response: ... rather ironic to say the least when up until little more than a week before that day PWCS had sufficient trust in confidence in Mr Dorsett to be working in the control room and acting as a wharf supervisor ... Mr Dorsett had recently assisted a committee set up by PWCS to avoid collisions. I was shattered and gob smacked at the decision. 96 In his second Statement filed on 4 April 2008, Mr Outram referred to the Statement of Mr Dove filed 13 March 2008 and deposed that during the meeting on 14 December 2007, he had asked Mr Johnson "are Brett's circumstances going to be treated the same as others?" He was referring to a former employee, Mr Craig Mason, who was terminated in October 2007 in different circumstances. He could not recall Mr Johnson commenting that Mr Dorsett was reluctant to seek counselling. However, he did recall that Mr Dorsett explained that he had not been reluctant but rather, there had been some scheduling problems with the counsellor. This position was agreed to and the meeting moved on. 97 In cross examination Mr Outram could not recollect Mr Johnson telling him that he should seek advice and assistance in compiling the required letter setting out Mr Dorsett's reasons for the positive test result and associated matters. Mr Outram stood by his earlier evidence that Mr Johnson said words to the following effect to Mr Dorsett: You may not like the penalties we put on you but it may be something you are going to have to put up with. 98 Mr Outram referred to the Statement of Mr Johnson filed on 13 March 2008 and said he could not recall Mr Johnson providing Mr Dorsett with copies of the AOD Policy and Procedure developed in 2001 following consultation with the single bargaining unit (SBU) of which he was a member. At the time the SBU was told the AOD Policy and Procedure would be updated over time and this had not occurred. 99 Mr Outram said that with respect to what is known as 'Level 3', where there are three positive tests within a 12 month period, the AOD Procedure provides that such a result may lead to termination of employment. At this level there is a discretion in PWCS to terminate or otherwise. It is not a case of three strikes and you are gone. In that regard Mr Outram said: I believed that PWCS would exercise its discretion in Mr Dorsett's favour by not terminating him having regard to Mr Johnson's comment at the meeting on 14 December and the different circumstances related to Mr Mason, who, unlike Mr Dorsett, was a threat to the occupational health and safety of fellow workers. Mr Dorsett had the support of his fellow workers and there were complaints about his work performance and, up to December 2007, PWCS had engaged Mr Dorsett in positions of trust. 100 Mr Outram confirmed that while there had been some minor revisions to the AOD Policy, to his knowledge the procedures to be taken pursuant to that Policy had not changed. He also confirmed that when the Policy was first discussed, it was raised in the context that no employee, whether they be an apprentice or the general manager, shall attend work under the influence of alcohol or under the influence of other drugs. He said the Policy formed part of a platform of occupational health and safety procedures that were applied within the PWCS site. 101 He agreed with the proposition put to him that plant located on site, which included stackers, reclaimers, bob cats, front-end loaders, ship loaders, conveyer belts carrying coal and trains moving on the site meant that it would be totally unsafe for anybody to be working on the PWCS site who was under the influence of alcohol or other drugs. He also accepted the proposition that it would be a real concern for PWCS if anyone was on site working within that plant under the influence of alcohol and other drugs. He agreed that if the policies and procedures of PWCS were not followed there was the potential for death or serious injury. 102 Mr Outram stated that prior to 14 December 2007, he was unaware Mr Johnson had informed Mr Dorsett, both in writing and verbally, that if a second breach occurred he would face further disciplinary action up to and including termination of employment. Mr Outram said he only became aware of the 2 July 2007 incident on 11 December 2007. However, he did confirm that on and after 14 December 2007, he knew that PWCS was beginning to doubt whether it had the trust and confidence that Mr Dorsett would turn up for work in a fit state to safely perform his duties. 103 Mr Outram said he took Mr Dove's Statement that Mr Dorsett was one of the best and valuable operators on his team as a Wharf Foreman and Control Room Operator to mean that Mr Dove supported him. He later agreed that neither Mr Dove nor Mr Johnson had said that Mr Dorsett had an exemplary work record - they were his words and were uttered in the absence of any knowledge that Mr Dorsett had received a warning regarding drug and alcohol use in 2004 and written warning regarding drug and alcohol on 2 July 2007. 104 Mr Outram agreed that the statement attributed to Mr Johnson to the effect "you may not like the penalties we've put on you, but it may be something that you are going to have to put up with", may have been an interpretation when Mr Johnson recalled he said "there will be consequences from today. They may not be what everyone wants, but they will be considered in light of the circumstances". Further, notwithstanding the written advice from Mr Johnson to Mr Dorsett to the effect "we want you to give reasons as to why we shouldn't terminate your employment", Mr Outram maintained his view that the penalty PWCS was likely to impose on Mr Dorsett was something less than termination. 105 Mr Outram stated he had concluded Mr Dorsett had an exemplary work record in the absence of knowing that he had been given a drug and alcohol warning in 2004 and a written warning regarding drug and alcohol on 2 July 2007. 106 Mr Outram agreed with the proposition that the AOD Policy was a defensive policy designed to prevent people from working under the influence of alcohol and other drugs and to "prevent them turning up for work in that condition as well as to detect if they are at work". Mr Wayne Jolly 107 A Statement filed on 26 May 2008 comprised Mr Jolly's written evidence. Mr Jolly deposed that he had been employed by PWCS for approximately 12 years and was currently engaged as an Operator Level 2. He was also qualified to work as a control room operator and from time to time had worked as a live run co-ordinator. 108 Mr Jolly further deposed that in or about 2001 PWCS introduced an AOD Policy and pursuant to that Policy employees of PWCS were required to undergo random alcohol and other drug tests. He had been regularly tested for alcohol and other drugs pursuant to that Policy. 109 In or about January 2002 or January 2003, Mr Jolly deposed that to the best of his knowledge he had tested positive to a random drug test for cannabis. In or about January 2007, whilst working on day shift, his supervisor Mr Duane Siever informed him that he was required to undertake a test pursuant to the AOD Policy. He said that he and Mr Siever had a conversation to the following effect: Jolly: Is it drugs or alcohol? Siever: I don't know. Go to the testing van and find out. Mr Jolly deposed he subsequently went to the testing van and spoke with a female tester and then had a conversation to the following effect: Jolly: What sort of test is it? Female tester: It's a drug test. Jolly: I've just been to the gents. I'll have a cup of tea and come back. He deposed that at the time he was feeling unwell and approached Mr Siever and a conversation to the following effect ensued: Jolly: I'm not feeling real good Duane, I want to go home sick. Siever: Well you better go home. Mr Jolly deposed that he subsequently got changed and went home. He later saw his family doctor who diagnosed him with gastroenteritis and provided him with a medical certificate for two days off work. 110 Upon his return to night shift, Mr Siever advised him shortly after the toolbox meeting that as he had not undertaken the required test he was required to undergo an alcohol and other drug test before he could start work. Accordingly, he undertook the required test at the gatehouse and as the tests were negative he subsequently commenced work. He further deposed that he was not disciplined in relation to this incident. 111 In cross examination Mr Jolly confirmed that later during the day that he went home sick Mr Siever had telephoned to inform him that he should have undertaken the required alcohol and other drug test before he left PWCS. 112 There was no re-examination of Mr Jolly. Mr Rod Dove 113 Statements filed on 13 March, 18 April and 30 May 2008 comprised Mr Dove's written evidence. Mr Dove deposed that he had been employed by PWCS for some 20 years and his current role was a shift supervisor - Shift 3, Kooragang terminal where he was responsible for a team of 25 employees. Mr Dorsett was a member of his team. 114 Mr Dove deposed that at approximately 6.50pm on 26 June 2007 a representative from Frontline informed him a random alcohol and drug test was scheduled to commence at 6.30pm that evening. The representative subsequently showed him a list of names which included operators and tradespersons. The list should have been made available earlier and there was no breakdown of employees scheduled for either the alcohol or other drug tests. 115 Mr Dove deposed that as he had already conducted the tool box meeting he proceeded to access two or three operators for immediate processing by Frontline. As those operators were processed he sent them on site to relieve other operators at different work stations so they in turn could be processed. Other operators were called by two-way radio to attend the testing van. 116 Mr Dove deposed that by approximately 7.30pm two operators, namely Mr John Crew and Mr Dorsett remained unaccounted for. Accordingly he went looking for these employees in the 4.01 transfer house, which is a site where radio transmissions are sometimes unable to be heard. As they were not there, he proceeded to the car park where the testing was being conducted and was informed by Frontline that Mr Crew had undertaken his test. 117 While in the car park and walking towards the crib room he received a telephone call on his mobile phone from Mr Dorsett and had a conversation with him with words to the following effect: Dorsett: Rod, I just wanted to let you know I am going home. Dove: Where are you as I need to speak with you. Mr Dove deposed that as he entered the crib room he saw Mr Dorsett standing inside. He subsequently ended the phone call and the following conversation ensued: Dorsett: I don't want to do a test and I'm going home. Dove: I need you to undergo a test before you leave site. Dorsett: What sort of test? Dove: I don't know. Dorsett: I'm going home sick and I'm not doing the test. Dove: Brett, you realise by not doing a test it will be classed as a positive result. Dorsett: I wouldn't pass a test - I've had a smoke. 118 Mr Dove deposed shortly after 8.00pm he telephoned Mr Johnson to inform him that Mr Dorsett had been scheduled to take an alcohol and drug test that evening and instead he said that he was unwell and needed to go home. 119 Mr Dove stated he advised Mr Dorsett of the consequences of leaving the site would constitute a refusal to do a test. He further stated Mr Dorsett had said to him that it did not matter as he was too sick to stay at work. In response Mr Johnson advised him Mr Dorsett was required to provide a negative test result before he returned to work. 120 The following day, 27 June 2007 Mr Johnson telephoned him to discuss Mr Dorsett's refusal to take the test the previous night and he also asked him about his discussions with Mr Dorsett prior to his decision to leave the site. He stated that he had a conversation with Mr Johnson in words to the following effect: Dove: I made it clear to Brett so he understood this would be considered a first breach under the Policy. Brett told me the reason he refused a test was because he had smoked a joint. Johnson: I will think further on the issues and contact Brett. 121 Mr Dove further deposed that between 27 June and 1 July 2007, Mr Johnson contacted him at home to discuss Mr Dorsett's return to work. He said Mr Johnson was firm that because Mr Dorsett was scheduled to undertake an alcohol test the previous Tuesday evening, PWCS would request him to undertake an alcohol test before he returned to work. He further stated that he would inform Mr Dorsett of that requirement. 122 Mr Dove deposed that on 1 July 2007 Mr Dorsett contacted him at approximately 6.30am and stressed he was required to undertake an alcohol test before he commenced work that morning. 123 Mr Dove deposed that at approximately 6.45am on 1 July 2007 he took Mr Dorsett to the gatehouse where he undertook an alcohol test using a wall mounted unit. Mr Dorsett registered a positive reading of 0.048 percent BAC. Mr Dove stated that after this reading he took Mr Dorsett back to the amenities building where he made him wait an hour before retesting. 124 At approximately 7.00am Mr Dove telephoned Mr Johnson to advise him of Mr Dorsett's positive result. Mr Dove deposed Mr Johnson expressed concern Mr Dorsett had posted a 0.048 percent BAC positive reading and in that regard noted that the AOD Policy specifically required an employee such as Mr Dorsett to have a one hour break before being further tested. 125 Mr Dove deposed that at approximately 7.50am he took Mr Dorsett to the gatehouse for a re-test which subsequently recorded a reading of 0.022 per cent BAC. That result was formally recorded by the security guard Mr Terry Gawn. In a conversation with Mr Gawn, Mr Dorsett confirmed that he had not smoked a cigarette prior to the test nor was he currently taking any medication including tablets, drugs or insulin. He also confirmed that he had not received any recent medical or dental treatment. 126 Mr Dove deposed that he subsequently took Mr Dorsett to the supervisor's office where he read to him the relevant parts of the AOD Procedure. He said a conversation between Mr Dorsett and himself took place with words to the following effect: Dove: Do you require a taxi to take you home. Dorsett: No. Dove: Do you have any underlying reasons for coming to work with alcohol in your system? Dorsett: I attended a street party last night and drank some beer, I thought I was right to come to work as I stopped drinking at around midnight. Dove: Do you have any personal problems that PWCS could help you with. Dorsett: There are no personal or other problems. 127 Mr Dove deposed that shortly after 8.00am he telephoned Mr Johnson to inform him Mr Dorsett's confirmatory test was positive with a reading of 0.022. He advised Mr Johnson he had made it clear to Mr Dorsett that he would have to provide a clear test prior to his next rostered shift. He also informed Mr Johnson that Mr Dorsett was not taking responsibility "... because he did not see it as a problem. He just said he had a few too many drinks last night and that it was bad timing." 128 Mr Dove deposed that on 2 July 2007 he attended the gatehouse with Mr Dorsett where he undertook an alcohol test which subsequently provided a negative reading. Mr Dorsett later returned to his normal shift duties. Later that day Mr Dove stated he attended a meeting with Mr Johnson, Mr Dorsett and his support person Mr Spence to discuss Mr Dorsett's two breaches of the AOD Policy. He deposed Mr Johnson had expressed disappointment towards Mr Dorsett's actions and said words to the following effect to Mr Dorsett: "You've had three days notice and you come to work and test positive." Mr Dorsett explained that he had been to a street party and thought that he would be alright by 6.00am. The meeting subsequently adjourned to a later time that day. 129 When the meeting reconvened at approximately 4.00pm Mr Johnson issued Mr Dorsett with a written warning letter. Consistent with that letter Mr Johnson informed Mr Dorsett that he was required to seek counselling and to contact PWCS' Employee Assistance Program counsellor Mr Berry by 31 July 2007. He also informed Mr Dorsett that he was required to prepare a fitness for work plan and set out in detail how he proposed to manage his problems. 130 Mr Dove deposed Mr Johnson then said to Mr Dorsett in words to the following effect: You need to manage how you come to work, you need to know when to stop alcohol consumption prior to attending work, you need to know to get adequate rest before you come to work. You also need to keep Rod informed of your progress. The plan should also manage relapses. 131 Mr Dove deposed that in early August 2007 he spoke to Mr Dorsett on two occasions to request an update of his rehabilitation plan. In response Mr Dorsett informed him he had tried to contact Mr Berry but had been unable to do so. He said he had left a message on his answering machine and commented "He will have to contact me, we are both busy people." He subsequently undertook to address the fitness for work plan requirement. 132 Mr Dove deposed that on 18 August 2007, Mr Dorsett returned a negative result for an other drugs test conducted by Frontline. Frontline also advised there was a trace of a substance, probably THC, but insufficient to test "non-negative". 133 In response to a question from Mr Dove enquiring as to whether Mr Dorsett could still be using cannabis, a Frontline employee conceded that the trace of substance might simply be residue from his last incident in July 2007. Mr Dove deposed that he did not discuss this matter with Mr Dorsett as he had provided a negative sample. 134 Mr Dove deposed that on either 20 or 21 August 2007, Mr Johnson requested an update on Mr Dorsett's rehabilitation plan. The following email forwarded to Mr Johnson on 22 August 2007 conveniently summarised the issues: From: DOVE, Rod Sent: Wednesday, 22 August 2007 2.20AM To: Johnson, Wayne Subject: Mr Dorsett Wayne, Had a discussion with Brett re his rehab plans. He told me again that he had tried to contact Kerry Berry, but was unable to, and instead had left a message! He showed reluctance to make further attempts after I had made that suggestion, saying that it was up to Kerry to contact him as they were both busy people. In regard to his rehab plan & his fitness for work issues, he thinks that he has covered that by telling me that "it won't happen again". The plan that he was to provide a copy to you was an issue to him, as he did not think that he had agreed to making a written plan. On reading the relevant extracts from his letter back to him, he picked up the last paragraph, which stated that "if there is anything you do not understand etc" and he said he would try to seek further clarification from you on Monday 27th. In view of the path the discussion took I deemed it prudent not to give any form of encouragement in regard to his work performance. Rod Dove 135 Mr Dove deposed that following Mr Dorsett's return from leave on 11 September 2007, he attended a further meeting with Mr Johnson, Mr Dorsett and Mr Spence to discuss Mr Dorsett's actions following his two breaches of the AOD Policy. During that meeting, Mr Johnson requested Mr Dorsett to undertake counselling and said words to him to the following effect: Brett, you are not showing us that you are dealing with your fitness for work issues in that you haven't contacted the counsellor regarding your alcohol breaches at work and you haven't developed a plan in writing as required. 136 Mr Dove said Mr Dorsett was reminded of the requirement to complete and file a fitness for work plan and undertake the required counselling. Mr Dove stated Mr Dorsett provided him with a one page document setting out his objectives to present himself for work on 19 September 2007. A copy of Mr Dorsett's action plan was attached to Mr Dove's Statement under Annexure E as follows: Aims for me to present myself fit 4 work Participate in more gym work when convenient; Take notice of consumption of beverages the day prior to commencing work; Try to take couple of hours downtime before start of night work; Keep an eye on diet and intake; Aim more at healthy rather than happy; Reduce smoking; Keep in touch with the supervisor about progress; Consume something before start of work (food); Have more understanding of standard drink. 137 Mr Dove further deposed that on 20 September 2007 he provided Mr Dorsett with correspondence acknowledging that he had completed his requirements with respect to counselling and the required plan to resolve his fitness for work issues. A copy of that correspondence was attached to his Statement as Annexure F where the third paragraph stated: As discussed, your performance in this regard will be monitored. If there are further occurrences of unacceptable behaviour or breaches of PWCS' Alcohol and Other Drug ("A&0D") Policy or Procedure, further disciplinary action will be taken. The final paragraph also stated: If there is anything that you do not understand about this letter or what is expected of you, please contact myself to discuss. 138 On 8 December 2007, Mr Dove advised Mr Dorsett that he was scheduled for an alcohol and other drug test. Mr Dorsett subsequently completed the test and returned a non negative result. The test result indicated the presence of THC. Mr Dove subsequently had a conversation with Mr Dorsett where he said words to the following effect: Oh shit, I'm sorry. I smoked a joint on Wednesday and thought I'd be all right by today. It's just bad timing. He informed Mr Dorsett about the requirements of the AOD Policy who subsequently left the site pending the pathology report to Frontline. 139 Mr Dove stated he later informed Mr Johnson that Mr Dorsett had returned a non negative result which was subject to further laboratory analysis. In response Mr Johnson said this incident brought Mr Dorsett down to level 3 under the AOD Policy. Mr Dove said Mr Johnson contacted him on 13 December 2007 to advise Mr Dorsett's confirmatory test had returned a positive result for cannabinoids and he had organised a meeting with Mr Dorsett on 14 December. The meeting was subsequently arranged and Mr Dorsett attended that meeting with his support person, Mr Outram. Mr Johnson and Ms Jackson were also present. 140 At the commencement of the meeting, Mr Dove said he provided Mr Dorsett with a summary of the events leading up to the meeting and said to him words to the following effect: Brett, you are a solid operator as a wharf foreman and control room operator. This doesn't negate the seriousness of why we are here today. I am very disappointed in your actions. Mr Johnson subsequently confirmed his disappointment at Mr Dorsett's recent conduct. Shortly thereafter he said Mr Outram entered the conversation with words to the following effect " Are Brett's circumstances going to be treated the same as others?" Mr Dove said the reference to " others " was a reference to a former employee, Mr Craig Mason who had been terminated on 18 October 2007. He said the conversation continued as follows: Outram: Some employees are more valuable than others. Johnson: Each case is treated on its own merits, all cases are different. At this point Mr Johnson provided Mr Dorsett with a letter setting out his history with respect to his conduct regarding the AOD Policy. The following paragraph was set out at the bottom of page 2 of that correspondence: By providing a further positive test result within a 12 month period you have again breached the A and OD Policy and Procedure. In accordance with the Procedure disciplinary action will be taken and it is fair to advise you that PWCS is now contemplating terminating your employment. The letter continued as follows on page 3: It appears to PWCS that this recent test simply confirms a pattern of behaviour in which you have failed in your obligation to be a trustworthy employee who PWCS can have confidence in. Frankly, PWCS cannot see how it can have trust and confidence that you will turn up to work in a fit state to safely perform your duties. You are now suspended without pay until 3pm Tuesday 18 December 2007 when you are required to attend site for a meeting with the Kooragang terminal manager in the main administration building. You may bring a support person with you. In the meantime, would you please supply me with a letter setting out the following: (a) Any valid reason for the latest results showing a positive result for cannabinoids; (b) Any reason as to why PWCS should not bring your employment to an end. Brett, in your written response, you should not only address the reason for the positive drug test, but also address the question of how you can rebuild the confidence that PWCS requires in you as an employee. You will be required to provide me with your response at 2pm, Monday 17 December - your response will then be assessed. You may discuss this matter with your Union and/or employee representatives and if you require access to the PWCS Employee Assistance Program, please let me know. If there is anything that you do not understand about this letter or what is expected of you please contact me to discuss. 141 Mr Dove deposed he and Mr Johnson subsequently discussed Mr Dorsett's response and that put forward on behalf of the Union by Mr Outram. After considering both letters he and Mr Johnson agreed Mr Dorsett had not addressed the necessary actions that were requested of him. 142 In cross examination Mr Dove stated that it was unusual to be given a list of names of employees scheduled for a drug and alcohol test after he had conducted the daily toolbox meeting. Normally, he would advise those required to undertake a test that it would be conducted that day. He said when he was given the list of names he decided to contact employees by two-way radio and follow up the relevant call to Mr X and Mr Y by sending employees who had already undertaken their test to find those employees who were required to return to the crib room. He accepted if Mr Dorsett was working in the 7.01 transfer house or the 4.01 transfer house that day, he may not have heard the two-way radio announcement. 143 Mr Dove recalled that when he first saw Mr Dorsett, he told him he was going home because he was sick. He also confirmed this conversation took place before he was able to inform Mr Dove about the requirement to undertake a drug or alcohol test. As a result of some confusion on the part of Mr Dove recalling whether or not Mr Dorsett had told him he wanted to go home because he felt sick, the following exchange took place: Slevin: So your account from the notes you made on the night of the conversation are that "Whilst in the car park, I received a call on my mobile phone from Brett Dorsett to inform me that he was going home. I asked Brett where he was as I needed to speak with him and as I entered the crib room saw him inside, and then he told me that he did not want to do a test because he was going home. I requested him to have a test and he asked 'What sort of test?' I said I did not know what sort of test was involved, and again he said that he was going home and not doing a test". Now that email seems to indicate the conversation ended there. The conversation ended at that point and is that a true reflection of what was said in your conversation with Mr Dorsett? Dove: No. After - the last paragraph there where I said I did not know what sort of test was involved, again he said he was going home. In hindsight I think that's when he said he was going home sick and I informed him there that by going home and not doing a test it would be classified as a positive result. Slevin: And the conversation ended at that point, did it? Dove: He said he couldn't see any reason for doing the test if he was sick and he was going home. 144 Mr Dove admitted the email he sent to Mr Johnson on 1 July 2007 and the notes he took on 26 June 2007 should have stated: That he said that he was going home sick, not doing a test, and that I informed him that by not doing a test it would be classified as a positive result. He also admitted that in preparing his Statement filed on 13 March 2008 he had not seen Mr Dorsett's first Statement. 145 In response to a series of questions from Mr Slevin, Mr Dove agreed that in terms of preparing his Statement, he appears to give a full account of the conversation with Mr Dorsett on 26 June 2007 and the gist of the conversation set out in his notes for June and July. He subsequently confirmed that Mr Dorsett had said words to the effect "I wouldn't pass a test. I've had a smoke." He also confirmed that he had informed Mr Dorsett that PWCS would regard his refusal to undertake a test as being a first positive under the Policy, notwithstanding the fact that there was no reference to this position in the warning letter given to him on 2 July 2007. 146 He also confirmed that while he had access to the AOD Policy, he did not have a copy with him when he spoke to Mr Dorsett on 26 June 2007. Moreover since 26 June 2007 he had not checked whether his actions were in accordance with the AOD Policy and Procedure. 