Industrial Relations Commission of New South Wales CITATION: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of O'Hara and Griffith City Council [2006] NSWIRComm 1102 APPLICANT New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Shane O'Hara) PARTIES: RESPONDENT Griffith City Council FILE NUMBER(S): 2917 of 2005 CORAM: Bishop C Termination of employment - dismissal for misconduct of plumber - DUI conviction - loss of driver's licence 12 months - third conviction - 17 years service - previously kept on by council - on-call - issues of when and where alcohol consumed - council policies and practices relevant - conflicting police evidence - whether in all circumstances penalty too harsh - reinstatement sought - but with no retrospectivity. CATCHWORDS: Held termination too harsh in circumstances - issues with council's alcohol policy and on-call practices - no intent by applicant to drive whilst over limit - extenuating circumstances - reinstatement ordered with final warning - subject to regaining licence - period off work effectively a suspension - no backpay ordered - continuity of service - orders made. LEGISLATION CITED: Industrial Relations Act 1996 Antonakopoulos v State Bank (1999) 91 IR 385 Bankstown City Council V Paris (1999) 93 IR 209 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 Busways v Johnson (1994) 55 IR 255 Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 Hollingsworth v Commission of Police (No2) (1999) 47 NSWLR 151 John Lysaght (Australia) Limited and Federated Ironworkers" Association of Australia, NSW Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) Lane v Arrowcrest Group (1990) 99 ALR 45 Little v Commissioner of Police (No 2) (2002) NSWIRComm 52 Lorenzato v Sydney Water Corporation (2002) NSWIRComm 277 Mastroianni v Telstra Corporation (2000) IRComm A 240 (9 March 2000) CASES CITED: NSW Sales Representatives & Commercial Travellers" Guild v Berge Paints (1984) 9 IR 273. New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade (2005) NSWIRComm 440 Pastrycooks, Biscuit Makers and Flour & Sugar Goods Workers Union (NSW) v Gartrell White (no3) 1990 35 IR 70 Outboard World v Muir (1993) 51 IR 167 Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186 Rapp v Wauchope RSL Club Ltd 81 IR 116 Retail Traders Assn' (NSW) v Shop Distributive & Allied Empoyees Assn (NSW) (1990) 36 IR 38 Sams v Contact Point International Pty Ltd (2001) NSWIRComm 18 St Vincent's Hospital Sydney Ltd v Harris (1998) 81 IR 173 State of NSW v Seedsman (2000) 217 ALR 583 TWU o/b Ferguson v Linfox (2004) NSWIRComm 1116 Wells v Commissioner of Police (2000) 100 IR 106 HEARING DATES: 06/03/2006, 07/03/2006, 24/04/2006 DATE OF JUDGMENT: 06/23/2006 Mr J Klower Industrial Officer NSW Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union LEGAL REPRESENTATIVES: Mr D Gardner Solicitor Maddocks Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BISHOP C 23 June 2006 Matter No IRC 2917 of 2005 New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (on behalf of Shane Gregory O'Hara) and Griffith City Council Application by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union on behalf of its member Shane Gregory O'Hara re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1102 1 This is an application by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union ("the USU") made on behalf of Shane Gregory O'Hara against Griffith City Council ("the Council") for a remedy pursuant to S.84 of the Industrial Relations Act,1996. Mr O'Hara was dismissed from his position of Journeyman/Plumber with the Council on the 27 May 2005. He sought reinstatement or re-employment with Council. 2 The matter was listed for conciliation and directions before me in Griffith on the 23 June 2005 at which time conciliation took place. The parties were directed to confer and the matter set down for report back in Sydney on the 11 July 2005. Further conciliation was subsequently held in Griffith on the 16 August 2005. As no settlement could be reached, directions as to the filing and exchange of witness statements were issued on the 6 September 2005. 3 The matter was listed for hearing in Griffith on 6 and 7 March 2006. The taking of evidence was finalised on these days. The hearing concluded with the submissions of the parties in Sydney on the 24 April 2006. 4 At the hearing Mr Klower with Mr Fayle, Officials of the USU, appeared on behalf of Mr O'Hara and called the following witnesses to give evidence:- Shane O'Hara - applicant (Exhibit 1) Malcolm Vaughn-Appel - Tradesman's Assistant Griffith City Council (Exhibit 4) Paul Snaidero - Company Director (Exhibit 5) 5 Mr Gardner, Solicitor, with Ms Wilson, appeared on behalf of Council and called the following witnesses to give evidence:- John Tyrrell - Water Supply Co-ordinator Griffith City Council (Exhibit 8) Ian McKinley - Manager, Organisational Development Griffith City Council (Exhibit 9) Peter Brooks - General Manager Griffith City Council (Exhibit 13) Casey Ankers - Community Cultural Development Officer Griffith City Council (Exhibit 14) David Humphreys - Plant Operator Griffith City Council (Exhibit 15) Note: Mr Humphreys was unavailable to give evidence due to illness. His Affidavit was admitted without objection. Senior Constable Wilson - Griffith LAC Highway Patrol (on subpoena) Senior Constable Mooney - Griffith LAC Highway Patrol (on subpoena) Background and Chronology- based on the evidence filed and the transcript of proceedings. 6 Mr O'Hara is an Aboriginal man aged 37. He had 17 years service with Council having commenced as an Apprentice Plumber in February 1988. He completed his apprenticeship and moved through various classifications becoming a Journeyman Plumber in 1996. He undertook training and gained various qualifications during his employment (Exhibit 12). 7 As part of his position he was required to work overtime and be on call when necessary. He was provided with a mobile phone whilst on call. Mr O'Hara earnt $780 per week and received an additional $150 per week when he was on call. He also had the use of a Council truck. 