147 Mr Dove agreed that an outright refusal to supply a breath or urine sample was regarded as being a breach of the Policy. In further cross examination concerning that part of the Policy regarding "refusal or falsification of tests", Mr Dove confirmed that in Mr Dorsett's case, the Frontline collector was not aware of his refusal and accordingly the collector was unable to initiate steps 1 to 4 under the AOD Policy with respect to a refusal to test. 148 Mr Dove further confirmed Mr Dorsett had made an admission concerning his use of cannabis on 26 June 2007. However, he failed to record those events until he prepared his Statement filed on 13 March 2008. He denied the proposition put by Mr Slevin that in providing evidence in these proceedings he was seeking to assist the Company prosecute its case. 149 In terms of the administration of the Policy, Mr Dove denied Mr Dorsett's account of events that on 1 July 2007 he was simply told to go home. Mr Dove stated Mr Dorsett had been offered transport home but he had declined that offer. Mr Dove was also certain that following the test he took Mr Dorsett back to his office where the relevant sections of the Policy were read to him. 150 With respect to the rehabilitation plan required by PWCS, Mr Dove confirmed he had not approached Mr Dorsett during July to enquire about his progress with respect to preparing that document. At the request of Mr Johnson Mr Dove said he approached Mr Dorsett during early August to enquire about the status of the rehabilitation plan and he subsequently sent an email to Mr Johnson on 22 August updating what had occurred. 151 With respect to the conversation that took place in early August with Mr Dorsett, Mr Dove stated: My conversation with Mr Dorsett indicated Mr Dorsett did not want to put anything in writing. He knew what the request was. He did not want to put it in writing. He did not see there was a problem. 152 In re-examination, Mr Dove confirmed that the wall mounted breath analyser unit located in the gatehouse was calibrated on a regular basis by a specialist contractor. Mr Wayne Johnson 153 Statements filed on 13 March and 18 April 2008 comprised Mr Johnson's written evidence. Mr Johnson deposed he was currently employed by Rio Tinto Coal Australia in the role of production manager at the Blair Athol Mine in Queensland. He further deposed that between 19 June 2006 and 29 February 2008 he was employed by PWCS as operations superintendent, Kooragang terminal where he led the team in unloading trains and loading vessels to maximise throughput with due regard to safety, environment and cost. He stated that Mr Dove and Mr Dorsett reported to him. 154 Mr Johnson deposed that on 26 June 2007 at approximately 8.15pm Mr Dove, the shift supervisor, telephoned him to advise that during the alcohol and other drug testing that evening Mr Dorsett had said that he was unwell and needed to go home. He said Mr Dove stated he discussed the ramifications of leaving site with Mr Dorsett and Mr Dorsett's response was it did not matter as he was too sick to stay at work and provide a sample. 155 The following day, 27 June 2007, he spoke with Mr Dove in his office about the events concerning Mr Dorsett. He also asked Mr Dove to set out the gist of the conversation he had with Mr Dorsett prior to him leaving site. Mr Dove subsequently relayed the gist of the conversation to him with words to the following effect: Dove: Brett is aware that this could be considered a Level 1 breach under the A&OD Policy. Brett told me in confidence that he was unwilling to conduct the test as he recently used marijuana. Johnson: I will consider the circumstances and contact Brett. 156 On 28 June 2007, Mr Johnson deposed that he telephoned Mr Dorsett to discuss his non participation in the test and the following conversation ensued: Johnson: PWCS is required to follow the A&OD Procedure and as a result of your non participation in providing a sample for analysis your actions have constituted a Level 1 breach of the A&OD Policy. Dorsett: I understand the situation. Johnson: You will be required to provide a clear sample for analysis on Sunday morning, prior to the commencement of your shift as per the A&OD Procedure. In fairness this sample to be provided prior to your next rostered shift will be an alcohol test as was intended on Tuesday evening. Do you have any questions and do you understand what is expected of you on your return to work? Dorsett: No I don't have any questions. Johnson: I will meet with you on Monday to discuss this work performance issue. 157 Mr Johnson deposed that on 1 July 2007, Mr Dove telephoned him prior to 7.00 am and advised that Mr Dorsett had undertaken an alcohol test at the gatehouse and the initial result was 0.048 percent BAC. Mr Johnson deposed he was extremely surprised by this news. He said Mr Dove also expressed his shock and disappointment at the result. Mr Johnson stated he informed Mr Dove a reasonable period of at least an hour was required prior to Mr Dorsett providing a confirmatory BAC analysis consistent with the AOD Procedure. 158 Mr Dove telephoned him shortly after 8.00am to advise Mr Dorsett's confirmatory test had resulted in a positive reading of 0.022 percent BAC. Mr Dove also said he had discussed with Mr Dorsett the activities he had undertaken the previous day and had offered him transport home. He also instructed Mr Dorsett of the requirement to provide a satisfactory BAC analysis prior to the commencement of his next rostered shift. 159 Mr Johnson deposed Mr Dove told him that Mr Dorsett claimed he had had a few too many drinks the previous night and there was no other explanation for his conduct. Mr Johnson deposed that on 2 July 2007, he met with Mr Dorsett and his support person, Mr Spence and Mr Dove to discuss the recent events concerning what appeared to be two breaches of the AOD Policy. He deposed that during that meeting the following conversation occurred with words to the following effect: Johnson: What is the general nature of the illness that required you to leave site on Tuesday 26 June 2007. Dorsett: I had an upset stomach and it was more than likely gastro or something I had eaten. Johnson: Can you recall our phone conversation from Thursday 28 June 2007? Did I advise you that by leaving site and not participating in an A&OD test that your actions constituted your positive test result under PWCS A&OD Policy? Did Rod advise you of the need to participate in an A&OD test prior to the commencement of your next rostered shift? Dorsett: Yes Johnson: What were you thinking? Do you understand the seriousness of where your actions have led you? Dorsett: I just overdone it on the day prior to coming back to work. Johnson: I've spoken with Rod and interacted with you previously at work and we both conclude that you're generally a good performer at work. What perception do you think I can draw from your actions given that you have refused to undertake a test and went home. Putting that aside without jumping to conclusions we organised in fairness for you to come and conduct the same test that you were required to undertake on Tuesday night for Sunday morning, with three days notice and you turn up drunk? Dorsett: I wasn't drunk. Johnson: Drunk was probably the wrong word but what am I to think about this? Dorsett: I just overdone it. Johnson: Are there any outside issues that PWCS may be able to provide assistance or resources to help you with? Dorsett: I don't have any issues that need assistance, I'm not an alco or anything like that. Johnson: It's not just alcohol that I'm asking about, are there any other issues that for example PWCS Employee Assistance Program may be able to assist with. At this stage of the meeting Mr Dorsett became defensive. Dorsett: I don't need any help. Johnson: I can understand what we're talking about is very personal in nature and I'm not trying to have a go at you I'm just trying to understand the issues. I will consider the events that we have just discussed and meet with you again after I have reached a decision on an appropriate course of action. 160 Mr Johnson deposed that later during the morning of 2 July 2007 Mr Dove informed him Mr Dorsett had requested a private meeting without his support person to discuss the events that had taken place over the previous week. In reply Mr Johnson said he was available any time that day to meet with Mr Dorsett. Accordingly, he met with Mr Dorsett after lunch that day and a conversation to the following effect occurred: Dorsett: I accept responsibility for my actions and apologise for getting my back up in our previous meeting. Johnson: This is very serious and ultimately unless you change your actions your job at PWCS will be at risk. Are there any other things that you need to discuss with me and tell me privately that may have led to your actions over the last week. Dorsett: I don't have any issues and give you a commitment that we will not be discussing AOD issues again. Johnson: I will consider the events that we have discussed and meet with you again after I have reached a decision on an appropriate course of action as a result of the seriousness of AOD breaches. 161 Later that afternoon Mr Johnson said he met again with Mr Dorsett, Mr Spence and Mr Dove where he issued Mr Dorsett with a written warning letter setting out the reasons for the warning and the actions required by PWCS to improve his work performance. Mr Johnson said he read the letter to Mr Dorsett and later told him he would need to prove to PWCS that he respected its safety policies and procedures. He said the level of risk within the operations of PWCS presented to Mr Dorsett and other team members when he was under the influence of alcohol or drugs was high. 162 Mr Johnson said he told Mr Dorsett there was a need for him as a peer elected OH&S representative (proxy) for his team to set an example for others to follow in the workplace. He said the issues at hand were serious. However, his work performance record had provided him with an avenue for discretion at this stage of the procedure and process. He said the requirements outlined in the written warning letter were designed to assist Mr Dorsett and not punish him. Mr Johnson deposed that at the end of the meeting Mr Dorsett responded as follows: "I can handle what you've asked of me in the letter and work with Rod to achieve this". 163 Mr Johnson deposed that on 22 August 2007 Mr Dove sent him an email concerning Mr Dorsett's requirement to prepare a rehabilitation plan. The email advised Mr Dorsett had attempted to contact Mr Berry but was unable to do so. Mr Dove stated in the email Mr Dorsett had suggested it was up to Mr Berry to contact him "as they were both busy people". Mr Dove's email also suggested that in regard to Mr Dorsett's rehabilitation plan and his fitness for work issues, Mr Dorsett believed he had covered those matters because he had informed Mr Dove that "it won't happen again". Mr Johnson further deposed that following the receipt of Mr Dove's email of 22 August 2007 he requested Mr Dove arrange a meeting with Mr Dorsett who was then on annual leave until 11 September 2007. 164 Mr Johnson stated that in preparation for this meeting he contacted Ms Kate Jackson, special advisor people resources and requested her to ascertain whether Mr Dorsett had in fact been in contact with Mr Berry. Ms Jackson subsequently advised him that Mr Berry saidS he had not received any message from Mr Dorsett. 165 Mr Johnson deposed he subsequently met with Mr Dorsett and Mr Dove on 11 September 2007 to discuss the obligations placed on Mr Dorsett following the written warning letter issued on 2 July 2007. Mr Johnson deposed he had sought a commitment from Mr Dorsett to attend further drug and alcohol counselling. He said following that request he and Mr Dorsett had a conversation with words to the following effect: Johnson: Brett, by not attending counselling you have demonstrated that you are not seriously dealing with your alcohol issue. Dorsett: I tried to ring him but he hasn't rang me back – what am I meant to do? Johnson: I'm not going to get into the detail about whether you have or you haven't rang Kerry. We require you to attend counselling by contacting PWCS Employee Assistance Provider (EAP), Mr Berry. I also require you to develop a rehabilitation plan to manage and ultimately resolve your fitness for work issues. PWCS' patience with you is swiftly running out. You have received a written warning for breaching PWCS AOD Policy and Procedure which required you to action these items. You have been provided with an opportunity to show that you are dealing with your fitness for work issues but you have failed to do so. Dorsett: I've told you I don't have any issues and why isn't my word good enough, why do I have to deliver these things in writing that you've requested. Johnson: I trust that you will improve as you have indicated. The action plan is to assist you in identifying the steps so we don't have a reoccurrence and yes I want this all in writing so if you do not follow through PWCS can consider other options. Dorsett: What sack me? Johnson: That's an absolute last resort, but as I said if you don't follow through on your actions there may be further consequences. 166 Mr Johnson said he subsequently presented Mr Dorsett with a further letter outlining the requirement for him to attend counselling. The final two paragraphs stated: Brett, frankly, PWCS' patience with you is swiftly running out. You have received a written warning for breaching PWCS' AOD Policy and Procedure which required you to action these items. You have been provided with an opportunity to show that you are dealing with your fitness for work issues but you have failed to do so. If you do not action the items mentioned above in the designated timeframes further disciplinary action will occur. If there is anything that you do not understand about this letter or what is expected of you, please contact either myself or your supervisor to discuss. 167 Mr Johnson deposed that on 19 September 2007, Mr Dove informed him that Mr Dorsett had completed his action plan although he was not keen to supply a copy to PWCS. Accordingly, he subsequently arranged a meeting with Mr Dorsett and Mr Dove later that day to discuss the matter. Mr Johnson deposed Mr Dorsett informed him he had completed the plan. However, when he asked Mr Dorsett for a copy he replied as follows: We've already talked about this. I've done what you've asked, why do you need a copy? 168 Mr Johnson said in reply he informed Mr Dorsett it was important that he put pen to paper, commit to his actions, ensure he followed through and if this was done the issues could be put to rest. Mr Johnson stated that Mr Dorsett supplied a copy of his action plan later that afternoon. 169 On 8 December 2007 Mr Dove contacted him by telephone to advise Mr Dorsett had undertaken a random other drug test and the test had returned a non negative result. He said Mr Dove had informed him that the test sample had been sent for confirmatory laboratory analysis. Mr Johnson stated both he and Mr Dove had expressed their mutual disappointment in response to the test result. Mr Johnson deposed that on 10 December 2007, he met with Mr Dorsett where he had a conversation with words to the following effect: Johnson: You will be suspended from site without pay until we have a meeting. I would like to meet with you on Thursday 13th December 2007. This will allow time for the confirmatory results as I do not want to conduct an investigation prior to having a confirmed result. You need to bring a support person. Dorsett: I understand why the meeting is Thursday. So I have to have a support person? What does that mean? Johnson: By the procedure you would know that this could be a Level 3 breach, this is the level of seriousness we are at, do you still have the copy I provided you? Dorsett: I do but it's in my locker at work. Johnson: If you have any questions you can ring me to discuss. Dorsett: I'll chase it up and have a read. 170 Mr Johnson said later that afternoon Mr Dorsett contacted him concerning the level 3 breach of the Policy. In response Mr Johnson said he informed Mr Dorsett the penalty relating to a level 3 breach included termination of employment and accordingly, given the level of seriousness, instructed Mr Dorsett that he required a support person. Mr Johnson said he further explained to Mr Dorsett he had been suspended in line with the Policy where employees are suspended without pay until a confirmatory result is received by PWCS. Mr Dorsett subsequently replied he would organise Mr Spence to attend as support person. However, Mr Johnson said he thought as an alternative he could ring Mr Outram. Mr Johnson also said that on 12 or 13 December 2007 he telephoned Mr Outram to arrange his attendance at a meeting scheduled for 14 December 2007. 171 Mr Johnson deposed he was subsequently advised Mr Dorsett's laboratory test had returned a positive result for cannabinoids. 172 Mr Johnson deposed he met with Mr Dorsett, Mr Outram, Mr Dove and Ms Jackson on 14 December 2007. During the meeting he provided Mr Dorsett with the following documents: PWCS AOD Policy PWCS AOD Procedure PWCS Disciplinary Procedure A letter dated 14 December 2007 173 Mr Johnson stated that at the commencement of the meeting Mr Dove outlined Mr Dorsett's history with PWCS and his fitness for work plan. Shortly thereafter he informed Mr Dorsett he was one of the best and most valuable operators on his team as a Wharf Foreman and Control Room Operator. He stated it was unfortunate these attributes did not negate the reason for the meeting. 174 Mr Johnson stated he subsequently provided Mr Dorsett with the laboratory drug analysis record and informed him that he was disappointed with his conduct. He said Mr Outram stated the custom and practice was to take each case on its merits and evaluate the circumstances of that case. Mr Johnson said he believed Mr Outram was referring to a previous employee terminated in October 2007. Mr Outram also advised the meeting that the MUA viewed this case differently and would offer Mr Dorsett its support. 175 Mr Johnson said he subsequently took Mr Dorsett through the letter he had given him. He said he informed Mr Dorsett his recent test confirmed a pattern of behaviour where PWCS believed he had failed in his obligation to be a trustworthy employee who PWCS could have confidence in. He also informed Mr Dorsett that by providing a further positive test result within a 12 month period he had once more breached the AOD Policy and Procedure. He said he informed Mr Dorsett that consistent with that Procedure disciplinary action would be taken and "it is fair to advise you that PWCS is now contemplating terminating your employment". 176 Mr Johnson informed Mr Dorsett PWCS could not see how it could have trust and confidence that he would turn up for work in a fit state to safely perform his duties. Accordingly, he advised Mr Dorsett he was suspended without pay until 3.00pm on 18 December 2007 when he would be required to attend site for a meeting with Mr Carman. 177 Mr Johnson said he invited Mr Dorsett to bring a support person. He also advised that he was required to supply PWCS with a letter setting out any valid reason for the latest result showing a positive result for cannabinoids and any reasons as to why PWCS should not bring his employment to an end. 178 Mr Johnson stated the meeting on 18 December 2007 was attended by Mr Carman, Mr Dorsett, Mr Outram, Ms Jackson and himself. He said Mr Carman opened the meeting and advised Mr Dorsett of the seriousness of this issue and canvassed the contents of the letter Mr Johnson had provided to Mr Dorsett on 14 December 2007. Mr Johnson stated that during the meeting the following conversation occurred with words to the following effect: Dorsett: I've stuffed up, I timed it wrong, it was a lack of judgement. Carman: I am struggling to see why you would put yourself in that position. Dorsett: Lack of judgement. Outram: I can genuinely say, as contrite as he is, having placed himself and his family in a situation that he has done, Brett is not going to walk away from that. Brett realises he has let Rod down as well. Carman: Is there anything further you would like to tell us to better understand this situation prior to making a decision? Dorsett: Since 2004 I have stuck to protocols, I had to. In relation to the alcohol breach in June 2007 I have that under control. In December 2007, I timed it wrong. From here on out I will have zero tolerance. I stepped outside the Policy, I misjudged things. Carman: We might just take some time separately for us to consider what you have said today. 179 Mr Johnson further deposed that during a break Mr Carman telephoned the general manager, Mr Graham Davidson, to advise Mr Dorsett had not produced any information nor convinced him that he could perform his duties and retrieve the loss of confidence PWCS now held in him. Mr Johnson stated that when Mr Carman returned to the meeting he said that he had reviewed the letters from Mr Dorsett and Mr Outram on behalf of the Union and concluded it was clear in his view that Mr Dorsett had not abided by PWCS policies and procedures. He subsequently stated he did not believe in all the circumstances that he could regain trust and confidence in Mr Dorsett and advised he had detailed his decision to terminate Mr Dorsett's employment, effective immediately, in a letter to which he subsequently explained to Mr Dorsett. Mr Johnson deposed the following exchange occurred: Dorsett: Is it because I didn't verbalise it well? Carman: No. I don't believe you have taken it seriously. It has been brought to your attention that your employment was at risk, but you still chose to come to work under the influence of drugs. I cannot put employees on site at risk. I don't have confidence in you Brett to attend work in a fit for work state. Your record shows a history since 2004 of AOD breaches. In June 2007 you were told that you were going to be breath tested and you turn up for work and go over the limit. I can't put your safety and the safety of others at risk by having you at PWCS. Outram: I'm just gobsmacked. Shocked. What's a guy to do? He has admitted the wrongdoing and you've shown no discretion. It's clear that this is a weak decision and that real courage couldn't be shown by Management. The guy's willing to accept whatever you throw at him. If you want to know how to make a non effective team member, well you've just done it. The MUA will be taking this as far as it can go. Wayne, that's the last time you will get anything in writing from me. Carman: This has been difficult and disappointing for everyone. Dennis will see you out and you can call Wayne after today if you have any questions about the finalisation of your payment and to organise collection of your belongings. 180 In his second Statement filed on 18 April 2008, Mr Johnson dealt with paragraphs 4 and 6 of Mr Dorsett's Statement in reply filed on 4 April 2008. Mr Johnson referred to the telephone conversation he had with Mr Dorsett on 10 December 2007 and stated he had no recollection of Mr Dorsett informing him that he had self tested following the golfing trip referred to in his evidence. Mr Johnson also reaffirmed that he had conveyed the seriousness of the breach to Mr Dorsett during the meeting on Friday 14 December 2007 as follows: It is fair to advise you that PWCS is now contemplating terminating your employment. We are contemplating terminating your employment. 181 Mr Johnson also stated he did not understand why Mr Dorsett could not appreciate the gravity of the situation that he was placed in. Mr Johnson also maintained that he did not ask Mr Dorsett to countersign the letter dated 14 December 2007. He said he read the letter to Mr Dorsett "word for word" and specifically recalled Mr Dorsett folded the letter in half prior to leaving the meeting. Mr Johnson further denied Mr Dorsett's contention he had suggested during the meeting on 14 December 2007 that it would be a good idea for him to undertake a further drug test. However, in response to a request from Mr Outram he believed he stated words to the effect "I don't have an issue if Brett wants to complete a test". 182 In cross examination, Mr Johnson said he had access to the AOD Policy when he spoke to both Mr Dove and Mr Dorsett in connection to Mr Dorsett's breach of that Policy. He also stated he was satisfied that Mr Dove had discussed the implications of a refusal to undertake the required test with Mr Dorsett and had informed him of the consequences of such refusal. 183 In response to a number of questions concerning the application of the Policy and Procedure, Mr Johnson was unable to state categorically that each and every aspect and section of the Policy was applied line by line. Mr Johnson further admitted that Mr Dove's email dated 1 July 2007 did not set out any admission about Mr Dorsett smoking marijuana nor did it state Mr Dove had told Mr Dorsett that the consequence of refusing the test was that it would be regarded as a first positive test. Mr Johnson stated he made a decision that Mr Dorsett's admission concerning marijuana should be kept confidential at that point in time. Mr Johnson also confirmed that where an employee tests positive, his leader or supervisor is accountable for monitoring the frequency of subsequent tests. In Mr Dorsett's case the appropriate person to manage that process was Mr Dove. 184 Mr Johnson stated in normal circumstances the Policy dictated that the employee's leader would normally inform him or her that counselling services were available. However, in Mr Dorsett's case this did not apply "by default" due to the way the circumstances of this case had unfolded. The following exchange concerning the application of the procedure to be followed under the AOD Policy occurred: Slevin: And we go to the circumstances at 1 July, we discussed earlier this morning about the 1 July test being a return-to-work test? Johnson: Yes. Slevin: Now a return-to-work test isn't part of the program of testing under the Procedure, is it? Johnson: As in the routine random selection of testing? Slevin: Under the Procedure the program of testing involves self-testing, and again it's not a memory test. Page 3 of 17 of the Procedure? Johnson: Yeah. Slevin: You see the heading "Program of Testing". Now under the "Program of Testing under the Procedure" involves only self-testing, post-incident testing? Johnson: Mm-hm. Slevin: Fitness for work causal and random testing. It doesn't include return-to-work testing, does it? Johnson: That established program doesn't, no. Slevin: And so when a positive was given or was recorded for Mr Dorsett on 1 July, it wasn't a positive test under the program for testing; it was rather a positive test to satisfy you that he could return to work after the first test; that's the case, isn't it? Johnson: So in the Procedure, and I don't know it back to front, but in the Procedure it states that you need to - if you're considered a first positive I believe is the wording, then you need to provide another sample prior to returning to work. Slevin: That's right, and that's the return-to-work test, and so it's not part of the program of testing otherwise; it comes into play after there's been a positive and you need to return to work? Johnson: True. 185 Mr Johnson confirmed that prior to the meeting on 2 July 2007 he had checked with another PWCS employee to confirm that the wall mounted breathalyser unit located at the gatehouse was in fact a calibrated and authorised unit. He said there was a system in place to ensure the machine was regularly calibrated or checked. However, he could not recall the actual date of when the most recent calibrational check of the machine had taken place. 186 Mr Johnson confirmed that when he met with Mr Carman on 18 December 2007 he gave him copies of correspondence dated 14 December 2007 addressed to Mr Dorsett together with copies of the PWCS AOD Policy and Procedure, Mr Dove's email dated 1 July 2007, Mr Dorsett's warning letter dated 2 July 2007, possibly Mr Dove's email dated 22 August 2007, a copy of a letter dated 11 September 2007 to Mr Dorsett concerning his requirement to attend counselling, Mr Dorsett's rehabilitation plan dated 19 September 2007, the results of Mr Dorsett's urine pathology test dated 11 December 2007, a copy of the PWCS Disciplinary Procedure, a copy of a letter to Mr Dorsett dated 14 December 2007 concerning his third breach of the AOD Policy and Procedure within a twelve month period, a copy of a short letter from Mr Dorsett dated 17 December 2007 concerning his remorse and a copy of a note to Mr Carman from Mr Outram dated on or about 17 December 2007. 187 Mr Johnson said he did not take a prepared or written recommendation to Mr Carman. However, he did state he had verbally recommended to Mr Carman that PWCS needed to consider the possible measures that could be put in place for Mr Dorsett "to either heed what we're going to do for the safety of the place". In response to a line of questioning concerning the safety of both PWCS and Mr Dorsett, Mr Johnson stated his recommendation was that despite his efforts and those of Mr Dove, Mr Dorsett "wasn't either changing his ways or listening or trying to assist us about what we're trying to do". 188 Mr Johnson stated he did not recommend Mr Dorsett should be dismissed but rather recommended that dismissal was a consideration in this matter. Mr Johnson stated that while he had not discussed Mr Dorsett's progress with Mr Berry, he had discussed the Employment Assistance Scheme with Mr Dorsett, with particular reference to the recommendation that Mr Dorsett monitor his consumption of alcohol. 189 Mr Johnson also confirmed that following Mr Dorsett's positive drug test on 8 December 2007, he did not ask Mr Dorsett to attend the Employment Assistance Program in relation to cannabis. He also confirmed he was surprised that when he had read the letter dated 14 December 2007 to Mr Dorsett, with particular reference to the paragraph that contained the sentence "We are now contemplating terminating your employment here at PWCS", Mr Outram had left the meeting with the impression that PWCS was considering options other than termination. 190 There was no re-examination of Mr Johnson. Mr Shaun Sears 191 Statements filed on 18 April 2008 and 30 May 2008 comprised Mr Shaun Sears' written evidence. Mr Sears deposed he commenced his employment with PWCS on 6 April 1999. His current role was manager live run and operational improvement. Prior to this appointment he had held a number of positions including operations superintendent, Kooragang terminal from 6 April 1999 to 5 June 2005. 192 As operations superintendent he was responsible for the day-to-day running of the terminal and led the operations team in the unloading of trains and loading of vessels to maximise throughput with due regard to safety, environment and cost. He deposed that Mr Dorsett was a member of shift 3 at the Kooragang terminal and had reported to him in his capacity as operations superintendent. 193 Mr Sears deposed PWCS decided to introduce an AOD Policy in 2001. He said that in implementing this Policy there was considerable consultation with the Occupational Health and Safety Committees and other employee representative committees such as the Single Bargaining Unit and with employees directly. He said the AOD Policy was part of the broader fitness for work focus by PWCS at the time to ensure a safe workplace. Part of the AOD Policy implementation involved a series of employee briefings conducted during August and September 2001. Mr Sears deposed he personally conducted the employee briefing to all operations teams at the terminal. A powerpoint presentation concerning the Alcohol and Other Drugs employee presentation undertaken during September 2001 was attached to his Statement. In addition to those presentations PWCS had retained Boylan, Simpson & Simpson, Corporate Psychology Service, based in Western Australia to undertake training of employees on the affects of alcohol and other drugs, including short term impairment and long-term affects to health. He deposed the training also focused on managing shiftwork, fatigue, sleep patterns and alcohol and other drug consumption. 194 Mr Sears further stated that prior to the implementation of the AOD Policy and Procedure, PWCS had decided to make available self testing for alcohol in the form of a breathalyser and self test kits for other drugs free of charge to employees at the terminal gatehouse and wharf facility entry points. He further deposed that employees, visitors and contractors were encouraged to use those self test kits or take them home to self manage prior to coming to work. He recalled that Mr Peter Carter, the then principal adviser personnel, had advised him of the high take-up of the kits. 195 Mr Sears deposed that in addition to the Policy briefing undertaken by himself and the work undertaken by Boylan, Simpson and Simpson, the then general manager, Mr David Brewer, had issued a memorandum to all employees outlining the way forward with alcohol and other drugs testing including self test facilities and the safety aspects of working in an alcohol and other drugs free site. A copy of Mr Brewer's memorandum dated 5 October 2001 attached to his Statement said the following: I encourage you to read the Policy and Procedure as they provide the detail of how the Policy is applied at PWCS. The employee briefing sessions were intended to cover the essential information and provide you with an opportunity to clarify what to expect during implementation. These sessions also provided some valuable feedback, which has contributed to improvements in that Policy and Procedure. The final paragraph stated: Alcohol and other drugs are a significant cause of accidents in the community and we need to do everything practically possible to ensure that people who work at PWCS do not risk their own, or the safety of others by working under the influence of alcohol or other drugs. Our aim is to motivate such people to modify their behaviour so that they do not endanger themselves or others. 196 Mr Sears also deposed that employees in leadership roles had received additional training to assist them to manage issues that may arise from a breach of the AOD Policy. In his view Mr Sears thought the Policy had the overwhelming support of employees. Mr Sears deposed that in late 2003 or early 2004, Mr Dorsett approached him to establish whether his annual leave had been approved. He further deposed Mr Dorsett had asked him if they could talk in confidence. Mr Sears said he agreed to this request and Mr Dorsett advised him that he was intending to take a golfing holiday to the North Coast with some of his mates and the following discussion ensued: Dorsett: Me and my mates are going to get on it. Sears: What do you mean? Dorsett: We are going to drink a lot of piss and smoke pot. Can you arrange for me not to be subjected to Alcohol and Other Drug test for a couple of weeks after my return? Sears: I can't do this and will not do this. It's a mandatory safety Policy and testing is random. My job is to implement the Policy in my area of accountability and ensure that our people are fit for work. Brett, if you're going to have a holiday and smoke some pot, why don't you take some self test kits so you can ensure you're fit to come back to work on your return? Dorsett: I want to smoke on the bus trip up and back and will need to take more holidays. Sears: You've got some choices to make. 197 In his second Statement filed on 30 May 2008, Mr Sears deposed he believed the real purpose of Mr Dorsett's conversation with him prior to his golf trip was to pre-arrange alcohol and other drug tests in the period following his return from annual leave rather than Mr Dorsett's account that the purpose of the conversation was to obtain a clear understanding as to how the Policy operated and how it would affect his return from the holiday that he had planned. 198 In other respects Mr Sears stood by his recollection of his discussion with Mr Dorsett concerning the proposed holiday. He agreed he had suggested to Mr Dorsett that he should take some self testing kits with him as these were available to all employees. Further, with respect to Mr Dorsett's Statement that he was unable to recollect that during the 2001 presentations by Mr Sears there was reference to the fact that leaving the site sick when tests were being conducted would be regarded as a refusal to test, Mr Sears referred to his September 2001 Powerpoint presentation to employees where slide 17 under the heading "Testing - Refusal, Avoidance or Falsification" the following was stated: Refusal to undergo testing has a similar consequence to recording a positive test result. An employee will be required to provide their Leader with a negative result before returning to work. An attempt to avoid or falsify an alcohol or other Drug test will constitute serious and wilful misconduct. 199 In cross examination Mr Sears confirmed to Mr Slevin that the slides related to his AOD Policy and Procedure employee briefing in 2001 were prepared by the HR Department. He also confirmed that he gave the presentation to the four shift teams at Kooragang terminal within the operations group of PWCS and also the day work team. He said he had subsequently conducted refresher training but he could not recall with any precision when that refresher training was undertaken. He also stated that Boylan, Simpson and Simpson had provided training specifically concerning alcohol and other drugs which included fatigue management and working on shiftwork related matters. He said Boylan, Simpson and Simpson also provided training to operators explaining how quickly alcohol leaves the system after consumption. However, he could not provide Mr Slevin with any guidance in that regard. 200 Referring to his conversation with Mr Dorsett in late 2003 or early 2004 where Mr Dorsett allegedly approached him and said "me and my mates are going to get on it", Mr Sears stated he was very confident Mr Dorsett had said to him "can you arrange for me not to be subjected to alcohol and other drugs test for a couple of weeks after my return?" He later told Mr Slevin those words might not have been the exact words spoken by Mr Dorsett but they were very close to what he had said. He also confirmed Mr Dorsett had said to him "I want to smoke on the bus trip up and back and will need to take more holidays". With respect to those statements he admitted he did not report the terms of that conversation to anyone within PWCS during 2003 or 2004. Notwithstanding those statements he did not believe Mr Dorsett was trying to avoid alcohol and other drug testing at the time and on that basis he did not inform anyone in a supervisory position. There was no re-examination. Ms Julie Ann Curry 201 In a Statement filed on 30 May 2008 Ms Curry deposed that she had been employed by Frontline Diagnostics since 2001 and her current position was Senior Collection Officer. Ms Curry further deposed that she was required to visit client companies and conduct alcohol and drugs screening on site. She visited client companies in a Frontline Winnebago motor home van which had the screening equipment on board. She had undertaken alcohol and drug screening for some four years at both the Kooragang and Carrington terminals. 202 At the Kooragang terminal, the van is always parked in the car park outside the first aid room. Ms Curry said the normal practice was to park the van and set up for the day. She said that when Frontline was required to undertake alcohol testing they would set up in the first aid room and wait for employees scheduled to attend. All drugs screening was undertaken in the van. 203 Ms Curry deposed that Frontline normally received a list of employees required for screening the day before the screening was actually scheduled. She said that normally there would be an employee waiting to commence testing or screening. However in the event there was no one waiting, she would telephone the "contact supervisor" as instructed by PWCS Following the completion of testing and screening Frontline staff complete a summary of testing and PWCS' initial drug test record or initial breath test record sheets as required. 204 Ms Curry further deposed that where an employee was unable to provide the required sample within the allocated testing time they would be directed to the amenities room to have a cup of tea or cold drink. Staff would then advise the contact person of this situation so that they would be able to monitor the employee and have them return to the van once they are able provide a sample. Where an employee has not returned to the van during the allocated time Frontline staff confer with the contact person. 205 Where the employee fails to attend the testing van, Frontline staff class them as a "no show". Ms Curry said "no shows" also include employees who do not attend the van or first aid room at their allocated time because they are either sick, on annual leave or because they are on the ship loader and are unable to be brought back to the van. In such cases, Frontline staff attempt to contact the contact person to chase these employees. However, if they do not attend the required test, staff simply write "no show" on the paperwork. If Frontline staff are unable to contact the nominated contact person and all other scheduled testing or screening has been completed they hand the test paperwork in a sealed envelope to the security guard at the gatehouse marked to the attention of Mr Paul Chapman, PWCS Specialist Adviser OHS and leave the site. 206 Ms Curry said she had read Mr Dorsett's first Statement where he deposed that between March 2004 and June 2007 that he had been randomly tested for other drugs approximately four times each year and for alcohol approximately two to three times per year and had always tested negative. Ms Curry referred to the Frontline summary of testing records for the period that had been given to PWCS and made the following comments: 17 February 2005 - Mr Dorsett was tested for alcohol and other drugs and tested negative. 15 September 2005 - Mr Dorsett was to be tested for other drugs and the record shows " not here ". 17 November 2005 - Mr Dorsett was tested for other drugs but was unable to provide a sample. The records show that " No sample . Will provide at gatehouse ". There is a further notation " spoke with Rod Dove about Brett Dorsett ". 2 December 2005 - Mr Dorsett was listed for other drugs test. However the records indicate quote " no show ". In that regard, Ms Curry stated it was her normal practice to contact the nominated contact person, which in this case was Mr Terry Tynan so he could advise if Mr Dorsett was attending. She said that if she did not hear from Mr Tynan, she would continue testing and screening. The records show that Frontline left the site at 10.45 am on 2 December 2005 and on that basis she deposed " it is clear that Mr Dorsett had not arrived at the van by that time ". 7 July 2006 - Mr Dorsett was tested for alcohol and the result was negative. 31 August 2006 - Mr Dorsett was tested for alcohol and the result was negative. 207 Ms Curry referred to Mr Jolly's evidence where he contended that in or about January 2007, whilst working on day shift his supervisor Mr Siever advised him he had to attend for a test under the Policy. In response to a question to Mr Siever whether the test was a drugs or alcohol test, Mr Jolly stated that Mr Siever simply said "I don't know, go to the testing van and find out". In relation to that evidence Ms Curry said she had seen the records provided to PWCS for January 2007 and those records reveal that Mr Jolly was due to be drug screened at 8.30am. She deposed that the records also revealed that Mr Jolly was "sick". Mr Curry further stated that from those records she believed Mr Siever would have advised Mr Jolly was sick and would not be attending the van for screening. She had no direct recollection of a conversation with Mr Siever. 208 Ms Curry also stated she had no recollection of the conversation alleged to have taken place concerning Mr Jolly set out in his evidence with respect to what sort of test was required. She deposed the conversation, as set out by Mr Jolly, was unusual because generally employees know what sort of test is going to be conducted. 209 In cross examination Ms Curry stated that PWCS had provided her with the records associated with drug and alcohol testing undertaken by Frontline for the relevant period. Ms Curry stated that while she had no recollection of the conversation referred to by Mr Jolly in his Statement, it was possible that Mr Jolly had spoken to someone else in the van that day and she was unaware of that discussion. 210 There was no re-examination by Mr Warren. Mr Kerry Berry 211 Statements filed on 30 March and 18 April 2008 comprised Mr Berry's written evidence. In his first Statement, Mr Berry deposed that he was an Industrial Chaplain and had been employed by Converge International, formerly known as ITIM Australia since January 1988. He has been the workplace counsellor at PWCS for some four years. Mr Berry deposed that he had been provided a copy of Mr Dorsett's Statement filed on 20 February 2008 where he stated that during the week commencing 2 July 2007 he had contacted Mr Berry to arrange a meeting. Mr Berry deposed that it was his recollection that Mr Dorsett had telephoned him twice before they met formally. He also referred to Mr Dorsett's evidence that during the week commencing 9 July 2007, he again telephoned Mr Berry who told him at the time that he was driving to Sydney and asked him to ring back at another time to arrange a meeting. With respect to that evidence Mr Berry believed it was out of sequence as it was his recollection that he was driving to Sydney when Mr Dorsett made his first contact during the week commencing 2 July 2007. In that regard he recalled saying words to the effect of: Let me pull off the road so I can make an appointment or would you like to phone me another time to arrange a meeting. 212 Mr Berry further deposed he had met with Mr Dorsett on two occasions and not the four claimed by Mr Dorsett in his evidence. He recalled providing Mr Dorsett with the principles on how best to reduce alcohol consumption and manage drinking patterns. He said Mr Dorsett had informed him that the principles were useful and provided a healthy guideline to him. Mr Berry further deposed that when he first met Mr Dorsett he had followed that meeting up with a phone call approximately one or two days later and in October 2007 he met with Mr Dorsett in his office at PWCS to review the situation. 213 In his Statement filed on 18 April 2008 Mr Berry said that he had been provided with a copy of Mr Dorsett's Statement in reply filed on 3 April 2008 and stood by his earlier evidence regarding the sequence of meetings. Mr Berry further claimed that he had spoken to Mr Dorsett prior to his employment being terminated by PWCS but had no recollection of meeting with Mr Dorsett at his home on or about 21 December 2007 and to support that position he had checked his diaries and telephone records. 214 In cross examination, Mr Berry stated that he was on site between June and August 2007 at least one day per week and during most weeks he would have been on site for two days. PWCS provided him with the use of an office and he handled all administrative arrangements himself. Employees would normally contact him by mobile phone or by email. He confirmed that in preparing his Statement he had checked both his diary and his mobile phone records. It was also his evidence that he had received no emails from Mr Dorsett nor anyone else from PWCS. 215 With respect to Mr Dorsett's claim that Mr Berry had met with him at his home in December 2007, Mr Berry said he did not deny that a meeting occurred, but stated he had no recollection or notation about it in his diary. When shown an Optus phone record, he agreed that there had been two phone calls from Mr Dorsett to his mobile phone on 21 December 2007. However, he had no recollection of those calls. He also agreed he had that mobile phone number through August and September 2007 and it appeared some phone calls had also been made on 1 August and 17 September 2007. 216 When asked about his role under the AOD Policy and Procedure, Mr Berry said that part of his role is "also to pursue with people what's happening with their habits, their alcohol or other drug usage, and to actually help them find a way through all of that". He said while he had nothing in writing setting out his responsibilities in relation to the PWCS Employee Assistance Program, he had received instructions about his role with the AOD Policy and Procedure. He said it was a matter of Mr Carman simply talking through it along the lines of: This is the policy, we are going to refer people to you. We would like you to actually work through with them. If further referrals are needed, then that's possible, but you also have some training in that area as well and we would encourage you to work through with it. If there is something that you need then come back to us and we'll sort that through. 217 He said from his discussion with Mr Dorsett it was his view he was dealing with his alcohol use and the drug and alcohol tests. Mr Dorsett had mentioned the issues concerning his brother as background. Mr Wayne Carman 218 Statements filed on 13 March and 30 May 2008 comprised Mr Carman's written evidence. Mr Carman deposed that he had been an employee of PWCS since 9 March 1998 and his role since December 2005 was manager Kooragang terminal. 219 Mr Carman said a feature of the PWCS Kooragang terminal was that employees work in close proximity to trains, large items of plant and machinery, fast moving conveyors and the company cannot afford the risk of having any employees on the site who are under, or potentially under, the influence of alcohol or other drugs. Mr Carman said the AOD Policy was implemented in 2001 in full collaboration with all site Unions and was a vital part of PWCS' Occupational, Health and Safety Program to ensure the safety of all persons on site. He said over the past few years significant improvements had been made to safety on site and management systems had been introduced setting out the standards and processes to be followed to maintain a safe workplace. 220 Mr Carman said Mr Dorsett reported to Mr Dove, shift supervisor and Mr Dove reported to Mr Johnson, operations superintendent who in turn reported to himself. He said he was aware that Mr Dorsett was the subject of a written warning concerning two AOD breaches in approximately July 2007. 221 Mr Carman deposed that on 8 December 2007 he received a telephone call from Mr Johnson who advised him Mr Dorsett had provided a non-negative result from a random drug test and the sample had been sent for confirmatory analysis. Mr Johnson said this breach was potentially Mr Dorsett's third in a 12 month period. On 13 December 2007, Mr Johnson advised Mr Carman that Mr Dorsett's non-negative results had been confirmed as a positive result for cannabinoids and Mr Dove, Ms Jackson and himself proposed to meet with Mr Dorsett on 14 December in relation to his third breach of the AOD Policy and Procedure. 222 Mr Carman stated that on 17 December 2007 Ms Jackson provided him with a copy of Mr Dorsett's written response to the issues raised in a letter provided to him on 14 December 2007. A copy of Mr Dorsett's response and a letter from Mr Outram were annexed to his Statement. 223 Mr Carman subsequently reviewed Mr Dorsett's entire personnel file and on 18 December, he met with Mr Johnson, Ms Jackson and Mr Mark Golding, human resources manager to discuss the responses of Mr Dorsett and Mr Outram. He said the meeting discussed Mr Dorsett's history, work performance and disciplinary options, having regard to the seriousness of the matter and a comparison with other disciplinary matters dealt with by PWCS in the recent past. On that day, Mr Carman also met with Mr Graham Davidson and Ms Jackson to further discuss Mr Dorsett's recent AOD Policy breach where his work history and performance, prior Policy breaches and the written responses of Mr Dorsett and Mr Outram were canvassed. 224 Mr Carman said on 18 December 2007 at 3.00pm he met with Messrs Dorsett, Outram and Johnson and Ms Jackson and advised Mr Dorsett of the seriousness of the situation. He told him PWCS was contemplating termination of his employment. He reviewed the letter provided to Mr Dorsett on 14 December and had a discussion with him in words to the following effect: Carman: Do you have any issues with or dispute the content of the letter dated 14 December 2007? Dorsett: No. Carman: Brett you received a written warning in 2004 for breach of A&OD. Dorsett: Yes it was for cannabis. Carman: So Brett you were aware of PWCS's A&OD Policy and Procedure in 2004? Dorsett Yes. Carman: My understanding Brett, was that when you refused to undertake a test you were advised by Rod that this would be classed as a first positive (There was no response from Brett). Carman: Brett, I struggle with why you were under the influence of alcohol when you knew you were going to be tested. You understood that there was self testing gear at the front gate? Dorsett: I didn't think I had consumed that much alcohol, I made a mistake, I should not have had anything. Carman: And after you had two breaches why would you then consume marijuana? Dorsett: I was in the wrong place at the wrong time, it was a lack of judgement, I got the timing wrong. I was stupid and really want another chance. Carman: I am struggling to understand why you would put yourself in that position. Dorsett: It was a lack of judgement. Carman: Brett in summary, you were told in 2004 that you had to get your act together. In 2007 you refused a test and then with several days notice of a test you failed it and although you were clear on the seriousness of the situation you then failed a drug test. Is this correct? Dorsett: Yes . Outram: I can genuinely say, Brett understands the position that he has placed himself and his family in and Brett is not going to walk away from that. Carman: Is there anything further you would like to tell us to better understand this situation? Dorsett: Since 2004 I have had a number of tests and have been clean. In relation to the alcohol breach in June 2007 I have that under control. In December 2007, I was in the wrong place at the wrong time. From here on out I will have zero tolerance. I stepped outside the Policy, I misjudged things. Carman: We might just take some time to consider what you have said today. 225 Mr Carman said after that exchange a break occurred where he had a discussion with Mr Johnson and Ms Jackson concerning the information provided during the meeting. He subsequently concluded nothing had been put to warrant a change in his view that Mr Dorsett's actions should result in the termination of his employment. He telephoned Mr Davidson and a brief discussion in words to the following effect ensued: Carman: I've just met with Brett and he hasn't provided me with any other substantial information that has changed my mind. Davidson: What are you going to do? Carman: I intend to terminate his employment. Davidson: I agree. Mr Carman said that on return to the meeting he said words to the following effect: I have reviewed the documentation, our discussion and what you and Dennis have said today. I don't believe that you can regain trust and confidence that I require and you did not abide by PWCS policies and procedures. I have detailed my decision in a letter to you terminating your employment effective immediately. He said he then took Brett through the letter and the following conversation took place: Dorsett: Is it because I didn't verbalise my letter well enough? Carman: I don't believe you took it seriously. You were made clear that your employment was at risk, but you still decided to disregard PWCS policies. I am not willing to put you or other employees on site at risk because you do not present yourself in a fit state for work. I have no confidence that you will change. You have had four breaches of the A&OD Policy, in 2004 and 2007. In June 2007 you were told you were going to be tested and then blew the bag. I can't continue to put your safety and the safety of your fellow employees at risk. I have an obligation under the OH&S Act to ensure not only your safety but the safety of everyone else. I understand that this isn't a good time of year to do this, but no time is. Counselling services will still be available to you if you require counselling for yourself or your family". 226 Mr Carman said Mr Dorsett and Mr Outram pressed him to change his decision. He said he reinforced the comments he had just made and explained to them he had not taken the decision lightly. He explained to Mr Dorsett he should have taken this issue seriously before now and repeated that he did not have confidence that Mr Dorsett would change his behaviour. He again advised Mr Dorsett that his primary concern was for his safety and for the safety of other team members. The meeting concluded. 227 Mr Carman said immediately after this meeting he telephoned Mr Jim Boyle, MUA Union Secretary as a courtesy to advise of his decision. Mr Boyle confirmed that Mr Outram had already contacted him and Mr Carman told him that he would be available if required to discuss the matter further. 228 Mr Carman said on 19 December 2007 he received a telephone call from Mr Dorsett requesting a meeting with Mr Davidson. A meeting with Mr Davidson was arranged for 20 December 2007. 229 Mr Carman's second Statement filed on 30 May 2008 confirmed he had been provided with copies of Statements filed by Messrs Jolly, Siever, Tynan and White and in view of the information contained in those Statements he had commenced action under the PWCS Disciplinary Procedure in relation to Mr Siever's apparent conduct. 