8 Mr O'Hara was on call on Saturday 21 May 2005 and was called out at approximately 8.30am by Mr Brian Keys of Council to attend a burst water main at Bowditch Place ("the site") which was at least 20 kilometres from his home. Bowditch Place was also approximately 5 kilometres from the Council Depot. 9 The previous night Mr O'Hara and Mr Vaughn-Appel consumed a quantity of alcohol at Mr O'Hara's home in Nericon before going to bed at about 12 midnight. No food was consumed. 10 Mr Vaughn-Appel was not on call but attended the burst water main with Mr O'Hara and worked on the site all day. The other on-call plumber was Trevor Weeks. 11 Mr Vaughn-Appel had lost his licence due to a DUI offence in September 2004 and could not drive a Council vehicle and was driven to job sites by other Council employees including Mr O'Hara. 12 Mr O'Hara left the site at approximately 5 pm when the burst water main had been fixed and went to his ex-wife's home (the family residence) about a 1-2 kilometre drive away to go to the toilet. He had one alcoholic drink (a can of bourbon and coke) whilst there. On returning to the site the water main had again "let go" and further repair work was carried out and completed at about 7.45pm. 13 Mr O'Hara and Mr Vaughn-Appel returned to the Council yard to return signs and equipment. On the way there they stopped and purchased a six pack of beer at a local Hotel drive-in which was consumed at the yard. 14 Both men maintained it was normal behaviour for the employees in the section to consume two cans of beer in the yard at the end of a work day. The beer was located in a locked fridge designated as the "beer fridge" with the beer bought by the employees who each contributed $2 for that purpose. This practice has since been banned by Council. 15 The two men left the yard not long after 8 pm. They picked up a friend who was walking along Jensen Road and were driving to Mr O'Hara's residence in the Council truck along Wackaden Street when they were pulled over by Senior Constables Mooney and Wilson for a random breath test. Mr O'Hara returned a positive reading and was taken to Griffith Police Station for a breath analysis. He returned a mid range reading of 0.100. His licence was suspended and he was summoned to attend Griffith Local Court to answer a charge of driving with a mid range PCA. 16 On Monday 23 May Mr O'Hara advised his Supervisor, Brian Keys, about what had happened, he in turn informed Mr Tyrrell who requested Mr O'Hara write a letter to Council management about the incident. 17 A disciplinary meeting was held on 24 May with Mr Tyrrell and Mr Mckinley. The USU Delegate Mr Jim Taylor was also present. As a result of the meeting Mr O'Hara was terminated by Mr Brooks by letter on the 24 May effective from the 27 May 2005. Mr O'Hara was paid five weeks notice payment and all relevant statutory entitlements. 18 Mr O'Hara subsequently pleaded guilty in Griffith Local Court to the offence of driving with a mid range PCA, was fined and had his driver's licence suspended for a twelve month period which expired on the 21 May 2006. 19 In 1995 Mr O'Hara was also charged with a high range PCA offence and disqualified from driving for twelve months. He was again charged with a similar offence in 1997 and disqualified from driving for 18 months. On the last occasion he was issued with a written warning by Council and demoted to a Trades Assistant for the 18 month period. 20 Mr O'Hara also had a range of other matters on his Police record including another drink driving charge in 1986 when he was 14 years of age and prior to commencing work with the Council. The Evidence 21 It was Mr O'Hara's evidence that he had not eaten anything at all on Saturday 21 May and indeed had not eaten since about 5 pm on Friday 20 May. On the Friday night after work he and Mr Vaughn-Appel consumed approximately 12 drinks each before going to bed about 12 midnight. The drinks were bourbon and cola mixers in cans and cans of beer. This was confirmed by Mr Vaughn-Appel in evidence. 22 Mr O'Hara maintained he had been on call for a continuous period of about 6 weeks. It was also not contested that he had been on call for approximately 23 weeks in the previous 12 months. 23 He also maintained that he did not ever drive whilst on call if he had been drinking at home and was over the limit. He got someone else to drive. He considered he was not affected by alcohol on the morning of 21 May and was okay to drive both then, during and later that night after leaving the yard. 24 Not long after he arrived at the site on the Saturday morning Mr O'Hara got a call to go to another job and left in the truck. He was gone about half an hour. However, that job turned out not to be one within the responsibility of the Council and he returned to the site. Mr O'Hara said there were other occasions during the day when he left Bowditch Place in the truck to return to the yard for equipment etc. 25 Mr O'Hara had nothing to eat all that day and only drank water. There was water available from taps in the street and, on the evidence of Mr Vaughn- Appel, water on the other Council truck that was there at the site. 26 The evidence of Mr Humphreys generally confirmed the events of that day. He was also called in to work at Bowditch Place although he was not rostered on call. 27 Mr Humphreys deposed that at about 5.30 pm he left the site to purchase pies and sausage rolls which he took back to the team. Whilst he did not see Mr O'Hara eating any of the food, he deposed: "but I am pretty sure that he would have done. If he didn't he definitely would have been offered some food and had the opportunity to eat if he wanted to". 28 Mr O'Hara saw the "boys" eating the pies when he got back from his ex-wife's house. He was offered a pie by Mr Humphreys but didn't eat one. 29 At about 5 pm, because the burst water main was fixed and was backfilled, he left the site and went to his ex-wife's house which was only five minutes away to go to the toilet. He had not gone to the toilet all day. Whilst there he drank one bourbon and coke can which was in the fridge. That was the only cold drink in the fridge. He drank it quickly in about 2 or 3 minutes as he was thirsty. 