230 In the witness box Mr Carman stated Mr Johnson had recently resigned from PWCS and accordingly, the reference in his first Statement that "Mr Dove reports to Wayne Johnson", should read "... reported to Wayne Johnson". 231 In cross examination Mr Carman stated he could not remember when on 17 December 2007 he reviewed Mr Dorsett's file and confirmed the documents annexed to his Statement related only to his performance. He said he could not remember whether any additional documents were provided to him by Mr Johnson. He agreed it was his intention to provide the Commission with all documents relevant to his consideration on the 17 and 18 December 2007. He could not specifically recall seeing any emails that passed between Mr Dove and Mr Johnson concerning Mr Dorsett. 232 Mr Carman stated he decided to dismiss Mr Dorsett after the first half of the meeting with Mr Dorsett and Mr Outram on 18 December 2007 when there was a short break to allow him to further discuss the response with Mr Johnson and Ms Jackson He confirmed he had not previously formed the view that termination of employment was appropriate: Certainly my view was that I was going to go into that meeting on the 18th with a view that my decision would be made after my discussion with Mr Dorsett. Certainly termination was a distinct possibility, but it wasn't a lay down misere that it would be the case. 233 In response to a question that his first Statement suggests he had a view before the meeting that Mr Dorsett should be terminated Mr Carman said: If you read it that way I can see how you could form that view. Certainly my view is that I had a view that termination was a distinct possibility, but I was certainly open to information that Mr Dorsett might provide on the 18th .. I wanted to meet ... directly with him ... to see if he had any further information. 234 Mr Carman agreed he only spoke to Mr Boyle after the meeting as he did not believe he needed to contact him earlier as Mr Outram, a senior Union delegate, was going to be present. Mr Carman said he was satisfied with Mr Outram representing Mr Dorsett and that Mr Dorsett had the opportunity to invite a support person of his own choosing. 235 Mr Carman agreed when he read out the contents of the letter dated 14 December 2007, Mr Dorsett said he had an issue with contacting the counsellor, Mr Berry. He also agreed that in his first Statement he said "my understanding, Brett, was that when you refused to undertake a test, you were advised by Rod that this would be classed as a first positive" and although he could not remember who had told him this, he understood both Mr Dove and Mr Johnson had told Mr Dorsett that a refusal would be classed as a first positive test. 236 Mr Carman agreed the terms of his discussions with Mr Dorsett and Mr Outram had proceeded on the basis that the December drug test result constituted a third positive under the AOD Policy, the first being 26 June 2007, the second on 1 July 2007 and the third on 8 December 2007. 237 In response to extensive questioning Mr Carman stated a monitoring program which included two random tests within six months, with the first test occurring within the first month of return to work following a break was normally implemented upon an employee's return to work. 238 However, in relation to the events of 26 June 2007 concerning Mr Dorsett the monitoring program was not implemented because Mr Dorsett was not at work. He also confirmed the monitoring program was not implemented until Mr Dorsett's second positive test and that was the first occasion the monitoring program could commence because Mr Dorsett had earlier refused to test and gone home. 239 In relation to the application of the AOD Policy and Procedure, Mr Carman admitted that he had not taken steps to ensure the Policy and Procedure had been implemented precisely as set out in the documentation. However, notwithstanding certain steps were not taken in relation to the events that occurred during June and July 2007, he did not support the plea that Mr Dorsett should be reinstated. In that regard, Mr Carman said he believed Mr Dorsett had had an opportunity to modify his behaviour and failed to do so following his first refusal. The following exchange ensued: Slevin: If it were able to be established that really in the circumstances he hadn't breached the Policy because the Policy hadn't been followed by Port Waratah, wouldn't you say well if that's the case, we shouldn't have dismissed him? Carman: I would say that if we've been unfair to Mr Dorsett then that's certainly something we should look at, but I don't see that we've been unfair. 240 Mr Carman stated that despite a commitment to undertake drug and alcohol testing at his own expense, he maintained his position that he did not have the trust and confidence in Mr Dorsett: Mr Dorsett can say those things now, but I don't have the trust and confidence in him that he's going to carry that out ... I had no confidence that he was going to do that. I've got to make a decision at the time, and certainly I had to look at the safety of Brett, I also had to look at the safety of his workmates, and at the end of the day I'm accountable for that and I don't intend to put other employees or Brett himself at risk. 241 Mr Carman reiterated that when he terminated Mr Dorsett he had no confidence he was going to seek and undertake further drug and alcohol testing. Mr Dorsett had let PWCS down on four occasions - one in 2004 and three in 2007. Mr Carman stressed it was critical employees present themselves in a fit state for work and the fact that Mr Dorsett had presented himself for work at 0.48 percent BAC and an hour later at 0.22 percent BAC did not enable PWCS to inject a degree of discretion with respect to the Policy limit of .02 percent BAC. He confirmed counselling was available to all employees with respect to alcohol and drugs. 242 In re-examination, Mr Carman confirmed employees were able to self test for alcohol by using a breathalyser located at the main gatehouse. He also explained PWCS supplied self test kits for employees to test for drugs at home. Mr Carman confirmed the breathalyser was calibrated monthly in accordance with the Australian Standard. 243 On 2 July 2008 Mr Warren recalled Mr Carman for further re-examination related to questions put to Mr Carman by Mr Slevin on 1 July 2008 with respect to the possibility of Mr Dorsett being either reinstated or re-employed on a condition of regular testing under the AOD Policy regime. Mr Carman stated that it cost $270 per hour to have a Frontline testing van attend the Kooragang site and each drug test cost approximately $40. There were no consumable costs for the alcohol tests conducted by Frontline. 244 Mr Carman stated in the event PWCS decided to undertake drug and alcohol testing through internal means, there would be no cost for breathalyser testing and the cost for each drug test kit was approximately $30. However, an employee would be required to be supervised for up to 15 or 20 minutes and to do that at the start of shift would be difficult as it is a critical time for supervisors who are required to brief staff and contractors to ensure crews commence work efficiently. Simply put, he agreed a supervisor would have to leave his or her post to go to the gatehouse for some 15 to 20 minutes to supervise the employee undertaking the relevant test. This requirement could also impact upon efficient changeover of shift where at hand over, the previous shift supervisor briefs the new shift supervisor about the work activity required and any relevant safety issues. 245 In further cross examination by Mr Slevin, Mr Carman stated he had not determined the costs that would be incurred if Mr Dorsett undertook regular testing at a laboratory off site or similar service. Mr Carman stated while it would be possible for Mr Dorsett to undertake a self test and subsequently present the results to his supervisor without the need for the supervisor to accompany him to the gatehouse to take the test, he said this was something he would not allow because he would want to ensure that the test was valid. He later explained all testing at the gatehouse was actually carried out by one of the trained security officers in the presence of the supervisor. 246 Mr Carman also stated the purpose of testing so far as PWCS was concerned was to test for influence and not for impairment. Mr Carman maintained his position that in the event Mr Dorsett returned to work he would be required to undertake daily testing to ensure he was fit for work. In that regard Mr Carman stated: It comes down to a confidence issue. I don't have the trust and confidence in him now, and I would want to do it daily at least. So, you know, that's - the issue for me is that Mr Dorsett said that in the date - though in the meeting of the 18th, I think it was, when I interviewed him and went through that process, he said it was a timing issue, he got the timing wrong. Well, I'm very nervous about timing issues, very poor judgement. 247 Mr Carman reiterated that when PWCS tested employees for drugs or alcohol there was a cut-off level and if the test result exceeded that level, the test result was a positive one. Mr Gary Herrett 248 In a Statement filed on 1 July 2008, Mr Herrett deposed that he was an employee of PWCS between 16 January 1961 and 31 December 2007 and his last role was shift supervisor. 249 Mr Herrett deposed that he had been provided with the Statement of Mr Dorsett filed on 26 May 2008. Mr Herrett referred specifically to the evidence of Mr Dorsett who had stated that around mid 2006 when working on day shift Mr Herrett told him he was required to do an alcohol and other drug test that shift. Specifically, Mr Dorsett stated that some two hours after being informed of the requirement to undertake the drug test, he received a telephone call from home and had to return to deal with a domestic issue. He said he had informed Mr Herrett he had to go home and Mr Herrett agreed it was all right for him to do so. As a result Mr Dorsett had stated that he was not tested and was not required to be tested again when he returned to work the next day. According to Mr Dorsett, this scenario of events was not considered by PWCS to be a refusal to test. 250 Mr Herrett deposed that during his term as a supervisor he could not recall any occasion where Mr Dorsett wanted to go home on pre-notification of an alcohol and other drug test. Mr Herrett further deposed if Mr Dorsett had gone home he would have sought the operations superintendent's advice so as to ensure that he dealt with this matter properly and in accordance with the AOD Policy. However he did recall that on at least one occasion during 2005, Mr Dorsett had sought to return home at short notice to attend to some serious domestic problems. Mr Herrett said he allowed Mr Dorsett to return home as he believed the issue at hand was a very personal issue. He said he was certain that the day in question was not linked to any pre-notification of an alcohol and other drugs test. 251 With respect to the AOD Policy, Mr Herrett stated that as a supervisor he had been involved in a number of disciplinary matters related to the use of alcohol and other drugs and knew that a refusal was a serious matter. Mr Herrett also stated PWCS had promoted the availability of self testing kits for a long time and in his view it was beyond his imagination Mr Dorsett would not have known about their availability. 252 In cross examination, Mr Herrett was shown a copy of Mr Dorsett's Statement filed on 26 May 2008 and in relation to that Statement he admitted he had not been shown this Statement as alleged in his written evidence. In that regard he said that the document that he was shown may well have been a summary of the evidence Mr Dorsett had given in these proceedings. 253 With respect to his recollection Mr Dorsett had returned home at short notice during 2005 and that day was not a day when drug testing was scheduled, Mr Herrott stated he had not perused or searched any documents to support this contention and simply relied upon the recollection of his memory. He further stated it would have been highly unusual for an employee to seek permission to go home after prior notification of a drug or alcohol test. 254 Mr Warren tendered relevant witness Statements filed by Mr Graham Davidson, Mr Duane Siever, Mr Terry Tynan and Mr Barry White who were not required for cross examination. Mr Graham Davidson 255 In a Statement filed on 13 March 2008, Mr Davidson deposed he had been a long-term employee of Rio Tinto Australia and was appointed general manager of PWCS in October 2005. 256 Mr Davidson deposed he was aware that the Industrial Relations Commission of New South Wales recommendation dated 11 January 2007 had asked PWCS to give strong consideration to all the matters raised in conciliation by Mr Dorsett and Mr Boyle. Mr Davidson said he had consulted with his management team and Board Chairperson, Dr Eileen Doyle. 257 Referring to his consultations with Dr Doyle concerning the Commission's recommendation, Mr Davidson said those discussions had confirmed the need to fully support PWCS' Occupational Health and Safety Program and the positive result that enforcement was having on employees' attitude to occupational health and safety in the workplace. Mr Davidson confirmed the decision of PWCS was forwarded to Mr Boyle and the Commission by letter on 16 January 2008. The final paragraph of that letter stated: It gives PWCS no pleasure whatsoever to advise that even when the various new subjective matters raised by the MUA and Mr Dorsett have been considered, PWCS cannot agree to Mr Dorsett's reinstatement. The objective obligations upon PWCS to its employees to provide Occupational Health and Safety and to protect the business overrides the subjective considerations. Mr Duane Siever 258 In a Statement filed on 30 May 2008, Mr Siever deposed that on 18 January 2007 Mr Jolly was required to undertake an other drugs test. With respect to that requirement he recalled Mr Jolly saying to him words to the following effect: Jolly: I'm feeling crook, I've got a pain in the guts and I don't feel well, I've had it since last night. Siever: I know it's a late call but there is an A&OD test and your name is on the list, but I guess if your (sic) crook you had better go home. Jolly: Yeah mate, I'm feeling really crook. 259 Mr Siever said he could not recall whether Mr Jolly had sought clarification as to whether the test was for drugs or alcohol. Mr Jolly was sensitive about testing. He said he was aware Mr Jolly changed and left site following their discussion and whilst he was unaware of the illness suffered, he was aware he provided PWCS with a medical certificate for the period 18 to 21 January 2007 and in fact had returned to work on night shift. 260 Mr Siever further deposed he had informed Mr Jolly that he was required to undergo an alcohol and other drugs test before he could commence work upon his return from sick leave. He also stated that shortly after he gave Mr Jolly permission to go home, he realised he should have requested him to undertake the required test before leaving and he subsequently discussed this oversight with his superintendent, Mr Tynan. He also confirmed Mr Jolly was not the subject of any disciplinary procedures as there was no refusal to undertake the test prior to him leaving site "as it was a mistake on his part". Mr Tynan also told him not to make the same mistake again. Mr Terry Tynan 261 In a Statement filed on 30 May 2008, Mr Tynan deposed he had been employed by PWCS since November 1996 and his current position was Carrington terminal manager. Prior to that role he was operations superintendent at the Kooragang terminal. Mr Tynan deposed that he had been provided with the Statement of Mr Jolly filed on 26 May 2008 and said he was not aware Mr Jolly went home ill on 18 January 2007 until he had read Mr Jolly's Statement. At no stage had Mr Siever discussed with him the fact he had allowed Mr Jolly to leave site that day. He said if Mr Jolly's situation had been discussed with him he would have told Mr Siever to direct him to complete the test and in the event that he refused he would have handled the refusal in accordance with the AOD Procedure. Mr Jolly would have been counselled and Mr Siever would have been instructed to require Mr Jolly to be tested upon his return to work. He also regarded Mr Siever's action in not requiring Mr Jolly to undertake a test before he went home a serious error of judgement on his part. Mr Barry White 262 In a Statement filed on 30 May 2008 Mr White deposed he had been employed at PWCS since January 1984 and his current role was shift supervisor at the Kooragang terminal. Mr White stated that he had been provided with a copy of Mr Jolly's Statement filed on 26 May 2008. He further deposed that in relation to the 18 January 2007 alcohol and other drugs test, his name was noted on the PWCS initial drug test record as the superintendent for Mr Jolly and Mr Siever was noted as Mr Jolly's immediate supervisor. With respect to that evidence, he deposed he had no recollection Mr Jolly was sick on 18 January 2007 and further, he had no recollection that he was sick until 27 May 2008 when he was provided with Mr Jolly's Statement. He also had no recollection Mr Jolly was scheduled for a drug test or that he did not attend the required test. Shortly stated, it was his evidence that in the event Mr Siever had approached him to advise that Mr Jolly was ill and had sought to go home, he would not have allowed him to go home until he had completed the scheduled test. 263 Further, in the event Mr Siever had approached him after he allowed Mr Jolly to go home before taking the required test, he deposed he would have been concerned about the actions of both Mr Siever and Mr Jolly. In that regard, he said he would have been concerned Mr Jolly was trying to avoid the test for some reason. With regard to Mr Siever's conduct, he would have been concerned about his actions because it was an issue that he should have taken advice about before allowing Mr Jolly to go home. He would also have been concerned about Mr Siever's apparent lack of awareness concerning the possibility that Mr Jolly may have been trying to avoid the test. 264 Mr White also deposed that he had no recollection of Mr Siever contacting him regarding the matter and if he had been made aware that Mr Jolly had avoided the test by going home sick, he would have investigated the matter and sought the advice of the Kooragang terminal manager as he believed the issue was a serious one. SUBMISSIONS The Union 265 Mr Slevin, on behalf of the Union submitted Mr Dorsett was dismissed for misconduct under PWCS' AOD Policy and Procedure and in resolution of the dispute, sought the following orders pursuant to s 89(1), (3) and (6) the Act: (i) The respondent, Port Waratah Coal Services Ltd, reinstate Brett Dorsett to the position of Operator Level 2. (ii) The period of employment of Mr Dorsett be taken as not to have been broken by his dismissal. (iii) The respondent, Port Waratah Coal Services Ltd, pay to Mr Dorsett the amount he would have otherwise received had he not been dismissed less any other earnings received during the time from dismissal to reinstatement. 266 Mr Slevin submitted Mr Dorsett was also dismissed summarily in the sense he was not permitted to work again after testing positive for other drugs on 8 December 2007. He referred to s 88 of the Act which relevantly states: In determining the applicant's claim, the Commission may, if appropriate, take into account: (a) whether a reason for the dismissal was given to the applicant and, if the applicant sought but was refused reinstatement or re-employment with the employer, whether a reason was given for the refusal to reinstate or re-employ, and (b) if any such reason was given—its nature, whether it had a basis in fact, and whether the applicant was given an opportunity to make out a defence or give an explanation for his or her behaviour or to justify his or her reinstatement or re-employment, and 267 Mr Slevin submitted the onus of proving an allegation of misconduct leading to termination of employment was on PWCS and referred to the decisions of the Full Bench in Perfection Dairies Pty Ltd v Finn (2006) 151 IR 197 at 73, Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; and Franklins Ltd v Webb (1997) 72 IR 257 at 261. 268 Mr Slevin submitted that in cases where misconduct had led to dismissal it was also well established that the principle in Briginshaw v Briginshaw (1938) 60 CLR 336 be applied. In that regard, he stated the proper application of that principle in termination of employment cases was discussed in New South Wales Nurses' Association (on behalf of Colin Prior) and South Eastern Sydney and Illawarra Area Health Service [2007] NSWIRComm 164 where the Full Bench said: 13 Although it must be accepted that the respondent carries the onus to be discharged according to the ordinary civil onus, on the balance of probabilities, the very nature of the issues involved and the consequences of a decision to summarily dismiss an employee, required the respondent to make out its case in a convincing way. It has been long established that the dicta laid out in the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336, should apply. It is timely in such circumstances, in our view, to once again set out the observations of Dixon J (as he then was) in Briginshaw at 361 - 363: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. ... This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected. (emphasis added). 14 In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449-450, Mason CJ, Brennan, Deane and Gaudron JJ provided a clear statement on the Briginshaw principle: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (emphasis added). 269 Mr Slevin referred to the decision of Sams DP in New South Wales Fire Brigade Employees' Union (on behalf of Natoli) and New South Wales Fire Brigades [2005] NSWIRComm 440, ('Natoli's case'), a case involving the summary dismissal of a firefighter where his Honour posed four questions that normally arise in cases of dismissal for misconduct. He suggested those questions represented a practical and useful guide to the Commission in these proceedings: 218 In a case of summary dismissal for misconduct four questions usually arise for consideration. Firstly, was the conduct alleged against the dismissed employee proven? Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? Fourthly, were mitigating factors taken into account? 270 It was the Union's contention that in dismissing Mr Dorsett, PWCS had relied upon its AOD Policy and Procedure. In that regard, Mr Slevin referred to a number of recent Full Bench decisions where the Commission had considered the application of drug and alcohol policies in the workplace: Transport Industry - Mutual Responsibility for Road Safety (State) Award and Contract Determination (No. 2), Re [2006] NSWIRComm 328 ('Transport Industry case') ; Australian Workers Union, New South Wales v BHP Steel (AIS) Pty Limited [2003] NSWIRComm 461 ('BHP Steel case') and Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of Sandra Gay) and Department of Corrective Services (2006) 153 IR 125 ('Corrective Services case'). He submitted that in each of these decisions the Full Bench had referred to the decision of the Full Bench of the Western Australian Industrial Relations Commission in BHP Iron Ore Pty Limited v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 where at 168 the Full Bench said: ... As ... the union so ably argued, there can be no doubt that the programme involves an intrusion into the privacy of individual employees. However, the current standards and expectations of the community concerning health and safety in the workplace, as evidenced by legislative prescriptions and judgements of courts and industrial tribunals, are such that there will, of necessity be some constraints on the civil liberties at times and, in particular, an intrusion into the privacy of employees... 271 Mr Slevin stated the Commission should be mindful of these principles when determining this matter. PWCS was permitted to test its employees under its AOD Policies and Procedures. However, in conducting those tests and taking action where necessary, PWCS was "duty bound to comply with them". 272 Mr Slevin referred to the Transport Industry case at [215] where the Full Bench noted the Transport Workers' Union had proposed that all transport operators be required to develop and implement a Drug and Alcohol Policy designed to ensure: (iii) Alcohol and/or drug problems arising from recreational use should be dealt with as health problems, with an emphasis on education and rehabilitation. 273 Mr Slevin submitted that the Full Bench in the BHP Steel case had adopted a cautionary approach: 14 The resolution of the issues in these proceedings represent some real difficulties and ultimately requires close attention to be given to both the nature and purpose of the Policy and the particular provisions of it. 15 However, we have to decide to generally approach the matter in accordance with the observations of Walton J, Vice President in Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 at 182 as follows: This approach is particularly required given the complex and difficult issues besetting this dispute. Those issues involve a counter-balancing of various rights or interests including safety and health in the working environment, fair and reasonable treatment in employment and particularly in relation to discipline in employment (and the management of a workforce in relation to same), privacy, protection against violation of personal freedom as well as a consideration of local cultural, business and economic matters. There is no easy balancing of these and other issues raised in the dispute. They intersect with various statutory and common law requirements. There are subsidiary matters which also affect each issue. For example, "testing" raises issues including the maximum acceptance level of drug and alcohol content, methods of testing, the accuracy of testing and the measurement of impairment resulting from drug and alcohol use. In a context in which both parties accept the need to regulate drug and alcohol use and there are issues concerning safety at the workplace, the benefits which will derive from obtaining a common approach to any drug and alcohol programme can not be overstated. The recommendation which the Commission makes, and the provision of a trial period, is designed to enhance the achievement of that objective by placing the parties in a position where their respective positions (so far as can reasonably be accommodated as a result of conciliation at this time) are preserved whilst some closer review of the policy is undertaken. 274 A similarly cautious approach when dealing with disciplinary sanctions under Drug and Alcohol Policies was expressed by the Full Bench in the Corrective Services case. The employee in that case refused to undertake a test when it was asserted there was some intelligence that she may be affected by alcohol whilst on duty or be engaged in drug misuse. The reasons were not given to her at the time and she took the view: Well look, I'm refusing to do the test until you tell me because under the policy that's what you're relying upon and I'd like to know. 275 The Full Bench subsequently decided the employee was entitled to know the allegations and her refusal was not unreasonable. Mr Slevin submitted that in upholding the appeal and reinstating the appellant the Full Bench stated: 43 Properly, a refusal to undertake a drug test required in accordance with this legislative scheme and policy, amounts to misconduct which will result in disciplinary action. It follows that Ms Gay's refusal to provide the required sample, amounted to a serious error of judgement, properly to be considered in accordance with the Department's usual disciplinary procedures. As the Commissioner found, compliance with the drug and alcohol policy must be accepted. 44 Those observations having been made, it must also be observed, however, that while s 236F(2) of the Crimes (Administration of Sentences) Act provides that 'the selection of a member of correctional staff for testing under subsection (1) may be conducted on a random or targeted basis', the policy which the Department has implemented, involves certain constraints. Relevantly in this case the policy provides that: Where the Commander, Security and Investigations is in possession of verified intelligence or compelling circumstantial evidence that an employee may be affected by alcohol whilst on duty or be engaged in drug misuse, the Commander may direct that targeted breath and urine testing to be conducted. 