30 He considered it was alright to leave the site as the burst water main was repaired and in his view, the job finished. It had "let go" when he returned with water seeping up through the road and further work had to be done. However, he conceded that even at 5 pm the job wasn't finished if he still had to return gear and equipment to the yard and that he would still have been on duty. 31 Mr Vaughn-Appel's evidence was that at 5 pm, although the water main had been fixed, backfilling of the trench had not yet taken place. He generally did not see what was happening during the day as he was in the hole working on the water main. 32 After Mr O'Hara and Mr Vaughn-Appel returned to the yard and unloaded the gear and equipment they drank the six cans of beer purchased on the way back to the depot. Mr O'Hara said they both had two cans. However, Mr Vaughn-Appel said he had the remaining four cans. They sat by the truck drinking the beer. 33 When they left the yard to drive back to Mr O'Hara's home at Nericon they picked up a friend who was walking along Jenson Street and had flagged them down. Mr O'Hara said it was normal for people to walk along the street like that in Griffith as there was no public transport. 34 Mr O'Hara could not remember exactly what he said to Senior Constable Mooney when he was pulled over. He was told it was a random breath test and asked if he had been drinking recently. Mr O'Hara said he told him he'd "had a few". 35 He did not expect to be over the limit and was surprised at the result of the test at the Police Station. He maintained the Police at the station were also surprised he went over. The only thing he could put it down to was that it was due to not having eaten all day and the alcohol he had consumed the night before still being in his system. 36 He did not agree that Mr Vaughn-Appel and the passenger were intoxicated. Whilst he acknowledged Mr Vaughn-Appel "mouthed off" at the Police Officer he said he would have spoken like that even if sober, "that was just Mal." 37 Senior Constable Mooney said that Mr O'Hara was co-operative and not aggressive. However he smelt of alcohol and Senior Constable Mooney formed the opinion fairly quickly that he was under the influence of alcohol. 38 He couldn't recall the conversation with Mr O'Hara but standard procedure was to ask if a person had been drinking, how long since they had had a drink and where. If alcohol had only been consumed in the last two minutes or so, procedures as to waiting periods were detailed in relation to the issue of mouth alcohol. 39 Mr O'Hara tested positive at the road side and therefore was arrested and conveyed to the Police Station for a breath analysis test. 40 Senior Constable Mooney recorded the details of the incident on a Full Facts Sheet (Exhibit 6) which said in part: "When questioned in relation to his drinking O'Hara stated he consumed 6 375 ml cans of Melbourne bitter beer and bourbon and cola mixers between 12 midday and 8 pm that day. He was not eating while drinking." Senior Constable Mooney confirmed in evidence that that was what Mr O'Hara had told him. 41 At the Police Station, Senior Constable Wilson conducted the interview with Mr O'Hara in the presence of Senior Constable Mooney with the responses entered onto a standard record of interview form with established information which required only boxes to be ticked or words to be entered on a line space. For example the only options for where alcohol was consumed were boxes designated as Club, Hotel, Home, Other. The appropriate box was ticked and there was a line space under the entry "venue where alcohol last consumed" for that information to be inserted. 42 Mr O'Hara was noted as consuming the alcohol at "Bowditch Place Griffith (work)". There was a notation of "time of first drink" - 12 noon and "time of last drink" - 8 pm. Size of drinks, number and type was also noted (6 cans Melb bitter, and bourbon and cola). 43 There was no issue raised that Mr O'Hara was driving erratically in any way. He was just pulled over as part of a random breath test. 44 Senior Constable Mooney also said that Mr O'Hara told him that he consumed the alcohol whilst at the work site and sitting by the side of the road. He'd told them he'd been fixing a water main. 45 He maintained that Mr O'Hara's answers were not misunderstood as the questions asked were those that were asked all the time and they are generally not misunderstood. 46 He also indicated that if someone had said that they had only had one can of bourbon and cola and two cans of beer and blew 0.1 then they would not have been honest in their answers. 47 Senior Constable Mooney also indicated that Wakaden St contained apartment blocks and it was not uncommon for pedestrians to be walking along the road. He also said that it was not uncommon for it to be a regular occurrence to detect people driving under the influence in Griffith. 48 In response to questions from the Commission he expressed doubt that a 0.1 reading could be compounded from a scenario of a large quantity of alcohol consumed the night before, only three drinks before 8 pm on Saturday and no food consumed. He acknowledged that it was beyond his expertise but said that in layman's terms once a person stops drinking alcohol it's still left in their stomach for a certain amount of time but the alcohol absorbed by the body is continually eliminated. By the time they stopped him at 8 pm he would have expected any alcohol from the night before to have been eliminated by midday and 3 further drinks up to that time wouldn't boost him to the level they got. 49 He was not surprised that Mr O'Hara was subsequently fined $1000 and disqualified for twelve months for a mid range reading. 50 Senior Detective Wilson was the police officer who actually conducted the interview at Griffith Police Station. In response to questions about the police documentation of the DUI charge (Exhibit 6) she said: "A. He - I can't remember word for word but what I can recall is that he said he finished working at the site at 12 noon, 'cause they got a call out for a burst water main or something, and he had some beer and then he mixed the Bourbon into the Coke after he'd consumed some of the Coke and drank some Bourbon mixed into the Coke. And we would have - I wouldn't have just picked number six out of the air. Would have been discussions with Mr O'Hara as to how much of the - how much beer he consumed along with how much of the Bourbon and cola he'd consumed to come with that figure." 51 She said there was no mention of passengers and went on to say in the following exchange. "Q. But he did talk about when he had finished work? A. Yeah, at the work site, yep. Q. Did he actually talk about when he had finished work or just at the work site? A. They were working at Bowditch Place and when they finished fixing the water main-- Q. So when they finished fixing the water main? A. Yep, they drank there at the site after they'd finished fixing the water main-- Q. So did he say they drank at the site? A. Yeah, they were drinking at the site." 52 She went on to say in cross examination that Mr O'Hara said he had his first drink at midday. There was no mention that she could recall of having drinks at the depot. The last drinks were consumed at Bowditch Place. 53 She had asked him where he was working and he had said "at the site". He was asked "where's that" and he replied "Bowditch Place." 54 There was then an exchange about the coke bottle and what he told her and she indicated a 1.25 normal standard bottle of coke but she didn't know how much was mixed. 55 Senior Constable Wilson confirmed that he was co-operative and quiet but appeared "moderately affected by alcohol". She went on to read from the completed information sheet attached to the Facts Sheet (Exhibit 6). 56 She indicated that it was not for her to comment whether the fact that he had been working all day and had nothing to eat could contribute to his glazed eyes and unsteady appearance. 57 Following this evidence Mr O'Hara was re-called to give further evidence. He had been present in the courtroom whilst Senior Constable Wilson was giving evidence but not present during the evidence of Senior Constable Mooney (on 6 March). 58 There was extensive re-examination and cross examination of Mr O'Hara about the police interview and what he said, what was asked and why he said what he did. Some relevant transcript is extracted as follows: "KLOWER: Q. In her evidence that you told her that you finished work at 12 noon? A. No, it's not right. She's mistaken. Like I said with my recollection I told her - I explained to her that I woke up with alcohol in me system and she put that into her words and she put down six drinks from 12 midday. I signed it and agreed to it but that was her words. I still maintain that I had alcohol in me system from the morning before, one can of Bourbon and two beers. Q. No, but I didn't ask you that. I asked did you - the officer said that you told her that you finished work at 12 noon? A. That's not correct. Q. You didn't tell her that you finished work at 12 noon? A. No. Q. She also said that you told her that you had your first drink at 12 midday. A. When she put it into words - in them words, six drinks from 12 midday, I agreed to that, just to save argument. Q. So -- A. I explained to her what I'd drunk .. Q. Could you tell the Commission in your - just slow down and say in your words exactly why you told the officer what you told her? A. Well I said that I'd been drinking the night before, I had the one can of bourbon and the two beers and she - she more or less - rather than write all that down she said, "So you'd have about six beers in you." And I said, "Yes. And she said, "So from about 12 o'clock?" And I said, "Yes." Q. She also suggested that you told her that you had - you'd consumed this - your drink - or you consumed drink in Bowditch Place. A. No, I never had nothing to drink at Bowditch Place. I might have said that I had a drink at home, that can of Bourbon, but I never said - I never drunk nothing at Bowditch Place. Q. You didn't consume any alcohol on the job at Bowditch Place. A. No. Q. She also said that you told her that you'd poured the content of a Bourbon and cola into a 1.25 litre Coca-Cola -- A. Yeah, I don't know where she got that from. Q. The Bourbon and cola that you had at your house you didn't add that to a 1.25 bottle of coke? A. No. Q. So you don't know where that came from? A. I don't know where she got the 1.25 bottle of coke from. --------------------------------------------------------------------------------- Q. So is it your evidence that you're saying that because you'd had a big night drinking before you were intoxicated to the point where if you had one Cougar and two beers you were going to be over the limit? A. Yes. Q. And you knew that? A. I didn't know that. I - when I got pulled over I still didn't think I was over the limit. Q. Now you just answered in response to Mr Klower's questions that there was a question asked to the effect of, "Well how many beers do you think you've got in you," and that's where the six comes from. A. That's what she come up with. -------------------------------------------------------------------------------------------------- Q. So why did you say 12 noon then? A. She said 12 noon. Q. No, no, you were asked when was your first drink? A. No, she said - I'm trying to - I wish you'd listen to what I'm telling you, I'm repeating myself. She said "About six drinks," and I said "Yes." And she said, "From about 12 o'clock," and I said "Yes." Q. So why did you say yes? A. Just to get it over with. I wanted to get home. At the time, like I said, I didn't think I was over the limit. I didn't think there was much in it. Q. Well you know that's not the case now because you were .1? A. That's now, but when she was writing this out I still hadn't received my test back. They still didn't have my reading. Q. And then - and you say you don't know where she got this idea about a Coke bottle. A. No. I may have said that I've drunk Bourbon but I never said nothing about mixing in no Coke bottle. Q. She said more than that. She says she remembered you telling her that you were filling it - she actually remembered the size of the bottle, she remembered that you told her that you filled - you'd taken some of the coke out and put Bourbon in. A. No, that's mistaken. Q. So she's just made that up? A. Yes, or she's mistaken. Q. Well how can she be mistaken, she could only get that information - A. Well this is 10 months ago, she couldn't remember half of the things unless she was reading it from here. 59 Mr O'Hara went on to say that nothing was mentioned by her in her evidence of the fact that he said he had alcohol in his system and nothing about having two drinks back at the yard. He insisted he had told her that and that what had happened was she just put it in her own words. 