45 The Department no doubt had good reason for framing the policy in that way. It follows that in proceedings such as this, where the fairness of a decision taken in disciplinary proceedings following upon a refusal to undergo a drug test is put in issue in proceedings brought under Part 6 of Chapter 2 of the Act, the Department may be called upon to show that it did in fact require a sample to be provided in circumstances where 'verified intelligence or compelling circumstantial evidence indicating that the employee may be affected by alcohol whilst on duty or engaged in the misuse of drugs' had been received. 276 Mr Slevin observed the inappropriate application of disciplinary sanctions is to be found in the decision of the Full Bench of the Western Australian Industrial Relations Commission in Larkin v Boral Construction Materials Group Ltd (2003) 83 WAIG 929 where it was found that the employee's dismissal following a refusal to undertake a drug test was an oppressive exercise of the employer's right to dismiss and that case stands as a clear statement of the need to approach the use of disciplinary sanctions within the context of the AOD Policy with due care and caution. 277 Mr Slevin submitted the relevance of the AOD Policy cases referred to was that PWCS was obliged to ensure that its Policy as stated and agreed to by the Union was followed. Ordinarily, PWCS should be able to come to the Commission in relation to Mr Dorsett and identify where the Policy had been followed and if they relied on the Policy to dismiss Mr Dorsett the onus was on them to prove their case. They had not done so. 278 On 8 December 2007 Mr Dorsett was required to undertake a random urine drug test. The test was non-negative and the urine sample was sent for laboratory testing. Mr Dorsett was immediately suspended without pay. The laboratory test result released on 13 December confirmed Mr Dorsett had tested positive for other drugs. 279 At a meeting convened on 14 December 2007 involving Mr Johnson, Ms Jackson, Mr Dove, Mr Dorsett and Mr Outram, the Union delegate, Mr Dorsett was provided with copies of the AOD Policy and Procedure, the PWCS Disciplinary Procedure and a letter setting out PWCS' version of the background events concerning the positive test. The letter also informed Mr Dorsett that disciplinary action would be taken and PWCS was contemplating terminating his employment. Mr Dorsett was suspended without pay until 18 December and was asked to provide a letter setting out a valid reason for the positive test and reasons why he should not be dismissed. In particular, he was asked to address the question of how he could rebuild the confidence that PWCS required of him as an employee. 280 It was Mr Outram's evidence that arising from the various meetings between 14 and 18 December, there was an understanding "that termination, whilst it may have been considered, wasn't really on the cards". Mr Johnson had said he was surprised Mr Outram had formed that impression. 281 Mr Carman's evidence was he had discussed the dismissal with PWCS general manager, Mr Davidson, who had also given evidence that on the morning of 18 December 2007 he met with Mr Carman and Ms Jackson to discuss Mr Dorsett's situation, including his work history, performance and the written responses provided by Mr Outram and himself. It was Mr Davidson's evidence that: Following the review we discussed what was the appropriate penalty in respect of the three 2007 breaches. All parties were concerned about the matter and the loss of trust and confidence in Mr Dorsett's ability to comply with our OHS standards of which our AOD Policy is a critical element. 282 Despite the written responses provided on 17 December 2007, Mr Carman proceeded to dismiss Mr Dorsett on the afternoon of 18 December. Mr Carman questioned Mr Dorsett about the events on 1 July 2007 and the negative test on 8 December 2007. However, there was no discussion about the matters raised in the responses provided on 17 December. Mr Dorsett was dismissed following a brief adjournment. As a matter of ordinary industrial practice, Mr Carman should have contacted Mr Boyle and urged him to attend the meeting. 283 Mr Slevin contended it was clear Mr Carman held the view prior to the meeting that Mr Dorsett should be dismissed. In support of that proposition, Mr Carman had given the following evidence: A break occurred. During the break I discussed with Mr Johnson and Ms Jackson the information provided at the meeting. I formed the view that nothing had been put to me at that meeting that warranted a change in my view that Mr Dorsett's actions should result in termination of Mr Dorsett's employment. He further contended the evidence of both Mr Carman and Mr Davidson in cross examination was that a decision to dismiss Mr Dorsett was taken before the meeting. 284 Mr Slevin submitted the operative paragraphs of the termination letter provided to Mr Dorsett on 18 December 2007 relied heavily upon the occupational health and safety requirements of the terminal: Decision In taking into account all the available information, PWCS is satisfied that it has provided you with more than sufficient time, support and opportunity to improve your performance and your compliances with PWCS AOD Policy, a policy which was well known to you. In response to the support and commitment demonstrated by PWCS, rather than improve your fitness for work it is apparent to PWCS that the pattern that was detected in 2004 has deteriorated rather than improved. As a result, PWCS has lost all trust and confidence in you as an employee in terms of your capacity to attend work in a fit for work state as required or to respect and abide by PWCS' policies, procedures and occupational health and safety requirements. Accordingly, PWCS has made the decision to terminate your employment with pay in lieu of notice and as a result your employment will end immediately. 285 Mr Slevin submitted the letter set out the background relied upon by PWCS. Firstly, a positive test result for cannabinoids in March 2004. Secondly, a series of events arising from an incident on 28 June 2007 when Mr Dorsett went home sick and did not undertake a scheduled test. Arising out of those events PWCS asserted that there were two breaches of the AOD Policy. Thirdly, a positive drug test on 8 December 2007. Combined, these events constituted the alleged misconduct that justified the dismissal and the onus lay with PWCS to prove the alleged misconduct occurred. In respect of those three matters, Mr Slevin made the following submissions: 286 Mr Slevin submitted that March 2004 was the first time Mr Dorsett had tested positive under the AOD Policy since it was introduced in 2001. He was issued with a written warning under the Policy which included the following statement: This letter is a written warning, and a copy will be placed on your personnel file. The warning will remain active for a period of 12 months. After this period the warning will no longer be active, but will remain on file. 287 Mr Dorsett was subsequently encouraged to attend counselling and rehabilitation services. Counselling only becomes compulsory after a second positive test is recorded within 12 months. Moreover, Mr Dorsett had been tested for other drugs approximately four times per year since 2004 and did not test positive again until December 2007. Further, the evidence of Mr Sears concerning a conversation he had with Mr Dorsett in late 2003 or early 2004 is contested by Mr Dorsett and, in any event, the conversation was not a consideration in the decision to dismiss Mr Dorsett. Rather, Mr Carman had confirmed in cross examination that the reason for dismissal was related to the allegation of three positive test results under the AOD Policy during 2007. 288 Mr Slevin contended the test results required close consideration. The first related to the allegation that Mr Dorsett had refused a test on 26 June 2007. The AOD Policy and Procedure on refusals relevantly states: Refusal to undertake a compulsory test An outright refusal to provide either a sample of breath for BAC or a sample of urine for drug testing will be regarded as that person being in breach of the Policy. The consequences of refusal will be the same as for a positive test result. Further, the AOD Policy and Procedure also states: Refusal The authorised Collector shall use the following procedure if a person refuses to take a drug or alcohol test. 1. Inform the person who refused the test that a refusal will have the same consequences as a positive result. 2. Inform the person's Leader of their refusal to take the test. 3. After the discussion between the Leader and the person, the Leader will re-offer the test to the person. 4. If the person still refuses, the refusal will be recorded as "Refused Test" on the Breath Test Positive Result (Appendix B) or the Initial Drug test Record (Appendix C), depending on the result. Leader of a person refusing a test shall use the following procedure: 1. Discuss refusal with the person refusing the test – inform them of the consequences of refusal. 2. If the person still refuses, advise them that they will be required to leave site and their absence will be regarded as special leave without pay or a person may apply for other leave. 3 Arrange transport home. 4. Inform the Department Manager of the situation and ensure all documentation is forwarded to Specialist Advisor OH&S for recording and filing. 5. The Person concerned will not be permitted to return to work until a discussion is held with the appropriate Leader and a negative result is obtained or the person is medically examined and pronounced fit for work. PWCS may also require a medical assessment of the Person by their own nominated medical practitioner. 289 Mr Slevin stated the AOD Policy and Procedure contain the following relevant definitions: Collector – A person authorised by PWCS who instructs and assists people at a collection site and who receives and makes an initial examination of the urine specimen provided by the person. A Collector shall have been instructed to ensure conformance with AS 4308-2001. Leader – The person accountable for assessing fitness for work of an employee, contractor or visitor. Manager - The person at Level 2 or above who is accountable for the work of the team member. Positive Result – A refusal to undertake a test as per the PWCS Alcohol & Other Drugs Policy and Procedure. 290 Mr Slevin stated Mr Dorsett arrived at work for night shift at 6.00pm on 26 June 2007. He became ill at about 7.00pm and decided that he was too sick to continue his shift. Unaware that drug and alcohol testing was occurring on the site, he went to the crib room and rang his supervisor, Mr Dove to tell him that he was leaving site sick. Mr Dove told Mr Dorsett to remain in the crib room and he would meet him there. Mr Dorsett conformed and when Mr Dove entered the crib room there was a conversation. It was uncontested that during that conversation Mr Dove told Mr Dorsett that he had come up for a random test. Mr Dorsett asked what kind of test and as Mr Dove did not know, Mr Dorsett said that he did not see the purpose of the test as he was going home sick. 291 Mr Slevin also contended there was a conflict in the evidence about what else was said during the conversation between Mr Dove and Mr Dorsett. For his part, Mr Dove's evidence was that he told Mr Dorsett that leaving site would be regarded as a positive result under the AOD Policy. Mr Dorsett denied Mr Dove made that statement. Mr Dorsett also denied Mr Dove's evidence he told him he had recently smoked marijuana and would not pass a drug test. Mr Dove stated he told Mr Johnson who subsequently said there was an arrangement between Mr Dove and himself to keep the matter confidential. 292 However, in dismissing Mr Dorsett, PWCS did not rely upon this alleged conversation and it was Mr Slevin's submission that the allegation was never put to Mr Dorsett. Accordingly the Commission only has Mr Dove's word against Mr Dorsett's as to what was said in the conversation. Resolving the conflict as to what was said involves an assessment of the credibility of the evidence of both witnesses. In resolving such conflicts, Mr Slevin submitted the Commission should have regard to the observation of the High Court in Fox v Percy (2003) 214 CLR 118 where at 128-129 Gleeson CJ, Gummow and Kirby JJ stated: [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances[49]. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. 293 Mr Slevin contended the first conflict was whether Mr Dove told Mr Dorsett on 26 June 2007 that if he left site he would be regarded as having tested positive under the AOD Policy. Mr Dove's evidence that he did so was denied by Mr Dorsett who alleged he was not told PWCS would regard this as a positive test until Mr Johnson informed him during a phone call on 28 June 2007. 294 Accordingly, the logic of events and the contemporaneous material support a finding that Mr Dove did not tell Mr Dorsett his leaving site would be regarded as a first positive. In that regard, Mr Dove's evidence was that he was not aware whether the proposed test was for alcohol or other drugs so he was not in a position to say what test was being refused. Further, Mr Dove did not follow the set procedure to be followed for test refusals concerning the circumstances of Mr Dorsett's intention to leave the site due to illness. 295 Secondly, there was no reason for Mr Johnson to call Mr Dorsett on 28 June 2007 if he understood Mr Dorsett had already been told about the implications of leaving site. With respect to Mr Dove's email of 1 July 2007, Mr Johnson said in cross examination that he asked Mr Dove to put the events of 26 June and 1 July 2007 in writing. That email simply recorded the following concerning the conversation: He told me that he did not want to do a test because he was going home. I requested him to have a test, and he asked "what sort of test?" I said that I did not know what sort of test was involved, and again he said that he was going home, and not doing a test. 296 Mr Dove admitted in his first Statement that he was aware of the AOD Policy from a recent incident concerning a Mr "Z". Mr Dove's third Statement provided further evidence about that incident and a subsequent letter provided to Mr "Z". Cross examination and that letter revealed that Mr Dove had treated Mr Dorsett differently. 297 Mr Johnson's first Statement concerning the meeting with Mr Dorsett and Mr Dove on 2 July 2007 made no mention of Mr Dove saying on 26 June 2007 that it would be a first positive. Further, the conversation between Mr Dove and Mr Dorsett was summarised in Mr Johnson's written warning on 2 July 2007 as follows: On Tuesday 26 June 2007, you attended work on night shift and were advised by your supervisor, Rod Dove that you were randomly selected to participate in an Alcohol and Other Drug (AOD) test. Following this advice, you notified your supervisor that you were sick and was going home. At this time, your supervisor requested that you complete the test before leaving site to which you responded "what sort of test?" Your supervisor advised that it was either an Alcohol or Other Drug test, he did not know. You then left site without completing a test. 298 Both the letter provided to Mr Dorsett by Mr Johnson on 14 December 2007 and his termination letter set out the conversation with Mr Dorsett on 26 June 2007 but did not include any suggestion that Mr Dove had told him that leaving site would be regarded as a first positive. Indeed, the first mention of Mr Dove informing Mr Dorsett of that position was contained in the Statements of Mr Dove and Mr Johnson filed on 13 March 2008. 299 In resolving this conflict Mr Slevin argued the Commission should find the credibility of Mr Dorsett was not in any way impugned by the way he presented his evidence. He had been frank and honest, had answered questions directly and made concessions when it was suggested to him that his recollection was faulty or was reminded by other accounts of events. However, Mr Dove had cause to justify his conduct both in the interest of PWCS' case and where it was clear in the circumstances he did not follow the AOD Policy. Accordingly, based on the apparent logic of events and the contemporaneous materials canvassed, the Commission should find Mr Dorsett's account was correct in that he was not told his leaving site on 26 June 2007 would be regarded as a first positive under the AOD Policy until 28 June 2007. 300 Mr Slevin contended it was clear on the evidence that Mr Dorsett's actions on 26 June 2007 did not constitute an outright refusal or a positive result as defined in the AOD Policy and Procedure. Simply put, there was no breach: · Rather he, Mr Dorsett, was sick and questioned the need to undergo a test and then went home. There was no outright refusal by Mr Dorsett to take the test. · Mr Dorsett did not refuse to an authorised collector to take a test. · A "Refused Test" was not recorded on a Breath Test Positive Result Form or an Initial Test Record form. · Mr Dove did not discuss with Mr Dorsett that he was refusing the test and did not inform him of the consequences of a refusal. · Mr Dove did not tell Mr Dorsett he would be required to leave site and his absence would be regarded as special leave without pay or that he may apply for other leave. · Mr Dove did not arrange transport home for Mr Dorsett nor did he inform the department manager of the situation and ensure all documentation was forwarded to the specialist advisor OH&S for recording and filing. 301 Moreover, when told by Mr Johnson he was regarded as having refused a test on 26 June, 2007 Mr Dorsett was not permitted to return to work until he had undertaken an alcohol test and a negative result was obtained. Mr Dorsett's next shift was 1 July 2007. 302 The AOD Policy and Procedure also set out four distinct requirements on PWCS when a first positive occurs: The Leader will discuss the positive result with the employee who will be advised of counselling services available and if necessary referred to an appropriate service. Before an employee returns to work and resumes normal duties an acceptable test result will be required and the employee must demonstrate to the satisfaction of their Leader that they are fit for work. A monitoring program will be implemented in conjunction with the employee upon the employee's return to work. This program will include two random Tests within six months with the first occurring within the first month of return to work. The positive result will be noted in a letter advising the employee of the breach of policy and will remain on the employee's personnel file. 303 Mr Johnson agreed in cross examination the only Policy requirement met was that Mr Dorsett was not allowed to return to work until he had provided an acceptable test result. In that regard, Mr Dorsett was tested at the gatehouse at the beginning of his shift on 1 July 2007 and the gatehouse breathalyser recorded a reading of 0.048 percent BAC. He was asked to wait an hour and the confirmatory test result was 0.022 percent BAC. PWCS regarded that test result as a second positive and Mr Dorsett was sent home. Mr Slevin submitted PWCS acted contrary to the AOD Policy. 304 Mr Dove agreed in cross examination that the reason for the test should have been recorded as a "Return to Work" test and not "Random Positive" as set out in the Confirmatory Breath Test Form. Mr Johnson also agreed in cross examination that it should have been recorded as a "Return to Work" result. In that regard, Mr Slevin noted the AOD Policy and Procedure described the PWCS program for testing as follows: Program of testing PWCS has established a program of testing that includes Self-testing, Post Incident, Fitness for Work (Causal) & Random testing. 305 Accordingly, Mr Slevin alleged the test conducted on 1 July 2007 was not a test under the testing program. It was not a random or self test, nor a post incident or Fitness for Work (Casual) test. Mr Dorsett was tested to determine whether he could return to work. When the confirmatory test recorded 0.022 BAC, the proper application of the procedure was he could not return to work. It was not a further positive result for the purpose of the procedure. Moreover, the AOD Policy and Procedure provided the following relevant definitions: Confirmatory Test – Alcohol - Use of a calibrated wall mounted breathalyser to quantify the level of alcohol present. … Initial test – Alcohol - Use of a hand held breathalyser to identify the presence of alcohol. … However, in Mr Dorsett's case the test results showed both his initial and confirmatory tests were taken using the same machine and the test results were not entered until 4 July 2007. 306 The Commission should find that PWCS did not follow the AOD Policy and Procedure in relation to the June/July incidents and those events did not constitute a first or second positive result. Further, the Commission cannot be satisfied there was an outright refusal by Mr Dorsett to test on 26 June 2007, nor can it be satisfied the test results from the breath tests conducted at the gatehouse on 1 July 2007 were such as to constitute a further positive test result under the testing program. 307 Mr Dorsett's test for other drugs on 8 December 2007 was a random test conducted in accordance with the AOD Policy and Procedure. It was a first positive test under the Procedure and should have been treated as such. 308 Mr Berry's evidence was that he was available on site one day per week and otherwise contactable by mobile phone. Mr Slevin contended the program was under-resourced and in relation to Mr Dorsett, operated as follows: On 2 July he is told "Go and see a counsellor. Consult with a counsellor, consult with your supervisor". The written warning letter stated, "Give me a rehabilitation plan by 31 July". 309 Given Mr Berry's availability, there were only four occasions up until 31 July 2007 where he could seek assistance. Mr Berry was a busy person and difficult to contact by telephone. Unfortunately, Mr Dorsett was not able to arrange a consultation within the timeframe set. Despite that difficulty, PWCS had determined Mr Dorsett had adopted a cavalier approach to his rehabilitation plan. Mr Johnson was unimpressed. Mr Dove did not confer with Mr Dorsett about the plan through July and it was not until August that Mr Dove spoke to Mr Dorsett, under pressure from Mr Johnson, who "was on Mr Dove's back about it". By 20 September 2007, Mr Dorsett had prepared a plan and Mr Dove subsequently communicated with Mr Johnson that "everything's okay". While Mr Berry provided counselling services to the best of his ability, given the limited time he was able to spend at the Kooragang terminal, the Employee Assistance Program was incapable of application in any meaningful way. 310 Mr Slevin sought to apply the reasoning and test principles adopted by Sams DP in Natoli's case. Mr Dorsett was dismissed because PWCS held he had breached the AOD Policy and Procedure three times in 12 months. Applying the proper application of the AOD Policy and Procedure, the Commission should find that the dismissal of Mr Dorsett was harsh, unjust or unreasonable because PWCS had not proven the allegation that he acted in breach of the AOD Policy and Procedure three times. 311 In the alternative, Mr Slevin submitted the second aspect of the test in Natoli's Case concerned a consideration of the severity of the punishment and whether Mr Dorsett's conduct warranted dismissal. In that regard, he argued should the Commission consider the misconduct alleged or at least part of it proven, the dismissal was nonetheless harsh, unjust or unreasonable as the conduct did not warrant dismissal. Absent the prism of the AOD Policy and Procedure, Mr Slevin argued the slavish application of the "three strikes and you're out approach" was incorrectly applied by PWCS in respect of a positive result for other drugs in 2004, going home sick and not undertaking a drug test on 26 June 2007, recording 0.022 BAC in his confirmatory test on 1 July 2007 and testing positive for other drugs on 8 December 2007. 312 Mr Slevin stated PWCS could not assert conduct some four years prior to December 2007 could be relied upon to justify Mr Dorsett's dismissal. The warning letter dated 23 March 2004 following the test (conducted under the AOD Policy) stated: This letter is a written warning, and a copy will be placed on your personnel file. The warning will remain active for a period 12 months. After this period the warning will no longer be active, but will remain on file. 313 Mr Slevin contended leaving the site sick on 26 June 2007 could not be regarded as misconduct. There was no evidence nor suggestion that Mr Dorsett was not sick on 26 June 2007. Further, the 1 July 2007 test result was a very low range BAC and Mr Dorsett had explained that he had been at a party the night before and had misjudged the amount of alcohol consumed. He was not inebriated and was conscious he needed to moderate his intake of alcohol. His evidence was he left the party early and thought he would be fit for work by the morning. If the test results were accurate then Mr Dorsett had misjudged his intake that subsequently resulted in a confirmatory test of 0.022% BAC and just slightly over the limit. 314 A further issue arose in the oral evidence about the training given to employees concerning the use of alcohol that is relevant to a consideration of the events of 1 July 2007. With regard to the 1 July 2007 test result, Mr Slevin contended PWCS did not provide evidence of any training it had provided to Mr Dorsett to assist him in assessing how to judge when an employee's alcohol consumption would affect that employee's fitness for work. He said Mr Carman's attitude as expressed in cross examination was "it was the employee's responsibility to know these things" whereas the objective of the AOD Policy stated: Provide assistance through a range of preventative, educational and rehabilitative measures to overcome alcohol and other drug problems that could impair a person's fitness for work 315 Mr Slevin submitted the training provided to Mr Dorsett did not include information about the effects of alcohol and how to assess the amount of alcohol that could be consumed the night before a shift to ensure fitness for duty. In cross examination, neither Mr Carman nor Mr Sears could provide the Commission with any assistance in this regard. Accordingly, as Mr Dorsett was unaware of how to accurately measure his alcohol consumption and had received no training, the Commission should find that his 0.022% BAC did not justify dismissal. 316 During cross examination Mr Carman was adamant there was no flexibility to take into account the level of the positive result. However Mr Slevin contended the Policy did not prevent such factors being taken into account and it was clear even after three positives in a 12 month period, the AOD Policy allowed some discretion in determining appropriate disciplinary action and the BAC test level would be a factor. Similarly, the admission of Mr Dorsett that he was conscious of the need to present fit for duty and he had moderated his drinking on the Saturday night believing he would be fit indicates he did not act recklessly or in disregard of his obligations. 317 Mr Slevin stated that while Mr Dorsett's 8 December 2007 positive test for other drugs was an AOD Policy breach, it was the first breach of the testing program in 2007. Moreover, following the 0.022 BAC test result, Mr Dorsett was provided with some assistance through Mr Berry and had produced a rehabilitation plan in relation to alcohol as requested. Clearly, Mr Dorsett's conduct did not justify dismissal. 318 Mr Slevin referred to Natoli's case where Sams DP stated at 225: The allegations against the applicant were described as misconduct - the additional adjectives "wilful" or "serious" were not used. However, in my opinion, where an employee has been dismissed for misconduct, the conduct must be such as to constitute a repudiation of the contract of employment by the employee. There must be disclosed a wilful and deliberate intent by the employee which strikes at the very core of the employment relationship. 