60 Mr O'Hara denied that he had never disclosed to anyone that he had been drinking the night before. He had never denied it - no one had asked him. It wasn't in his witness statement because he had put in what happened on the day, which was what he was asked to fill out. He maintained he told Mr Mackinlay at the meeting and also Mr Tyrrell that he had been "on the grog" the night before . 61 He insisted he did not say he was drinking at Bowditch Place only that he was working at Bowditch Place, but that Senior Constable Wilson may have got it mixed up from asking him where he was working. 62 He agreed he had pleaded guilty and had not raised any of this. He was over the limit and he couldn't say he wasn't and was just going to get his sentence. 63 At the time it all happened he didn't think he was over the limit but conceded he could have been over as a result of the drinking on the Friday night or even with the drinking of the night before together with the additional can of Cougar. 64 He also agreed that he was shown the Police Facts Sheet but said he didn't really read it. He made no protest about it nor sought to make any amendment saying - "No. I'd been working for 11 hours, I just wanted to go home." 65 Mr Humphreys' evidence dealt with the mechanics of the on call system. He also indicated he had a good relationship with Mr O'Hara and never had any problems with him. 66 He detailed the events of the day and his involvement in his work. His evidence confirmed that the work went all day. He was called at 9.00 am, although he wasn't on call, and went to the site in his truck where there were already employees working including Mr O'Hara and Mr Vaughn-Appel. 67 He also had occasion to leave the site from time to time in his Council truck to go and get needed equipment from the Council depot. He deposed that: "It was a long day and we worked up until around 8 pm". He also returned to the Council depot at the end of the day to return equipment. 68 Mr Humphreys also confirmed that up until Mr O'Hara's dismissal every now and then they would have a couple of beers after work at the depot. Management never bought them beer to drink at the depot. If he had to drive home they would be sensible and only have 2 beers. 69 He indicated that after the dismissal of a Mr Edwards at the beginning of 2004, Council redistributed Council's Code, drawing their attention to the policy on alcohol consumption in the workplace or attending for work whilst under the influence of alcohol. After Mr Edwards was dismissed it sent a really strong message at the time and he knew that if he was caught drink driving whilst on duty and in a Council vehicle he would expect to be dismissed. 70 On the Saturday night Mr Trevor Weeks was contacted to come and pick up the truck Mr O'Hara had been driving. He later drove Mr O'Hara and Mr Vaughn- Appel to Mr O'Hara's home from the Police Station. 71 Mr O'Hara acknowledged that when he appeared in Griffith Local Court on 27 May 2005 he pleaded guilty. He did that because he was over the limit. He also acknowledged that the Magistrate told him "you are lucky that your last DUI was more than five years ago. If it had not been I would have seriously considered imposing a custodial sentence upon you." 72 In relation to the meeting on 24 May, Mr O'Hara considered the purpose of the meeting was to sack him as Mr Mackinlay told him he was finished and he would have to let him go. 73 He didn't expect this as he thought it would just be a disciplinary meeting and he would be reprimanded. He had gone DUI twice before at Council and nothing had happened to him. 74 Whilst he acknowledged that Mr Jim Taylor the Union Delegate was at the meeting he did not have the opportunity of speaking to him beforehand as Brian Keyes had rung him up and arranged for him to be there. He didn't know if Mr Tyrrell had told him about what happened. 75 Mr O'Hara said he apologised for what he'd done and said he meant no disrespect to Council. He said he explained that he honestly didn't think he was over the limit. 76 Generally, Mr O'Hara could not remember exactly what was said at the meeting and also said he had not read the witness statements of Mr Mackinlay or Mr Tyrrell. He thought he had been shown them but didn't take much notice of them. 77 He was however taking the matter seriously and wanted his job back. 78 He could not think of anything else he could have told them, apart from what he explained had happened. 79 He could not recall being told anything about the matter being serious, and why it was so or other matters put to him. The only thing he could remember Mr Mackinlay saying was "I'll have to let you go." Mr O'Hara indicated he said in reply "oh you mean the sack." 80 Mr O'Hara said Mr Mackinlay said "Yes" in response. Mr O'Hara said he had nothing more to say and Jim Taylor said "that's a bit harsh, we'll be taking action." Whilst he could not remember precisely the exact words Mr Taylor used that was the effect of what he said. 81 Mr O'Hara was adamant that this was what was said and he could remember that clearly, as after 17 years on the job of course he was going to remember how he sacked him. 82 Mr O'Hara was taken to his part 7A Reasons for Application. The Union had completed it, he didn't read it beforehand and wasn't sure if he'd read it. The reasons listed in the application as to why the dismissal was unfair he had not revealed during the 24 May meeting. 83 Mr O'Hara said he didn't say too much at all as he didn't think he was going to be sacked. He didn't get a chance to say much as he was sacked on the spot. He didn't think he was going to be sacked, only reprimanded as the last two times he went DUI, it went to Council and he had to write a letter to Council and Council made a decision. He maintained that this time Mr Mackinlay just cut Council out, did it on the spot and didn't ask for time for Council to consider it. 84 Mr O'Hara acknowledged that he had received a formal warning about the previous DUI and disqualification and was on notice about disciplinary action being taken about any future disqualification. However he said the warning only said "may result" and that was 6 years ago. 85 He maintained he didn't realise he was over the limit. He thought he was safe to drive and nobody was put at risk. He said that even "the coppers" at the Police Station were surprised at the result. He didn't consider it as a serious offence. "Murder and rape" were serious not DUI. 86 Mr O'Hara agreed that he subsequently received a termination letter from Council (but did not realise that he was paid a 5 week notice payment). He also agreed that he didn't say anything more or write a letter to Council. He said he couldn't see the point of doing that as the Union were taking the matter up and he had put in the hands of the Union. 87 Mr O'Hara was taken to his employment record as he had said in his application that he had an "unblemished" record of 18 years service. 88 Various individual incidents, as appearing on his record, were canvassed with Mr O'Hara - not wearing a safety vest; maintenance of the truck in good condition and sick leave absences. Mr O'Hara explained the particular circumstances of each individual incident and indicated he thought they were "minor" and that what was ignored was all the good things he had done at Council. 89 Mr O'Hara also explained the practice of his co-workers having a couple of cans of beer at the depot at the end of the day from beer bought by the men and kept in a separate beer fridge. This was locked on the weekend. Management were aware of this practice and had come down and had a drink with them on occasions. He regarded this as a "culture" of it being alright to have a couple of beers and then drive. Those were his words not and not the words of anyone else. 90 This practice was confirmed by Mr Tyrrell who said to his knowledge it had gone on for the 22 years he had been at Council. He had had a drink with the men on occasion and they talked over the events of the day. However he could not recall anyone going over the limit and they knew if they were on duty they had to stay within the legal limit as they could have to attend to emergencies. He acknowledged there were other employees who had access to a Council vehicle and who would drive home from the yard in that vehicle. 91 Mr Tyrrell was not aware of any policy which said workers could not drink whilst on-call. 92 Mr Tyrrell indicated that Mr O'Hara was a good worker and one of their more experienced plumbers with a knowledge of their system. He had told Mr Mackinlay that on the morning of the 24 May before the meeting. This was in response to his query about what Mr O'Hara was like as a worker. 93 Mr Tyrrell deposed that they had had an up and down relationship in the past and there had been a problem at one stage with him leaving work without telling anyone he was going. This stopped after some disciplinary action and they now had a good relationship. 94 Mr Tyrrell confirmed that Mr O'Hara had told him what had happened on the Saturday, the drinking the can of cougar and later the two cans at the yard from the beer they'd bought on the way there. He'd told him that he hadn't had any food all day and didn't think he was over the limit. Mr Tyrrell didn't think that what he did was premeditated at all. 95 He had told him to put it all in a letter and explain the extenuating circumstances etc, including how long the job went. 96 He also noted that after Mr O'Hara explained what had happened he told him that the day he was due to go to court was the day that Mr Vaughn-Appel was due to get his licence back and that he would be able to drive for him. Based on this he believed Mr O'Hara wasn't concerned about loosing his job and that "Council would look after him." 97 Mr Tyrrell deposed that he thought it was "fair enough" that employees were given the benefit of one DUI charge but employees who were repeat DUI offenders should not be entitled to expect that they could drink and drive as often as they liked without any consequences. 98 In relation to the previous DUI disqualification of Mr O'Hara it had not taken place whilst on duty and driving a Council vehicle. On that occasion they had been able to accommodate Mr O'Hara as a Trades Assistant during the period of disqualification. The first time was when he was an Apprentice and as such had to be accompanied by a Tradesman at all times so it was not a practical problem. 99 Mr Tyrrell detailed the practical difficulties faced by Council if Mr O'Hara was re-instated whilst he did not have a licence. 100 Mr Tyrrell indicated that during the meeting neither Mr O'Hara or Mr Taylor said much at all. He deposed as to the exchange between Mr O'Hara and Mr Mackinlay as follows: Mr O'Hara I didn't think I'd be over". Mr Mackinlay: This is an extremely serious offence. You drove a Council truck, while under the influence of alcohol and while you were on duty. This is the third time you have been charged with DUI. You haven't told me anything that would justify us keeping you on, you don't seem to have defence". Mr O'Hara: "What, you mean I'm finished, sacked?" Mr Mackinlay: "It looks like it, you'll probably have to finish up on Friday". Mr Taylor: "That's a bit rough. Can we talk about this?" Mr Mackinlay: "Listen, he hasn't offered any reason why he shouldn't be dismissed. This is extremely serious. We'll probably look at giving you five weeks severance pay in the circumstances, I don't have any other option in these circumstances. You haven't provided any reason why we should keep you on". Me:(Mr. Tyrrell) When you're on-call you're expected to stay under the limit - as you know you can be called out at any time." 101 Mr Tyrrell said Mr O'Hara seemed shocked at what Mr Mackinlay said to him. 102 Mr Tyrrell also indicated that Mr Mackinlay had spoken to him prior to the meeting and indicated that he had read Mr O'Hara's letter. He had also briefed Peter Brooks and Mr Tyrrell believed Mr Brooks had made a decision based on the letter. Mr Tyrrell had commented to Mr Mackinlay that unless there were extenuating circumstances he thought he had virtually told him his decision. 