319 Mr Slevin referred to the decision in North v Television Corporation Limited (1976) 11 ALR 599 where Smithers and Evatt JJ, set out their conclusions "on the kind of conduct that would justify dismissal at common law" at 608-609: It is of assistance to consider the expression "misconduct" by reference to subject matter to which it is related and the context in which it appears. The subject matter is the termination by one party against the will of another of a continuing contract of employment on the ground of breach of one of the terms of the contract. And the context is such as to indicate that certain breaches of a non-serious nature, some of which would be within the connotation of misconduct, are not regarded as grounds for termination. In such a situation it is reasonable to interpret the expression "misconduct" as referring to conduct so seriously in breach of the contract that by standards of fairness and justice the employer should not be bound to continue the employment. ... For purposes of the application of the common law principles to the facts of this case, the remarks of the Master of the Rolls in Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 at 287 and 289, are in point. He said:- To my mind the proper conclusion to be drawn from the passages which I have cited and the cases to which we were referred is that, since a contract of service is but an example of contracts in general, so that the general law of contract will be applicable, it follows that, if summary dismissal is claimed to be justifiable, the question must be whether the conduct complained of is such as to show the servant to have disregarded the essential conditions of the contract of service. ... I do, however, think (following the passages which I have already cited) that one act of disobedience or misconduct can justify dismissal only if it is of a nature which goes to show (in effect) that the servant is repudiating the contract, or one of its essential conditions; and for that reason, therefore, I think that one finds in the passages which I have read that the disobedience must at least have the quality that it is 'wilful'; it does (in other words) connote a deliberate flouting of the essential contractual conditions. 320 Applying the reasoning of the judgement of Smithers and Evatt JJ in North v Television Corporation Limited and Sams DP in Natoli's case, Mr Slevin submitted Mr Dorsett's conduct in March 2004, June/July 2007 and December 2007 could not be said to constitute a fundamental and wilful repudiation of the contract of employment. 321 Mr Slevin submitted the following mitigating factors were raised by Mr Dorsett in his response letter dated 17 December 2008: · He was sorry that things had reached the stage they had. · At no stage did he intentionally arrive at work under the influence of alcohol or other drugs. · He had exercised lack of judgement and commitment towards fitness for work and had been neglectful and stupid. · He could assure that his dedication to his work performance would improve instantly. · Over a 20 year work history he had never before had an employer question his trust and commitment towards work practices and safety. · He would rectify his current relaxed outlook immediately. · He accepted and recognised the seriousness of the breach of policy. · He would work with his supervisors and acknowledge any counselling or help he may need to rectify his mistakes and lack of judgement. · He sought leniency in the disciplinary procedures based on his past work achievements, diligence and capability. · He had learnt his lesson. · He was hoping on a long and successful future with PWCS. 322 Mr Outram stated in his letter of support: · Mr Dorsett had displayed his ability to be a productive and active team member over many years. · He was very highly thought of by his peers. · Management had also thought highly of Mr Dorsett, choosing him for higher duties and Wharf Foreman Roles. · He had self tested twice following the incident and was negative. · He understood the gravity of the situation and that a more responsible work ethic in regard to safety was required of him. · Mr Dorsett had a young family which relied upon him as a provider and a father. · He had the support of MUA members who were committed to assisting Mr Dorsett regain the trust that he had shown in the past. 323 Mr Slevin submitted during conciliation and in his written evidence Mr Dorsett had explained he experienced personal problems between July and December 2007 associated with his brother's cancer and his family situation. Mr Slevin contended there was no reason to doubt Mr Dorsett's problems were not genuine. He was not challenged about them in cross examination and Mr Berry's cross examination was that Mr Dorsett had mentioned his brother's illness during their counselling discussions concerning alcohol consumption prior to his dismissal. He contended PWCS was aware of these circumstances but no evidence had been led to explain why they were not accepted. Instead, PWCS relied upon a slavish commitment to its AOD Policy and Procedure which it failed to follow in its treatment of Mr Dorsett. Mr Slevin argued PWCS' failure to take proper account of mitigating circumstances rendered the dismissal harsh, unjust or unreasonable. 324 In submissions supporting Mr Dorsett's reinstatement, re-employment or the grant of monetary compensation, Mr Slevin referred to the construction of s89 of the Act and the provisions of s84(4): s84 Application for remedy by dismissed employee … (4) An application may be made under this Part even though the applicant does not specify the nature of the remedy sought or requests compensation only. However, this subsection does not affect the requirement under this Part that compensation is available only if the Commission considers that reinstatement or re-employment would be impracticable. 325 Mr Slevin observed it was trite to say reinstatement was the primary remedy, see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94] Plummer v Stannard Bros Launch Service (2005) 145 IR 111 (at 115); and Budlong v NCR Australia Pty Limited [2006] NSWIRComm 288 at [105] to [110]. 326 Mr Slevin submitted the reference in the termination letter that PWCS had "lost trust and confidence in Mr Dorsett in the future" was an overreaction disproportionate to Mr Dorsett's circumstances. In that regard, he referred to Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 at 191-192, where the Full Court of the Industrial Court of Australia said: If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. 327 The reasoning of the Court in Perkins v Grace Worldwide (Aust) Pty Ltd had been acknowledged by Full Benches of this Commission, including Hollingsworth v Commissioner of Police No 2(1999) 88 IR 282 at 342 Oswald v New South Wales Police Service (1999) 90 IR 42 at 68 and Little v Commissioner of Police No 2 (2002) 112 IR 212 at [91]. Mr Slevin also referred to the decision of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody. 328 Mr Slevin argued the Commission should treat PWCS' opposition to reinstatement with great caution, particularly on the grounds that during cross examination, Mr Carman displayed an attitude against reinstatement so extreme that it should be considered disingenuous. 329 Mr Slevin argued PWCS' failure to comply with the recommendation of the Commission and reaffirm its decision to dismiss should be taken into account in exercising the Commission's discretion to order the reinstatement of Mr Dorsett. Further, Mr Dorsett's offer to be subjected to a rigorous testing regime to allay any concerns PWCS might have about his capacity to manage fitness for duty requirements and his recent attendance at drug and alcohol sessions were also relevant to the Commission's consideration. It was also open to the Commission to reinstate Mr Dorsett on a conditional basis and in that regard he referred to the decision in AWU, NSW (on behalf of Stojanovski) v BlueScope Steel (AIS) Pty Ltd [2004] NSWIRComm 304 ('the Stojanovski case') where the Full Bench reinstated an employee on certain conditions related to a drug and alcohol procedure: 34. That Mr Stojanovski be reinstated in his former position on terms not less favourable than those that would have been applicable if he had not been dismissed effective on and from Monday, 10 October 2004, subject to the following conditions: (a) Mr Stojanovski submit to and pass appropriate testing in accordance with the return to work requirements of the Alcohol and Other Drugs Management Procedure, including meeting any undertaking for random testing earlier given by Mr Stojanovski; (b) there be placed on Mr Stojanovski's record a final warning in relation to his conduct on 18 September 2003. (c) Mr Stojanovski shall have full continuity of service for the purpose of any calculation of redundancy benefits. 330 Mr Slevin submitted in the event the Commission was concerned about the ability of Mr Dorsett to meet his obligations under the PWCS AOD Policy and Procedure conditions similar to those applied by the Full Bench in the Stojanovski case, such conditions should be incorporated in the orders sought. For PWCS 331 At the outset, Mr Warren confirmed the Rail Safety Act 2002 and Regulations raised by the Commission during the course of Mr Carman's cross examination applied to all employees of PWCS, ranging from the general manager down and to any person employed either in direct connection with the railway within the Kooragang terminal or as a consequence of that railway, such as working at the wharf coal loading facility. Accordingly, PWCS had no discretion under the AOD Policy or the Rail Safety Act to allow an employee to continue working once it was aware their alcohol level was above .02 percent BAC. He also referred to Mr Carman's evidence that implementation of the AOD Policy was a vital part of the PWCS Occupational Health and Safety regime. 332 Mr Warren said the issue of the AOD Policy was very much influenced by PWCS' obligations under s 8 of the Occupational Health & Safety Act 2000 to ensure the health, safety and welfare of employees. 333 Mr Warren stressed the use of the word "ensure" throughout s 8 did not mean "try hard". Rather, it meant "to the extent possible to have the particular workplace safe to the extent possible". An employer was obliged to ensure that what they were currently doing at work was safe. They were also obliged to seek out and remedy any potential risks. In that regard, Mr Warren referred to the decision in WorkCover Authority of New South Wales v Industrial Galvanisers Corporation (2002) 119 IR 306 where Boland J stated: 47 Moreover, the obligation on an employer to ensure the health and safety of persons at work is not confined to the taking of precautions only when there are warnings or signals of danger or where experience indicates that a risk to safety has arisen and requires remedy: Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 at 209-210; Shannon v Comal co at 364. The Act also requires a pro-active approach and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace: Nelmac citing Hill J in WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. 334 Mr Warren also referred to the Full Bench decision in Narayan v Inspector Chamings (2007) 169 IR 414 at 425: 46 In WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 the Full Bench at [43] quoted with approval the observations of Hill J in WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Limited (1998) 82 IR 80 at 85: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 47 The conduct of the appellants could not, in any way, be described as proactive; they knew the log-splitting machine presented a risk to the safety of the operator but did nothing to modify, or attempt to modify, the machine in order to ameliorate the risk. 335 Mr Warren identified the importance of paragraph [47] above and drew the parallel that if PWCS knew that a particular employee was or had been attending for work with a blood alcohol or other drugs content in his/her blood and did nothing about it, they would clearly be open to criticism and prosecution under s 8 of the Occupational Health and Safety Act. Additionally, if PWCS knew there was a risk that the employee might turn up under the influence of alcohol or other drugs, they would be obliged to do something about it or face prosecution. Accordingly, it was against this backdrop that the PWCS AOD Policy and Procedure was introduced in 2001 amidst full consultation and cooperation from site Unions. Pursuant to that Policy, it was essential that PWCS did everything required to prevent persons coming onto site who might be a risk to themselves or a risk to other persons, whether they were employees or contractors. 336 Mr Warren said that Mr Outram in evidence had candidly and properly recognised there were a number of machines of significant size which operated at the Kooragang terminal reclaiming and stacking coal. A range of conveyor belts rapidly transported coal across the site. There were also large and complex ship loading facilities which required persons to work on ship decks and wharf areas in all weathers 24 hours a day. He also said the site was potentially a very dangerous place and PWCS was charged under the Occupational Health and Safety Act to ensure the safety at work of all employees. 337 Mr Warren referred to Mr Davidson's Statement where in discussing the "state of mind" of PWCS and its "considerations" prior to taking the decision to terminate Mr Dorsett's employment, he said: Following the review we discussed what was the appropriate penalty in respect of the three 2007 breaches. All parties were concerned about the matter and the loss of trust and confidence in Mr Dorsett's ability to comply with our OHS standards of which our A&OD Policy is a critical element. In addition to considering the need to protect Mr Dorsett in the workplace, we also looked at our obligations to co employees, the business and our customers. 338 Mr Warren submitted PWCS was well aware of its responsibilities under the Occupational Health and Safety Act and did everything required to ensure the safety at work of its employees and contractors. The AOD Policy was an integral part of the procedures put in place by PWCS to ensure such safety. 339 Mr Warren observed the Commission must decide this matter by assessing the competing evidence and make an assessment as to credibility. He contended that assessment weighed heavily against Mr Dorsett on some critical issues and where there was a conflict of evidence, the evidence of Mr Dorsett relevant to the conflict "in many cases simply cannot be believed". He submitted that against the backdrop of the High Court judgment in Fox v Percy, the evidence and material of PWCS should be preferred "on the basis of contemporary materials, objectively established facts and the apparent logic of events." 340 Mr Warren referred to the submissions of Mr Slevin concerning the frankness of Mr Dorsett's evidence and submitted consistent with Fox v Percy: ... you don't just look at the way the evidence was delivered, but ... the context in which it was and whether it logically flows. 341 With reference to the 26 June 2007 incident where Mr Dorsett alleged that he "was suffering stomach cramps, which were progressively getting worse," Mr Warren observed: These stomach cramps must have come on suddenly because he certainly was not complaining about them when he first started work. He did not mention them to Mr Dove when he first started work at the toolbox meeting or when he was sent out to do his job. Furthermore, on resumption of work he did not bring a doctor's certificate, and he said in the witness box he did not go to the doctor. 342 Mr Warren recalled Mr Dorsett's evidence was a conversation occurred between Mr Dove and himself with words to the following effect: Dorsett: I need to go home, Rod, I'm sick. Dove: Well, you've come up for a random alcohol and other drug test. Dorsett: What sort of test? Dove: I don't know. Dorsett: Well, I'm going home sick. I don't see the purpose of having the test when I'm going home sick. Dove: Well, they won't like it. Dorsett: Well, I'll discuss that when I get back. 343 With respect to Mr Dorsett's alleged illness, Mr Warren contended if an employee was incapable of walking or was in serious trouble physically, a conclusion could be drawn that "well he's sick and he's going home". However, in this case Mr Dorsett, apparently standing upright, was required to walk past the test van on his way from the crib shed to his car "whilst he's so sick" and asks Mr Dove, "What sort of test?" 344 Mr Warren said when the apparent logic of events was considered, the evidence of Mr Dove was that Mr Dorsett's enquiry, "What sort of test?" followed his direction to Mr Dorsett that he was required to undergo the scheduled test before he left site. With respect to Mr Dove's caution that "by not doing a test it will be classed as a positive result" and Mr Dorsett's admission shortly thereafter that he "wouldn't pass a test. I've had a smoke", Mr Warren contended Mr Dorsett's response was: entirely consistent with a person making up an excuse of sickness, being concerned that he knows he's had a smoke, that is, cannabis, he wants to know what sort of test it is. If it was an alcohol test, he probably would have gone and done it, and then gone home. 345 It was Mr Warren's submission, consistent with Fox v Percy when "the apparent logic of events" test is considered why did Mr Dorsett ask what sort of test was to be conducted? He contended that Mr Dorsett had asked Mr Dove about the type of test because he knew that he would pass one test, but not the other and logically, when Mr Dove replied that he did not know the test scheduled, Mr Dorsett simply replied, "Well I'm going home sick ...". Mr Warren submitted the Commission should question seriously why an employee who is too sick to do anything but to go home would enquire what sort of test was proposed. In such circumstances it was reasonable to conclude that Mr Dorsett enquired because he knew he would only pass one of the tests. The logic of events in this matter "is a telling consideration when looking at the competing evidence". 346 In his third Statement, Mr Dorsett deposed there were two occasions prior to 2007 when he was selected for testing "but wasn't tested because I had to leave the site". In that regard, Mr Warren contended Mr Dorsett was in essence saying: This isn't the first time it's happened. It's happened in the past and nothing's gone wrong. No adverse effect. Why should there be an adverse effect now? 347 The first occasion was in late 2005 early 2006 when Mr Dorsett was on day shift. He had returned to the crib room at about 8.30am and was told by his supervisor that he was required to undertake a test which he subsequently agreed to. At the time, the testing van was parked outside the crib room. According to Mr Dorsett, he then left the site to obtain a crib and when he returned the van was gone. Mr Warren submitted that at this point Mr Dorsett had acknowledged there was a requirement to undertake the test. However, as the van had left site, there was no test and he regarded those circumstances as not having refused to test. 348 However, the evidence of Mr Dove was that the PWCS alcohol and other drug records for 2005 and 2006 relevant to Mr Dorsett stated under the heading "2 December 2005", which is relevantly within the period referred to by Mr Dorsett: Mr Dorsett was listed to be tested. PWCS records show that he was not tested. There was no record of a refusal to test. Mr Dorsett now states he left the site to buy crib, knowing that he was required to do a test and knowing the testing van was on site. He states when he returned to the site the van was gone. I find this hard to believe for the following reasons: Firstly, the PWCS records show that Mr Dorsett was due to be tested at 8.30am. The testing van did not leave the site until 10.45am. I would be very surprised if he took over 2 hours to buy crib as the shop is only 3 minutes away from the Kooragang site. 349 Mr Warren noted that in cross examination, Mr Dorsett agreed that the shop where he purchased the crib was, at most, five minutes away. It was put to him that five minutes there and back and five minutes in the shop was a total of only 15 minutes. He said if 30 minutes at the extreme was allowed Mr Dorsett should have returned to site by 9.00am. The van did not leave the site until 10.45am. That potential scenario was not seriously challenged by Mr Dorsett who simply had no real answer to make in cross examination. He also agreed that permission of a supervisor was required to leave the site. He did not seek permission, yet he accepted that it was usual practice to ask for such permission. 350 With respect to the so-called second scheduled test occasion in mid-2006 where Mr Dorsett alleged that as Mr Herrett had given him permission to return home to attend to some domestic matters he was not required to be tested the following day or at some later stage, Mr Warren drew the Commission's attention to Mr Herrett's evidence that he could not recall any occasion where Mr Dorsett wanted to go home having "first been pre-allocated or pre-advised of the need to do a test". He did recall that on at least one occasion during 2005 Mr Dorsett wanted to return home at short notice and he agreed to the request. Referring to the conflict in evidence of Mr Dorsett and Mr Herrett, Mr Warren referred to Mr Herrett's evidence concerning the AOD Policy and the implications of refusing to undertake a test: As a supervisor I was involved in a number of disciplinary matters relating to Alcohol and Other Drug Policy and positive testing, so I knew the refusal was a serious matter. He also referred to Mr Sears' account of a conversation with Mr Dorsett in late 2003 early 2004 where he alleged Mr Dorsett came to him and said: Look, you know I'm going to go away on a golfing holiday and we're going to get on it. Mr Warren also noted that whilst Mr Dorsett said "No, I didn't say we were going to get on it" , he did depose: I was going on a golfing trip on a bus with 40 others and knew there would be alcohol and marijuana consumed on the bus both up and back. 351 Mr Warren submitted that while this incident did not form part of the reasons for termination, the inconsistency in Mr Dorsett's account of what was said to Mr Sears must lead to a conclusion that Mr Sears' version of events be preferred and that Mr Dorsett was in some way trying to obtain an exemption from the AOD Policy requirements for a period of time to allow him to dry out or to come clean having smoked marijuana or consumed a significant amount of alcohol. 352 Mr Warren referred to Mr Davidson's evidence that when he met with Mr and Mrs Dorsett and Mr Golding on 20 December 2007, Mr Dorsett stated at the outset words to the effect: I know I am stupid in my actions and I got caught. I have a good employment history, I've been here for a number of years and I believe I get along well with my team. I'm sorry for what I've done and I now realise the consequences. 353 Mr Warren contended Mr Davidson's evidence remained unchallenged and it was astonishing that it took all the warning letters through 2004 and 2007, verbal discussions with his superintendent and supervisor, further discussions and letters in December and it was not until he was terminated that he finally said, "Oh, look, I now realise the consequences". 354 Mr Warren referred to Mr Dorsett's written evidence recounting Mr Dove's discussion and enquiry with him, whether there were any other problems that might have led him to exceed the limit with respect to alcohol on 1 July 2007: I advised Mr Dove that I did not require a taxi home. Mr Dove then said words to the following effect: Is there any reason for your coming to work with alcohol in your system? Is there any other problem? I responded with words to the following effect: There are no other problems. I did drink last night but I thought I was fit to attend work. I then left the site and drove home. With respect to Mr Dove's conversation with Mr Dorsett, Mr Warren stated PWCS was searching for reasons other than "I mistimed things", or "It was a lack of judgement", or "I had a few beers last night and I obviously went over". 355 Mr Warren also referred to Mr Dorsett's evidence recounting what Mr Johnson had said to him following his return to work on 2 July 2007: I'm very disappointed about Sunday's outcome, especially when you were given advanced warning. It was very stupid and we are very upset. Mr Dorsett subsequently responded with words to the following effect: I was quite shocked myself and surprised that I was still over the limit. 356 Mr Warren argued that Mr Dorsett's defence when facing his final interview with Mr Carman on 18 December 2007 that he did not know termination of his employment was a possibility, was not available to him because Mr Dorsett's written evidence acknowledged that his job was on the line when Mr Johnson said words to the following effect to him: He advised that if a further breach occurred within the next 12 months, further disciplinary action would occur, including my possible termination of employment. 357 With respect to the 8 December 2007 drug test that returned a non negative result, Mr Warren referred to Mr Dorsett's written evidence and admission that led to that breach of the AOD Policy: ... on the night of Thursday, 6 December 2007 whilst at the pub I had half a dozen puffs of a marijuana cigarette in the car park. I would not normally have done this, but I was with a group of people and felt socially compelled to join in. It was an aberration but a foolish one. 358 Mr Warren submitted that against the backdrop that Mr Dorsett had been made aware in July that "his job was on the line", his behaviour in July and December 2007 was indicative of the problem PWCS now faced: This sort of a response from an employee who knows and has known since July that his job was on the line and that the company were concerned with respect to the safety of him and his fellow workers at the workplace, to be swayed because he was with a group of people and he felt socially compelled to join in, and once again that's the excuse given, the excuse given for having a smoke of marijuana on 6 December when he knew he was under a regime of tight control and tight testing, and exhibits a disregard with respect to Mr Dorsett, a disregard to the company's sound policies and procedures and desire to keep this workplace safe. 359 With reference to Mr Dove's written evidence that at approximately 6.30am on 1 July 2007 he took Mr Dorsett back to the main gatehouse to undertake the alcohol test where he provided a positive test reading of .048 percent BAC, Mr Warren referred to Mr Dove's recollection of the conversation that followed the subsequent confirmatory test of 0.22 per cent BAC: Mr Dove: Do you have any underlying reasons for coming to work with alcohol in your system Mr Dorsett: I attended a street party last night and had drank some beer. I thought I was right to come to work as I stopped drinking at around midnight. Mr Dove: Do you have any personal problems that PWCS could help you with? Mr Dorsett: There are no personal or other problems. 360 Mr Warren submitted the evidence of both Mr Dorsett and Mr Dove concerning the 1 July 2007 non negative test for alcohol was that Mr Dove had made some inquiries to ascertain whether Mr Dorsett was experiencing any problems "we should know about". 361 Mr Warren contended Mr Dorsett's written warning for breach of the AOD Policy dated 2 July 2007 "squarely put to Mr Dorsett that his actions were jeopardising the safety of the site" when he was asked: Please carefully consider your actions and their potential implications for your safety and that of your team. 362 With respect to the AOD Policy, Mr Sears' evidence was that self testing kits were available to employees: PWCS made the decision prior to the implementation of the Alcohol and Other Drug Policy and Procedure that self-testing units for alcohol in the form of breathalyser and self-test kits for other drugs was made available free of cost to employees at the security entrance gates at both terminals and wharf facility entry points. 363 In cross examination, Mr Dorsett accepted he had been told during Mr Sears' AOD training that a refusal would amount to a positive or non negative test result. Moreover, the "AOD Policy and Procedure Employee Presentation September 2001" slides attached to Mr Sears' Statement summarised the implications of refusal, avoidance or falsification with respect to testing at page nine: Refusal to undergo testing has a similar consequence to recording a positive test result. 364 Mr Warren stated that when Mr Johnson met with Mr Dorsett, Mr Spence and Mr Dove on 2 July 2007, he asked Mr Dorsett what the general nature of the illness was that required him to leave the site on 26 June 2007. According to Mr Johnson's evidence, Mr Dorsett said: I had an upset stomach and it was more than likely gastro or something I had eaten. Mr Johnson deposed that he subsequently asked Mr Dorsett: Can you recall our phone conversation on Thursday the 28 June 2007 ? Did I advise that by leaving site and not participating in an AOD test that your actions constituted your positive test result ... ? Did Rod advise you of the need to participate in an AOD test prior to commencement of your next rostered shift? 365 When Mr Dorsett replied "Yes", Mr Johnson asked him, "What were you thinking, if you understand the seriousness of where your actions have led you?", Mr Dorsett then said, "I just overdone it on the day prior to coming back to work." When Mr Dorsett later stated "I wasn't drunk" and "I just overdone it", Mr Johnson asked him, "Are there any outside issues that PWCS may be able to provide assistance or resources to help you with?" Mr Dorsett replied, "I don't have any issues that need assistance. I'm not an alco or anything like that". 366 Moreover, when Mr Johnson stated that when he said to Mr Dorsett: It's not just alcohol that I'm asking about; are there other issues that, for example, PWCS Employee Assistance Program might be able to assist you with? Mr Dorsett simply replied: I don't need any help. 367 Mr Warren argued that Mr Dorsett was aware at all times following his discussions with Mr Dove and Mr Johnson that unless he recognised the seriousness of his actions, his position at PWCS was at risk. In that regard, Mr Johnson's written evidence was that he told Mr Dorsett he was required to prove to PWCS that he was prepared to respect its safety policies and procedures, the inherent level of risk in the operation of its plant and equipment to both himself and his fellow team members when the risk of him being under the influence of alcohol or drugs was high. He also told Mr Dorsett that while the issues at hand were serious and he was under the spotlight, his work performance record had provided him with "an avenue of discretion at this stage of the process". 368 It was Mr Johnson's evidence when he met with Mr Dorsett on 11 September 2007 to discuss what he was required to do following the 2 July warning letter, he exercised some concern he was not complying with counselling and the preparation of a written rehabilitation action plan. When Mr Johnson alleged he had failed to consider his fitness for work issues, Mr Dorsett asserted, "You're going to sack me". Mr Johnson had replied, "That's an absolute last resort". 369 Moreover, at a meeting on 18 September 2007, convened to further discuss the progress of his action plan, Mr Dorsett said it was now completed but refused to give Mr Johnson a copy. Mr Dorsett subsequently stated: We've already talked about this. I've done what you've asked. Why do you want a copy? Mr Warren contended despite his awareness of the serious nature of the matters levelled against him, Mr Dorsett continued to be uncooperative and difficult. He referred to Mr Johnson's version of a discussion with Mr Dorsett on 10 December 2007 where he sought some clarification concerning a Level 3 breach and asked , "... it says in here up to and including termination" to support his contention that Mr Dorsett was well aware of the seriousness of matter. 370 Mr Warren confirmed the wall mounted breathalyser located in the gatehouse had been calibrated to quantify the level of alcohol present on 1 July 2007. He also contended there were no issues concerning the application of the Policy in so far as random selection for alcohol testing was concerned. The Policy under Random Selection-Alcohol clearly stated: The initial test will be used to identify the presence of alcohol. Where alcohol is detected a confirmatory test will be used to quantify BAC levels. 371 Mr Warren referred to the AOD Policy under the heading of Test Results - Alcohol and confirmed PWCS was able to exercise some discretion where a breach had occurred : Where a person records a confirmatory test result of equal to or greater than .02% BAC then the result will be regarded as positive and he or she will be deemed unfit for work and offered transport home. Where a person records an initial test result of equal to or greater than .02% BAC, the person's Leader will assess the situation and ask the person to wait up to one hour until a confirmatory test is conducted. If the confirmatory test result is less than .02% BAC, the Leader may, depending on the nature and requirements of the person's job, allow them to commence or continue their usual duties. Mr Warren said the discretion allowed PWCS to direct an employee to undertake duties other than, say, driving the shiploader when the confirmatory test was less than .02 percent BAC. However, there was no discretion, as was the case with respect to Mr Dorsett's test result on 1 July 2007 where the BAC limit was exceeded. He also noted that Kooragang terminal was subject to the operation of the Rail Safety Act 2002 which also set a 0.2 per cent BAC limit. 372 With reference to Mr Slevin's submission that Mr Dorsett's refusal to undertake a test was not an "outright refusal" where the consequences of such refusal were the same as for a positive test result under the AOD Policy, Mr Warren refuted the suggestion that PWCS had not strictly applied its AOD Policy. In that regard he urged the Commission to consider the evidence of Mr Dove who recounted Mr Dorsett saying words to the effect, "I'm going home sick and I'm not doing the test" on 26 June 2007 and whatever adjective was put on the word "refusal", the statement "I'm not doing the test" equated to a refusal to test. 373 Moreover, Mr Warren said Mr Dorsett had told Mr Dove in clear terms that he was not going to do the required test and in strict accordance with the Policy under Refusal or Falsification of Tests it could hardly be said that PWCS had fallen foul of the refusal provision simply because Mr Dorsett did not turn up at the van and inform the collector of his refusal, as required under the Policy. In response to Mr Slevin's submission that "Mr Dorsett didn't refuse to the collector" he stated: ... policies are important words, but there is no way that I would suggest that Mr Dove could have forced Mr Dorsett to go to the testing van and front up to the collector and then refuse to be tested. This policy in these words infers that the person to be tested has been told they're going to be tested by their supervisor. They've arrived at the test van and the collector has said "Here you are to be tested", and they say "I'm not going to be tested". 374 Mr Warren said that in accordance with Mr Dove's evidence, Mr Dorsett ignored the instruction by his Leader to undertake the test and stated in words to the effect of "I don't care what you're saying, I'm going home". He submitted the Policy was structured and written in terms of "a civil conversation between two rational people coming to a rational decision". Moreover, given the nature of Mr Dorsett's refusal, Mr Dove was unable to comply with the Policy provision that required a discussion of the consequences of that refusal - the requirement to leave site and the absence is regarded as special leave without pay unless other leave is sought. 375 While it was clear on the evidence that Mr Dove had informed Mr Johnson of Mr Dorsett's circumstances in accordance with the AOD Policy, Mr Johnson was unable to discuss his return to work following the required negative test result because "on the Sunday he blew positive again". 376 Referring to the Consequences for Positive Results section of the AOD Policy, Mr Warren submitted the introduction to that part stated: The person's leader is accountable in monitoring the frequency of a person testing positive and shall determine the appropriate action in accordance with the following on a case by case basis. In that regard, he submitted the AOD Policy was designed and implemented in 2001 according to then prevailing circumstances with a degree of flexibility afforded by use of the words "on a case by case basis": Now we urge those words on the Commission that this Policy is designed to be fair, it's designed to create a safe workplace and it's designed to give an employee who is caught within the policy adequate opportunity and chances to correct their actions and so on a case-by-case basis we say one has to approach this Policy. 377 With respect to the AOD Policy requirements under the First Positive Result heading that the Leader first discuss the result with the employee and advise the employee about the counselling services available and if necessary refer them to an appropriate service, Mr Warren submitted: ... as my friend says in his submissions, that employee "Z" as described by Mr Dove clearly went through that process, but with Mr Dorsett, as a result of Mr Dorsett's actions on the Saturday night, what we say clearly drinking to excess, accelerated the process down the road a little bit. Indeed, quite significantly, and when he turned up at the gate, he had two options: he could have self-tested at the gate, and he could have discovered or otherwise what his alcohol content was (or) he could have turned around and gone home and there would have been no effect adversely to him under the Policy. He chose not to do that. He could have, indeed, had some self-testing kits at home, but he (did) not do that. He chose to come to work knowing that he was going to be tested for alcohol. He had a big advantage at this stage. 378 Under the heading of Second Positive Result, a positive result is regarded as a second positive result if it occurs within 12 months of the first positive result being recorded and is managed as if it was a first positive result. Mr Warren contended that while there might well be some policy imperfections and a degree of ambiguity in the words used, as submitted by Mr Slevin, the definition of a second positive result is crystal clear and this position was put in the warning letter dated 2 July 2007 and accepted by Mr Dorsett and his Union. 379 Mr Warren referred to Mr Herrett's evidence that following Mr Dorsett's positive drug test in 2004, he was interviewed and offered self testing kits. In that regard, he recalled Mr Dorsett had made a comment about the possible discrepancy between self test kits and those used to carry out the initial tests. Accordingly, he concluded that Mr Dorsett was aware that self testing kits were available. 380 Mr Warren also referred to Mr Johnson's letter dated 11 September 2007 where he warned that PWCS' patience with Mr Dorsett was running out: Brett, frankly, PWCS' patience with you is swiftly running out. You've received a written warning for breaching PWCS' A&OD Policy and Procedure which required you to action these items. You have been provided with an opportunity to show that you are dealing with your fitness for work issues, but you failed to do so. 381 The 14 December 2007 letter that followed Mr Dorsett's earlier non negative drug test stated in part: ... PWCS is now contemplating terminating your employment ... Frankly, PWCS cannot see how it can have trust and confidence that you will turn up to work in a fit state to safely perform your duties ... In the meantime would you please supply me with a letter setting out the following: (b) Any valid reason for the latest results showing a positive result for cannabinoids; (b) Any reasons as to why PWCS should not bring your employment to an end. 382 Mr Dorsett's termination letter dated 18 December 2007 set out his employment history since 2004 and concluded: As a result, PWCS has lost all trust and confidence in you as an employee in terms of your capacity to attend work in a fit for work state as required or to respect and abide by PWCS' policies, procedures and occupational health and safety requirements. Accordingly, PWCS has made the decision to terminate your employment with pay in lieu of notice and as a result your employment will end immediately. 383 Simply put, Mr Warren maintained Mr Dorsett's refusal to test on 26 June 2007 was clearly his first positive test, consistent with what he had been told during the 2001 AOD Policy training session. He subsequently attended work knowing that he was required to undertake an alcohol test. He had the test and failed. In such circumstances what confidence did the employer have when Mr Dorsett said he was going to do something or was given a warning about an issue? Would he have the capacity to ever fulfil or carry it out? With a second positive recorded against him and in spite of all the warnings that his employment was under the microscope, Mr Dorsett felt compelled to smoke cannabis in December 2007 "because my mates were having a joint". Mr Warren further submitted: ... a person that knows that his job's on the line if he's tested positive for cannabinoids doesn't do that. That displays a disregard for his own safety and a disregard for the safety of his fellow workers. 384 Mr Warren refuted Mr Slevin's case that Mr Dorsett was terminated summarily for serious and lawful misconduct. Rather, he was terminated by payment in lieu of notice. 385 Mr Warren contended the BHP Steel Case relied upon by Mr Slevin was a recommendation in the form of a decision that dealt with what should be contained in an AOD policy, whereas this matter concerned the implementation of a policy introduced by consent some seven years ago. The decisions of the Western Australia Industrial Relations Commission and this Commission in the Stojanovski case also relied upon by Mr Slevin, dealt with an employee dismissed following a first refusal to test and was not relevant to these proceedings as this matter dealt with an employee who, it was asserted, had breached the policy on three occasions in a six month period. For example, in the Stojanovski case, the Full Bench noted: 6. He was asked repeatedly and refused repeatedly to take a drug and alcohol test after behaving in an abusive and allegedly threatening manner towards the supervisors he left the workplace and went home. The employee refused to do a test, he became abusive and was dismissed four days later. 386 Mr Warren noted the submissions put by Mr Slevin concerning dismissal following misconduct and the test in Briginshaw v Briginshaw. He sought to distinguish this matter on the grounds that PWCS dismissed Mr Dorsett by payment in lieu of notice and argued the test in Briginshaw v Briginshaw was relevant to how criminal or otherwise criminal behaviour should be dealt with in a civil jurisdiction. In that regard, he contended that it was more appropriate for the Commission to be guided by the High Court decision in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR at 449 - 450 where Mason CJ, Brennan, Deane and Gaudron JJ stated: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. 387 With reference to the principles enunciated in Natoli, Mr Warren submitted the questions which arose in cases of summary dismissal for misconduct and identified by Sams DP could be readily answered as follows: Firstly, was the conduct alleged against the dismissed employee proven? It's proven to the requisite standard: balance of probabilities. We say it clearly passes that test. Secondly, if the misconduct was proven, did the seriousness of the misconduct justify summary dismissal? It was not summary dismissal in the classic sense; it was dismissal of an employee being paid in lieu of notice. Thirdly, did the conduct constitute a fundamental and wilful repudiation of the contract of employment? ... the third test, therefore, fails to be relevant ... However, we say even if you find that that test is to be considered, we say it was clearly wilful and it was clearly fundamental. By his own admission he knowingly and willingly and wilfully smoked that joint, and clearly he knew the consequences of being caught again. Fourthly, were mitigating factors taken into account? Mr Dorsett in the final interview on 18 December came up with a number of ... reasons for his actions. None of those reasons stated were new reasons ... he didn't say, "Look, I've embarked on a course of drug and alcohol rehabilitation". He didn't say that at all. In fact, that was left until after he was terminated to then come and say "I'm now going to go and do this course". 388 With reference to the BHP Steel case Mr Warren highlighted the observation of Walton J, Vice President in Pasminco Broken Hill Pty Ltd v Construction, Forestry, Mining and Energy Union (NSW Branch) (1997) 92 IR 179 at 182 referred to by the Full Bench at paragraph 15: In a context in which both parties accept the need to regulate drug and alcohol use and there are issues concerning safety at the workplace, the benefits which will derive from obtaining a common approach to any drug and alcohol programme can not be overstated. 389 Mr Warren noted the decision of the Full Bench in the Corrective Services case was a matter where the employee refused to provide the required sample. A first positive result was recorded and accordingly she was terminated for refusing to undertake a drug test. 390 Mr Warren submitted there was no requirement for PWCS to contact Mr Boyle because Mr Dorsett was accompanied by Mr Outram, an experienced Union delegate involved in dealing with matters affecting his members. In addition, a comprehensive and actively negotiated enterprise agreement was in force and did not require the involvement of the Union Secretary. However, Mr Boyle was contacted by Mr Carman shortly after Mr Dorsett was dismissed. 391 The evidence of Mr Carman was that the final decision to terminate Mr Dorsett was not made prior to the meeting on 18 December 2007. He was cross examined at length on this aspect and disputed the assertion made. There was nothing within his Statement that would substantiate the assertion a final decision to terminate Mr Dorsett had been made prior to that meeting. At best, while Mr Davidson's Statement could be read and interpreted that "termination was a consideration", there was simply no way it could be read to say, in Mr Davidson's view, the decision on termination was taken prior to the meeting on 18 December 2007. 392 Mr Warren submitted PWCS had acted properly on 18 December 2007. Mr Dorsett was given a fair and reasonable chance to answer his critics and he failed to do so. PWCS had an AOD Policy in place which was essential to meet its occupational health and safety obligations under the Act and where an employee offender was identified, it was obliged to pursue that Policy with vigour to ensure that employee "does not affect the safety at work". 393 In reviewing PWCS' conduct leading up to 18 December 2007, Mr Warren submitted the Commission was required to make an assessment whether Mr Dorsett's dismissal was harsh, unjust or unreasonable. Clearly, Mr Dorsett had not enrolled in a drug and alcohol course in say October or November or shortly after his dismissal. He had also failed to convince or "come up with some other positive reason" to attract the trust of PWCS. In that regard, all Mr Dorsett could say after the 2 July 2007 incident was, "Oh, you won't be seeing me again" and of course the fact that they did, clearly represented a reluctance on the part of Mr Dorsett to accept he was doing anything wrong. In fact, it was not until he saw Mr Davidson that he began to understand the consequences of his actions. 394 In assessing whether the dismissal was harsh, unjust or unreasonable, the Commission should be mindful that from July 2007, PWCS began asking Mr Dorsett: If you've got any problems, let us know and we'll deal with them. What additional information do you want to tell us? (his response) ... nothing ... we say that is indicative of a person who just simply did not appreciate and did not accept that their actions were going to lead to termination and that their actions were placing the safety of himself and his fellow workers at risk. 395 In summary, Mr Warren stated Mr Dorsett's first refusal to test was not in dispute as he had left the site. There was no dispute that he blew over the alcohol limit on 1 July 2007 nor that in early December his drug test results had showed a positive result for cannabinoids. In response to seeking to establish reasons for his behaviour, PWCS was not given any comfort or reason other than "bad timing". In that regard, Mr Warren stated: Well, bad timing is not a sufficient reason when someone is hurt, maimed or killed as a result of an action of a person under the influence of alcohol or other drugs, or if the employer suspects they might be or if there is a risk ... that they might be, they have to positively search out in accordance with the jurisprudence, track down and ensure that employees are not placed at risk, and that's what the Alcohol and Other Drug Policy does, to the extent that it can. 396 Mr Warren observed that if the Commission was to find against PWCS insofar as its conduct on 18 December 2007 was concerned, for example, "procedurally somewhere the company tripped up" or that for certain reasons Mr Dorsett's dismissal was harsh but not unjust, it would be an inappropriate and unreasonable imposition to order a person who had offended against the AOD Policy be re-employed or reinstated and placed on some regime of testing. 397 It was Mr Carman's evidence that the only safe regime would be daily testing which would represent an unreasonable impost placed on PWCS and the question concerning the duration of such testing before a person could be declared fit to recommence normal work would also require consideration. In that regard, Mr Warren stated the events of 2004, leaving site in 2005, refusing a test in 2007 and testing positive for alcohol and drugs in 2007 represented "too much of a risk" and an unreasonable impost where supervisors would be required to attend daily drug and alcohol gatehouse testings. Accordingly, reinstatement or re-employment would be impracticable 398 Mr Warren concluded the primary position of PWCS in this matter was that the application should be dismissed. 399 In reply, Mr Slevin disputed PWCS' position Mr Dorsett was not summarily dismissed because he was paid in lieu of notice. In that regard, he referred to the decision in Perfection Dairies Pty Ltd v Finn where the Full Bench said the onus of proving an allegation of misconduct leading to termination by summary means, notice or payment in lieu of notice remained with the party alleging the misconduct: 73 In the present case, the respondent was dismissed for "wilful misconduct which results in immediate dismissal". The onus of proving an allegation of misconduct leading to termination of employment, regardless of whether the dismissal was summary, or by notice or payment in lieu of notice, is on the party alleging misconduct: Pastrycooks, Biscuit Makers & Flour and Sugar Goods Workers Union (NSW) v Gartrell White (No 3) (1990) 35 IR 70 at 83; Franklins Ltd v Webb (1997) 72 IR 257 at 261. 400 Mr Slevin submitted Mr Dorsett's dismissal for misconduct was summary in nature because it was immediate. While industrial instruments provided for termination by notice or payment in lieu, that payment did not derogate from the reason for the dismissal and if the reason for the dismissal was misconduct and if the nature of the dismissal was that it was immediate, then summary dismissal had occurred. Payments made in lieu of notice or otherwise by the employer did not alter the factual circumstances underpinning the termination of the employment. 401 Mr Slevin referred to the decision of Deputy President Hamilton of the Australian Industrial Relations Commission in Mr Peter Kidd v Linfox Australia Pty Ltd [2008] AIRC 398, where the employer argued an employee dismissed for breach of the company's AOD Policy should not be re-employed or reinstated on occupational health and safety grounds: [68] Linfox submitted that to not terminate Mr Kidd would put at risk the integrity of its drug and alcohol policy, because employees would know that they could refuse a test and not be terminated, However, if Linfox had proved by satisfactory evidence that Mr Kidd had been properly trained in the 2006 policy, or knew about its details, or had proved that the policy authorised the random test, my decision may have been very different to the one today. Employees cannot refuse to take a drug and alcohol test properly authorised under an appropriate policy when they are properly trained in it. So much is clear from Woolworths. The circumstances revealed by this matter may be isolated and unusual, the sort of problem that occasionally occurs in every well run organisation, and not inconsistent with the good record on safety that Linfox was able to outline to me during proceedings. For the sake of fairness, it is a matter of record that the TWU made a different assessment. [69] On balance I am unable to find that there was a valid reason for termination of employment. In the alternative, there was a valid reason for termination, namely breach of the directions issued by Mr.Bunting and Mr.Ling, but those breaches in the circumstances are not a particularly strong or overwhelming valid reason for termination. 402 Mr Slevin contended the various alcohol and drug cases referred to in these proceedings identified the need to balance the rights of employees to be treated fairly in the workplace concerning termination of employment and the rights of employers to meet their occupational health and safety obligations. In the circumstances of Mr Dorsett, the AOD Policy simply was not applied. 403 Moreover, there was no breach in relation to the Rail Safety Act and Mr Dorsett's 0.22 percent BAC test confirmed that he could not work on the day in question. It was a low reading and should not have led PWCS to reach the conclusion it now had "a collection of positives" against Mr Dorsett. A warning was a more appropriate action to take. There was no evidence Mr Dorsett was addicted to the use of cannabis and that was not relied upon as a ground for dismissal. Mr Johnson knew about Mr Dorsett's casual use of the substance from Mr Dove but failed to do anything about it. Similarly, the events of 2005 where Mr Dorsett said there were two occasions where he was absent for the test and there was no disciplinary response, were not part of the reasons for termination. 404 In mitigation, Mr Slevin said Mr Dorsett had sought the assistance of Dr Scott on 19 December 2007 who suggested he enter into a course of counselling. A letter and doctor's certificate were provided to that effect. He went to see Mr Davidson the next day and sought reinstatement. Mr Davidson acknowledged he saw the doctor's letter on 20 December 2007. Accordingly, Mr Dorsett had foreshadowed to PWCS he was going to do that course. 405 In the conciliation proceedings during January 2008, Mr Boyle represented Mr Dorsett and provided information concerning his personal circumstances related to his brother's illness. By mid-July 2007, he was aware of the treatment required and began assisting him to undertake specialist treatment. There was also the breakdown in the relationship with his wife. Simultaneously, work related problems followed his 1 July 2007 positive test and snowballed through to his dismissal. 406 In response, Mr Warren observed the decision in Kidd v Linfox dealt with a matter of first refusal to test and not a series of alleged offences. Furthermore, it was consideration under a different occupational health and safety law. Moreover, the decision in Perfection Dairies Pty Ltd v Finn was a case that dealt with summary dismissal whereas Mr Dorsett was not terminated for misconduct at all and referred to the letter of termination that said: PWCS has lost all trust and confidence in you as an employee in terms of your capacity to return to work in a fit work stage required or to respect and abide by PWCS's policies, procedures or occupational health and safety requirements. Accordingly, PWCS has made the decision to terminate your employment with pay in lieu of notice. 407 With reference to the proposition articulated by Mr Warren that Mr Dorsett was not terminated for misconduct, Mr Slevin stated: It just beggars belief that the last submission made is that this is not a misconduct case. It's not a performance case, it's a misconduct. It's about the conduct of Mr Dorsett and it cannot be regarded as figure other than a misconduct case in my submission. CONSIDERATION 408 PWCS is required to provide a safe place and system of work. It asserts Mr Dorsett was dismissed on the grounds it had lost the trust and confidence that he would turn up to work in a fit state to safely perform his duties. He was paid an amount of salary in lieu of notice. The Union's dispute notification conveniently summarised the issues in dispute as follows: The MUA and PWCS are presently in dispute concerning the purported termination of an MUA member and PWCS employee, Mr Brett Dorsett, for allegedly breaching PWCS Policy, Procedures and OH&S Requirements. PWCS further allege that they no longer retain trust and confidence in Mr Dorsett as an employee. They have purported to terminate his employment effective 18 December 2007 and have indicated an intention to make payment of salary in lieu of notice. 409 For its part the Union argued in these proceedings that Mr Dorsett was dismissed for misconduct under the PWCS AOD Policy and Procedure. He was also dismissed summarily in the sense that he was not permitted to work again after testing positive for other drugs on 8 December 2007. 410 Notwithstanding the fact that the AOD Policy and Procedure may not have been strictly applied as alleged by the Union, it was PWCS' case that Mr Dorsett's cumulative conduct in relation to three incidents between June and December 2007 supported the proposition his dismissal by payment in lieu of notice was lawful. Shortly put, PWCS contended Mr Dorsett's conduct and the risk that he would attend for duty in an unfit state placing himself, others and PWCS' plant and heavy machinery at risk, warranted his dismissal. 