103 Since the time of making his witness statement Mr Tyrrell indicated that Council had employed a Plumber on a two year contract to fill Mr O'Hara's position. However that person had since left Council. 104 Mr Tyrrell indicated that he wasn't aware that Mr O'Hara and Mr Vaughn-Appel had been drinking on the Friday night before the Saturday in question and whilst Mr O'Hara was on call. It had not been raised previously and he would have a concern that the two men had had a dozen drinks that night whilst he was on-call. It disappointed him that that had happened. 105 Attached to Mr Tyrrell's witness statement was the Position Description for a Plumber and the On-Call Agreement applying at Council. 106 Mr Mackinlay's evidence detailed Council's policies and procedures and various relevant documents were attached. 107 In relation to the meeting of 24 May, Mr Mackinlay essentially agreed with Mr Tyrrell's version of events indicating that throughout the meeting Mr O'Hara remained silent and seemed reluctant to speak. At no stage did he offer any reason or explain why his employment should not be terminated. 108 At the conclusion of the meeting Mr Mackinlay told Mr O'Hara: "In my view this incident is extremely serious and it is my expectation that we will have to let you go". Mr O'Hara then asked "what you mean the sack". Mr Mackinlay said "yes". Mr Taylor said "that's a bit harsh can we talk about it". Mr Mackinlay told him they'd pretty much covered all the grounds and what else was there to talk about ? 109 Mr Mackinlay discussed the matter with Mr Brooks after the meeting and indicated that in spite of Mr O'Hara's 17 years service in the circumstances he couldn't see there was any option but to dismiss. Not to dismiss would send the wrong message to other employees and Council couldn't be seen to tolerate that sort of behaviour. The decision ultimately rested with Mr Brooks who agreed there was no other option. 110 Mr Mackinlay did not contact the Union Organiser Mr Fayle as this was not requested or mentioned by Mr O'Hara. 111 Similarly Mr Vaughn-Appel was not spoken to as he was also not mentioned by Mr O'Hara and Mr Mackinlay regarded him as a "bit player". 112 Mr Mackinlay was not aware that Mr O'Hara had a member of the public in the vehicle as a passenger when he was stopped by the Police. He only found out this information when he was contacted by phone by Senior Constable Mooney on the 25th May the day after the interview with Mr O'Hara. 113 Mr Mackinlay gave evidence about his knowledge of Council's policies in relation to driving Council vehicles, being on call and Council's alcohol policy. His definition of "under the influence of alcohol" as referred to in Council's policy was "exceeding the legal limit." 114 He rejected the contention that at the time of the meeting as Mr O'Hara had not yet been convicted in the Local Court a decision to terminate was essentially precipitous. He indicated that at that time all of the parties present, including Mr O'Hara, were convinced that he was going to receive a very harsh penalty possibly including gaol, as this was his third offence 115 Mr Mackinlay conceded there were examples of other council employees losing their licences for driving offences and remaining in Council's employment. 116 In coming to a decision to terminate Mr O'Hara they did take his 17 years service into account. They didn't want to terminate him and were mindful of the consequences for Council both of losing an experienced Plumber and the personal consequences to Mr O'Hara. There was no other option given the seriousness of the conduct and that Mr O'Hara admitted the truth of what had happened and that was subsequently borne out by the Court. 117 They were genuinely hoping that some information would emerge from what he had to say about events that would help them to move forward, but that didn't happen. Council had to act responsibly in the circumstances. 118 Mr Brook's evidence mainly dealt with the information he received from Mr Mackinlay after the interview with Mr O'Hara and the decision he then made as a consequence. 119 Prior to the interview he had not formed a view about what disciplinary action, if any, he should take against Mr O'Hara. However, after hearing Mr Mackinlay's response he determined that given the seriousness of what had occurred, he saw no other alternative but termination and subsequently advised Mr Mackinlay by email to proceed with the termination. 120 It was part of Mr Brook's evidence that Mr Mackinlay had told him that Mr O'Hara had had passengers in the truck, a Council employee and a member of the public. 121 In determining to terminate Mr O'Hara, Mr Brooks took into account the following factors:- § It was the third DUI charge and Mr O'Hara should not be given a fourth chance. § He was on duty at the time of the incident. § He was driving a Council truck placing Council property at risk. § He was driving under the influence in a residential area - raising dire consequences for the Council. § He had passengers in the truck (a fact only found out after termination.) § He put his own and other lives at risk. § If he had been called out again that night he would not have been able to attend or would have been unable to perform his duties. 122 Mr Brooks also indicated that he was not aware at the time of the interview of termination that Mr O'Hara had been drinking on the Friday night whilst on-call. That would have only increased the seriousness of how the incident would have been viewed. 123 Mr Brooks also gave evidence about Council's alcohol policy. Council Management had not been aware of the practice of workers having a beer at the depot at the end of the day. As soon as it was brought to his attention after Mr O'Hara's dismissal he send a memorandum (June 24th) to all staff reminding them that no alcohol was to be stored or consumed on the premises. 