411 The relevant industrial instrument is the PWCS Limited Enterprise Agreement 2007. Clause 11 relevantly provides that termination can be effected by notice to the employee or by payment in lieu of notice. In addition PWCS has the right to dismiss an employee for refusal of duty or serious and wilful misconduct. 412 Immediately prior to his dismissal, Mr Dorsett was engaged as an Operator Level 2 and was also qualified to work as a Control Room Operator and a Wharf Foreman. He was also a member of the PWCS Occupational Health and Safety Committee. 413 PWCS is obliged to take reasonable care to provide all employees with a safe place of work and safe systems of work at all times. The AOD Policy and Procedure are inseparable from that obligation. Random testing for alcohol and drugs legitimately forms part of that Policy where the risk to safety posed by operators of heavy plant and equipment impaired by alcohol or drugs is foreseeable and such conduct must be prevented. In O'Connor v Commissioner for Government Transport (1954) 100 CLR 226, a negligence case that followed the death of a plumber engaged in the repair of an awning, the High Court held at [4]: The defendant as employer was of course under a duty, by his servants and agents, to take reasonable care for the safety of the deceased by providing proper and adequate means of carrying out his work without unnecessary risk, by warning him of unusual or unexpected risks, and by instructing him in the performance of his work where instructions might reasonably be thought to be required to secure him from danger of injury. 414 In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, a negligence case concerning damages following a workplace injury, the majority decision (Mason, Wilson and Dawson JJ) at [15] held an employer had a duty to employees to take reasonable care to provide a safe system of work to avoid exposing them to unnecessary risks of injury. The Court found that the risk of injury was foreseeable and the question remained as to whether the employer took reasonable care to minimise that risk, despite an instruction to the employee concerning the safe method of carrying out the work. 415 Section 8 of the Occupational Health & Safety Act 2000 imposes a non-delegable duty on employers to "ensure the health, safety and welfare at work of all employees of the employer". A breach of that duty is a criminal offence. In WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Limited (1998) 82 IR 80 at 85, the observations of Hill J are indicative of the breadth of duty imposed on employers: This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. (emphasis added) 416 Mr Warren submitted that PWCS had an obligation to be proactive in seeking out risks to safety and taking appropriate measures to obviate those risks. While this requirement has undoubted relevance in the context of an occupational health and safety prosecution, its application does not derogate from the imperative that, at all times, PWCS must have a safe system of work in place for all of its operations and be proactive in identifying and taking measures to minimise or eliminate risks to safety. In support of PWCS' commitment to safety, high priority is given to the creation of a safe working environment through the elimination of the hazards associated with inappropriate alcohol and other drug consumption. In that regard, PWCS provides a range of preventative, educational and rehabilitative measures to overcome problems that could impair an individual's safety and performance at work. On balance, those employees who are deemed unfit for work as a result of alcohol or drug use are managed in a fair constructive manner. 417 PWCS is firmly of the view that an effective AOD Policy is essential to maintaining safety within the confines of its Carrington and Kooragang terminal operations, given the risks to safety posed by heavy plant and equipment. In this case, the evidence before the Commission established that the position adopted by PWCS was motivated by the concern to maximise safety of employees, plant and equipment and comply with its statutory duties in relation to safety. 418 The Occupational Health and Safety Act imposes stringent requirements and obligations in a number of different capacities in order to secure and promote the health, safety and welfare of people at work. The objects of the Act set out in s 3 include the following: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, … e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, … 419 The various duties upon employers are set out under s 8 of the Act: Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 420 Section 8 imposes an absolute liability on employers who "must ensure" the health, safety and welfare of employees at work is consistent with the Objects set out in s 3. The plain and ordinary meaning of the word "ensure" is to guarantee or make certain: Drake Personnel Ltd v WorkCover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 432 at 449. Section 20 of the Act also imposes obligations on employees whilst at work: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2) An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that is imposed in the interests of health, safety and welfare on the employer or any other person. 421 The commitment of PWCS and its Unions to safety is very strong. In a Statement published on 13 February 2007 in relation to the then recently completed PWCS $160 million 'Project 3D' Kooragang Coal Terminal Expansion Project, ([2007] NSWIRComm 1012) the Commission as presently constituted stated: 36 In submissions, the parties informed the Commission that in addition to setting specific construction goals, PWCS had also set down strict guidelines concerning all aspects of project safety management consistent with its commitment to the occupational health and safety of its own employees and those of contractors working within its coal handling operations. 37 The Commission has observed that the client's expectations insofar as safety was concerned were articulated in a very clear and unequivocal "Message to Employees" contained in the December 2005 Newsletter published shortly after the commencement of construction work where PWCS General Manager, Mr G Davidson stated: The recent launch of project 3D underlines the importance of PWCS Kooragang Operations to the success of the Hunter Valley coal system. The facilities at the Newcastle Port provide the platform for successful delivery of coal to the rest of the world and this expansion will ensure that the continuing growth in demand can be met. With demand increasing rapidly we need to ensure that the expansion is completed in a timely manner. But this cannot be at the expense of your safety. Production never comes before your safety at PWCS. If an activity carries an unacceptable level of risk, you have been authorised to stop what you are doing and stay stopped until the risk is adequately addressed. Work with your team mates and supervisors to develop safe methods before restarting. We do not operate systems that carry an unacceptable risk of hurting somebody. We won't expose our workforce to risk which we would find unacceptable for our family, friends and colleagues. (emphasis added) 422 A number of Unions party to the industrial instrument that governed construction work on the Expansion Project are also party to the PWCS Limited Enterprise Agreement 2007. 423 The purpose of the AOD Policy introduced during 2001 and formally set out in a document tendered in proceedings as MFI 2 - PE-60-27 Alcohol and Other Drugs Policy was: To provide guidelines which will ensure people are fit for work whilst at work in PWCS workplaces. 424 The Policy was introduced with the support of all Unions and focused on the need for employees to "behave in a responsible manner and present ... for work in a fit and healthy state". It is clear within the Policy an outright refusal to test is a breach of the Policy and as such is treated the same as a positive test result. 425 The AOD Procedure was formally set out in a document tendered in proceedings as MFI 3 - PE-60-27P Alcohol and Other Drugs Procedure. The purpose of the Procedure "is to provide guidelines for the application of the Policy". Under "Definitions", the Procedure states a refusal to undertake a test "as per the PWCS Alcohol and Other Drugs Policy and Procedure" is treated as a positive result and the implications of such refusal are clearly articulated. 426 The Procedure also encourages employees who believe their fitness for work may be affected by alcohol or other drugs to self test prior to commencing work "by using the drug test kit / breathalyser at the Gatehouse entrances to PWCS." Accordingly, pursuant to the Procedure, the opportunity to voluntarily self test passes once an employee has commenced work. Similarly, the employer is entitled to presume that once an employee commences work, the employee is fit for work and there is no immediate impediment to the continuation of that state of fitness. That is not to say an employee will not fall ill during the ordinary course of a shift. Rather, it suggests that the propensity of that occurrence is low as is the probability of an employee falling ill simultaneously upon receiving an instruction to take a test as asserted by Mr Dorsett. 427 Mr Slevin referred to a number of AOD policy cases to support the proposition that PWCS was obliged to ensure that its Policy as stated and agreed to by the Union was followed. He contended that it had not done so. Mr Dorsett's actions on 26 June 2007 did not constitute an outright refusal or a positive result as defined in the AOD Policy and Procedure. Mr Johnson had agreed in cross examination that the only Policy requirement met was that Mr Dorsett was not allowed to return to work until he had provided an acceptable test result. 428 Moreover, both Mr Dove and Mr Johnson agreed in cross examination that the subsequent alcohol test undertaken at the gatehouse on 1 July 2007 should have been recorded as a "Return to Work" result. It was not a further positive result for the purpose of the AOD Procedure. Rather, the test for other drugs on 8 December 2007, a random test conducted in accordance with the AOD Policy and Procedure, was a first positive test under the Procedure and should have been treated as such. A number of largely technical deficiencies concerning the application of the AOD Policy and Procedure to Mr Dorsett were drawn in cross examination. 429 The AOD Policy and Procedure is, in my view, intended to be read, understood, used and applied on a daily basis to avert the risk of injury within a potentially dangerous heavy industry environment. Despite some policy imperfections and a degree of ambiguity in the words used, Mr Warren contended that in relation to Mr Dorsett leaving site on 26 June 2007, the definition of a second positive result was crystal clear at the time and "this position was put in the warning letter dated 2 July 2007 and accepted by Mr Dorsett and his Union". 430 It was Mr Dorsett's evidence that he knew employees were required to attend for work "clean of cannabis and not under the influence of alcohol irrespective of whether they had a single day off or had been on holidays for a week or more". Whilst vague concerning the 2001 AOD Policy and Procedure training, Mr Dorsett accepted the proposition that Mr Sears' presentation contained a slide stating "refusal to undergo testing has a similar consequence to recording a positive test result". 431 Mr Dorsett confirmed he had left site without his supervisor's permission to obtain a crib in late 2005 or early 2006 when he knew that he was required to undertake an AOD test. He denied Mr Dove told him on 26 June 2007 that if he did not do the required test before going home ill, it would be classed as a positive result. In the event Mr Dove failed to inform him of those consequences under the AOD Policy and Procedure, the probability that Mr Dorsett knew the consequences of his actions or at least the gist of what might occur is, in my view and based on the evidence, reasonably high. 432 It was Ms Curry's evidence that the test records show Mr Dorsett was a "no show" for other drugs testing required on 15 September and 2 December 2005 and in respect of the 17 November 2005 scheduled test, no sample was provided to Frontline. 433 Mr Dorsett confirmed Mr Johnson's warning letter of 2 July 2007 stated he would be subject to two random alcohol and other drug tests within the next six months and if a second breach occurred within the next 12 months further "disciplinary action would occur up to and including termination of employment". His explanation for consuming cannabis in December 2007 was that he "felt socially compelled to join in". Mr Dorsett's defence to the alcohol breach in December 2007 was that he thought he would test under the 0.2 percent BAC limit. 434 Mr Dorsett's evidence concerning Mr Sears' recommendation that he take some self testing kits on his golfing holiday supports the proposition that he proposed to smoke cannabis during that trip away. It also suggests he was also willing to risk breaching the AOD Policy upon his return and attend work where he could be required to work in the control room or to operate complex machinery including the coal stacker, reclaimer and ship loader. 435 It is clear on the evidence of Mr Dorsett and others that Frontline conducted regular testing of PWCS employees engaged at the Kooragang terminal. The regularity and profile of testing suggests PWCS has made sustained efforts since 2001 to make employees aware of its Policy and the consequences of breaching that Policy. Despite those efforts and repeated warnings Mr Dorsett breached the intent of the Policy on a number of occasions. The evidence also highlights that given the availability of Employee Assistance Program resources, Mr Dorsett's response to the direction to prepare a personal rehabilitation plan for alcohol was perhaps tardy, rather than "cavalier" as alleged by PWCS. It is clear on the evidence that Mr Berry was difficult to contact and neither Mr Johnson nor Mr Dove were aware of the gravity of that problem. Importantly, at the time Mr Dorsett did not believe he may be experiencing problems related to the use of alcohol and other drugs. 436 It is also clear on the material before the Commission, particularly the various warning letters and associated meetings, that Mr Dorsett was on notice that his job was at risk. The contention that Mr Dorsett was unaware that his job was on the line until Mr Johnson's letter dated 14 December and the meeting with Mr Carman on 18 December 2007 lacks credit. 437 With regard to Mr Slevin's contention that Mr Carman had already decided to dismiss Mr Dorsett prior to the meeting on 18 December, I have formed the view that there is insufficient evidence to substantiate the probability of that occurrence. Similarly, Mr Davidson's evidence cannot be taken to support the proposition that decision was made as alleged. 438 The Commission notes that the decision in Kidd v Linfox referred to by Mr Slevin in submissions is subject to appeal. 439 Mr Slevin submitted that in cases where misconduct had led to dismissal it was also well established that the principle in Briginshaw should be applied. More recently, the Full Bench in New South Wales Nurses' Association (on behalf of Colin Prior) considered who should bear the evidentiary onus in unfair dismissal proceedings and the standard of proof that ought to be applied. The Full Bench upheld the principle that the evidentiary burden in a case of serious misconduct shifted to the respondent employer (see Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union v Gartrell White (No 3)) and subsequently affirmed the dicta set out in Briginshaw that proof on the balance of probabilities should apply. 440 In Day v Lumley Life Limited (1999) 90 IR 70 at 71, Hungerford J described the employment relationship as a serious contractual relationship involving rights and obligations on both parties: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way which permits one party, here the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith. 441 The High Court considered the ordinary relationship of the employer and employee at common law in Concut Pty Ltd v Worrell and Another (2000) 103 IR 160 where at 172, Kirby J stated: The ordinary relationship of employer and employee at common law is one importing implied duties of loyalty, honesty, confidentiality and mutual trust. At common law: [c]onduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal. ... [T]he conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 442 Within the Australian context conduct which is incompatible with the fulfilment of an employee's duty to the employer or involves opposition or conflict between his interest and the duty to his employer or, impedes the faithful performance of his obligations or, is destructive of the necessary confidence between employer and employee, is a ground for termination of employment. The conduct of the employee must itself involve the incompatibility, conflict or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. In Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81 the High Court referred to the "necessary confidence between employer and employee". 443 In Perkins v Grace Worldwide (1997) 72 IR 18, the Full Bench of the Industrial Relations Court found the implied term of trust and confidence was imported into Australian employment contracts. At 191 the Court stated: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Ltd (unreported, Industrial Relations Court of Australia, Full Court, No 606/96, 13 December 1996). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 at 81-82 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. 444 PWCS claim that Mr Dorsett's contract of employment was subject to an implied term of trust and confidence and that there was a breach of that implied term. The term of mutual trust and confidence has been applied regularly within employment contracts in the United Kingdom. In Woods v WM Car Services (Peterborough) Limited [1981] IRLR 347, a decision of the Employment Appeal Tribunal, Browne-Wilkinson J stated: [17] In our view it is clearly established that there is implied in a contract of employment a term that the employers will not, without reasonable and proper cause, conduct themselves in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84. 445 More recently, in Russell v The Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2008] NSWCA 217, the New South Wales Court of Appeal held there may be an implied term of good faith, mutual trust and confidence in an employment contract, but its precise scope is unclear. Campbell JA agreed with the majority and observed: [73]It is clear that there can be an implied term in a contract of employment requiring an employee to exercise good faith in certain circumstances (eg Del Casale & Ors v Artedomus (Aust) Pty Limited [2007] NSWCA 172; (2007) 73 IPR 326 at [32]–[34], [76]–[100] and cases there cited)... 446 The obligations that fall upon the parties to the employment contract, including the obligation of mutual trust and confidence, represent an implied warranty that the employee shall exercise diligence, reasonable care and skill when at work. Those requirements are also an inherent requirement of the job. It would seem logical therefore that an "inherent requirement" of Mr Dorsett's position was to perform the duties of his employment without unreasonable risk to his own health and safety or that of others and comply with the PWCS AOD Policy and Procedure. 447 On the material before the Commission, I believe there are strong grounds to support the proposition that by his conduct, Mr Dorsett breached the obligation of mutual trust and confidence owed to PWCS. In the context of the AOD Policy and Procedure and the evidence brought in these proceedings, the conduct alleged cannot be regarded as minor nor trivial. 448 In Hudson v Ridge Manufacturing Co Ltd [1957] 2 QB 348 at 350, Streatfeild J said: It is the duty of employers, for the safety of their employees, to have reasonably safe plant and machinery. It is their duty to have premises which are similarly reasonably safe. It is their duty to have a reasonably safe system of work. It is their duty to employ reasonably competent fellow workmen. All of those duties exist at common law for the safety of the workmen, and if, for instance, it is found that a piece of plant or part of the premises is not reasonably safe, it is the duty of the employers to cure it, to make it safe and to remove that source of danger. 449 Given the fundamental "duty to employ reasonably competent fellow workmen" PWCS believed it was entitled to remove the source of danger to the safety of employees, plant and machinery. The obligation of trust and confidence is both mutual and reciprocal. 450 In the event I am wrong in finding Mr Dorsett was dismissed on the grounds that PWCS had lost all trust and confidence in him as an employee to attend work in a fit state and abide by PWCS' policies, procedures and occupational health and safety requirements; and instead, was dismissed for reasons and allegations of misconduct, as pressed in these proceedings by Mr Slevin, the onus rests upon PWCS to make out those reasons and allegations to the civil standard of proof: see Briginshaw v Briginshaw. In consideration of all the material currently before the Commission in this matter, that case has been made out. 451 Mr Slevin has sought to demonstrate Mr Dorsett's dismissal lacked procedural fairness particularly in relation to the application of the AOD Policy and Procedure. In that regard, I am mindful of the observations of the Full Bench in the decision of Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 where at 389 the Full Bench said: We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. 452 A dismissal may be either harsh, unreasonable or unjust or, a combination thereof. This approach was the subject of consideration in Outboard World Pty Limited T/as Budget Waste Control (Sydney) v Muir (1993) 51 IR 167 at 183 where the Full Bench observed: We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'. It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power. In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made. 453 In my view, the conduct alleged in this matter would give rise to an employee's dismissal irrespective of whether the employer had or in the alternative, did not have an AOD Policy in place. However, once a policy is put in place, the employer (and relevant employees) are bound by its terms. Moreover, notwithstanding the gravity of Mr Dorsett's conduct between June and December 2007, it is clear on the evidence that PWCS did not apply the AOD Policy and Procedure in a strict, line by line fashion. Accordingly, I find that Mr Dorsett's dismissal was harsh. 454 Mr Slevin submitted in the event the Commission found Mr Dorsett's dismissal was harsh, unjust or unreasonable it should order reinstatement. The Commission is required to exercise caution in considering a claim that the employer cannot re-employ or reinstate the dismissed employee as that proposition has the capacity to inappropriately frustrate the primary relief provided by the Act. 455 Having considered the extensive evidence and submissions put before the Commission, it is clear in my mind that in leaving the Kooragang terminal site on 26 June 2007 prior to taking the required AOD test, Mr Dorsett made a deliberate attempt to circumvent the Policy and devalue its utility to keep he and his fellow employees safe at all times. The subsequent chain of events surrounding the 1 July 2007 non negative test for alcohol and the 8 December 2007 non negative drug test simply compounded the gravity of his conduct and when that conduct is viewed collectively, leads me to conclude that the harshness of Mr Dorsett's dismissal must sit at the lower end of the scale. 456 Mr Warren submitted reinstatement should not be ordered because the relationship of trust, confidence and good faith between Mr Dorsett and PWCS was damaged beyond repair; his conduct was serious and reinstatement would have a detrimental effect on the safety and welfare of other employees and himself. 457 In Perkins, the Court was directed to the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable. The impracticability of reinstatement predicated on an employer's loss of trust and confidence in a dismissed employee must be soundly and rationally based. The Court observed it was important in the employment relationship "that there be sufficient trust to make the relationship viable and productive". 458 In Metropolitan Meat Industry Board v Australian Meat Industry Employees' Union, New South Wales Branch (1973) AR 231 at 233 Watson J referred to circumstances surrounding the termination of the employment relationship, where a dismissal, which might otherwise be justified, was nevertheless, harsh. Factors which his Honour found were relevant to the finding included the presence of mitigating circumstances, as well as past good conduct. 459 Mr Slevin submitted Mr Dorsett had explained his personal domestic problems and those associated with his brother's cancer that occurred between July and December 2007. By way of observation, those matters were not pressed in these proceedings with the vigour enunciated by Mr Boyle and Mr Outram during conciliation. 460 Mr Dorsett flatly dismissed the concern of PWCS that there may be underlying problems related to his conduct between June and December 2007 and it was not until his dismissal that he finally realised the consequences of his actions. 461 Notwithstanding the impediments concerning the application of the AOD Policy and Procedure, Mr Dorsett has breached his obligation not to attend for work under the influence of alcohol or other drugs. It is clear on the evidence that Mr Dorsett's conduct between June and December 2007 struck at the heart of the employment relationship and that conduct was totally inconsistent with his common law duty of trust and confidence. That duty implies mutual obligation. The observations of Dixon and McTiernan JJ in Blyth Chemicals Limited v Bushnell (1933) 49 CLR 66 at 81-82 are relevant to that consideration: Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal ( Boston Deep Sea Fishing and Ice Co. v. Ansell (1888) 39 Ch. D. 339, at pp. 357-8 and 362-4; English and Australian Copper Co. v. Johnson (1911) 13 CLR 490 ; Shepherd v. Felt and Textiles of Australia Ltd (1931) 45 CLR 359). But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence. An actual repugnance between his acts and his relationship must be found. It is not enough that ground for uneasiness as to its future conduct arises. 462 At common law an employer has a duty to prevent accidents in the workplace. In McLean v Tedman (1984) 155 CLR 306 at 313 Mason, Wilson, Brennan and Dawson JJ affirmed that duty: The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming, The Law of Torts (6th ed. 1983), pp.480-481). And in deciding whether an employer has discharged his common law obligation to his employees the Court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands. 463 In my view, it logically follows that the obligation upon PWCS to provide and maintain a safe system of work and prevent accidents affords it the right to dismiss an employee who has repeatedly or deliberately or seriously breached a policy established with the support of all site Unions to ensure a safe system of work. The capacity for Mr Dorsett to leave site without permission as he did on three separate occasions, two prior to 2007 and one during the course of that year and elude random testing for alcohol and other drugs has serious implications for the maintenance of safety at the Kooragang terminal. 464 On balance, the seriousness of that obligation when viewed together with Mr Dorsett's most recent employment history, variously described within the extensive evidence and submissions brought in these proceedings, outweighs the procedural deficiencies concerning the strict application of the AOD Policy and mitigating factors such as his length of service, personal circumstances and the decision to seek counselling post dismissal, which might otherwise have counted in his favour. 465 Mr Dorsett's conduct through the course of June to December 2007 was, on balance, profound conduct that makes it impracticable to reinstate or re-employ him. Having considered all of the material and the submissions of the parties, I have formed the view that reinstatement is impracticable. There is, unfortunately, no foundation for the restoration of the employment relationship. 466 In the circumstances I make the following orders: ORDERS Pursuant to s 89(5) of the Industrial Relations Act 1996 the Commission orders that: 1. The respondent, Port Waratah Coal Services Limited shall pay Mr Brett Dorsett an amount of $7000. 2. The amount in order 1 shall be paid within 28 days. 3. These proceedings are now concluded. 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.