124 He rejected the claim by the Union that it was common practice for Council staff to drive Council vehicles while under the influence of alcohol. However he conceded that what the Union had in fact claimed was in relation to driving Council vehicles after consuming alcohol. 125 Mr Brooks had subsequently sighted the Police Facts Sheet and was extremely concerned that it detailed Mr O'Hara admitting to consuming 6 drinks between 12 pm and 8 pm which was at odds with his statement that he had consumed "very little alcohol on that day". 126 Ms Anker's evidence concerned Council's policies at the workplace and also Council's involvement in various projects in the local Griffith community in relation to driving and alcohol and drug abuse. 127 Mr Snaidero, a former employee of Council, gave general evidence about his knowledge and understanding of what had happened with various employees who had lost their licence and continued in employment with Council. 128 Mr O'Hara also gave evidence of casual work obtained through a labour hire firm since he had been terminated. SUBMISSIONS 129 Mr Klower for the applicant sought to address the following issues - § Were Mr O'Hara's intentions lawful? § Did Council have a policy of nil tolerance concerning alcohol? § Did Council apply discipline equally? § Did Mr O'Hara consume alcohol at work? § Was Mr O'Hara honest with his employer? § Mr O'Hara's comments to the police during the interview at Griffith Police Station. 130 It was submitted that Mr O'Hara did not unlawfully consume alcohol at work. The evidence showed he drank water. He thought the job was finished then he had the can of Cougar at 5 pm. He had no further alcohol until the two drinks at the works depot. 131 The evidence clearly pointed to a situation where Council did not have a nil tolerance policy either in the workplace or on-call. There was the long standing common practice of a couple of drinks after work. This was participated in by supervisors. It was not until this incident that directions were given to cease the practice. 132 Other employees had lost their licences (some for some years) yet were still working at Council. Mr O'Hara's last conviction was seven years ago. Council was seeking to make Mr O'Hara an example in cleaning up the workplace of a 24 year practice. 133 Council should have made Mr O'Hara and all staff aware that no tolerance would be shown to these types of offences including whilst on-call and standby. This had not happened. 134 Mr O'Hara's credentials as an honest and hardworking employee were not questioned and his supervisors were supportive of his good character and workability as were his work colleagues. 135 In relation to the police evidence Mr O'Hara had told them things that were completely out of character. There was no logic in the fact that he would tell them he had finished work at 12 midday. There was no suggestion from any of the witnesses that the work did not finish firstly at 5 pm and then at 8 pm. 136 There was also no suggestion that the Police were lying or that Mr O'Hara didn't tell them those things (including about the coke bottle). It could be put down to his Aboriginal heritage, having a laid back approach to those type of things and, as he said, he just agreed with anything she said, because he just wanted to get out of there. 137 What he told the Police should be looked at in isolation. As knocking off at 12 midday had no logic to it, any mention of mixing coke and bourbon in a bottle may have been the night before as it is mentioned nowhere else. 138 Mr O'Hara immediately told his supervisor and Council officers what had happened and subsequently apologised for his actions. 139 Mr Klower relied on a decision of Sams DP in Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 concerning an employee terminated after being caught DUI in a work vehicle and whilst driving out on a call-out. 140 Mr Klower submitted there were strong parallels between that case and Mr O'Hara's, in relation to the employers' policy, the employee's awareness of it, statements of other employees, his lengthy service and prior good work record. That employee had also made frank and open submissions and the Deputy President believed him to be very sorry for what he had done. 141 Taking these various factors into account, it was held that in the circumstances termination was too harsh and he went on to order, re-instatement with continuity of service and backpay except for a 5 month period. 142 Mr Klower sought reinstatement but did not seek recompense for the period since Mr O'Hara's dismissal on the basis that he had been earning income through casual work. 143 Mr Klower further suggested that Council needed to tidy up its alcohol policy to the point where it provided for zero tolerance and that it be made clear to all employees including Mr O'Hara that they would have to abide by that decision. 144 Mr Gardner for the Council elaborated in depth on the detailed written submissions tendered which traversed the relevant background and evidence, issues of onus, procedural fairness, relevant case law and the findings open to the Commission. 145 Also tendered was a succinct and helpful summary of those detailed written submissions reproduced as follows: 146 The termination of the employment of Shane Gregory O'Hara(Applicant) was not harsh, unjust or unreasonable. There was a valid reason for the termination of the Applicant's employment. 147 The Applicant participated in a fair investigation and disciplinary process. · On 25 May 2005 a meeting was held with the Applicant, John Taylor of the USU, John Tyrrell and Ian Mackinlay (Meeting). · The Meeting was held to discuss the circumstances surrounding the Incident with the Applicant. · The Applicant attended the Meeting accompanied by a union representative and was given a full opportunity to provide reasons as to why his employment should not be terminated. · Under cross-examination, the Applicant admitted that none of the issues raised in the Application in support of his contention that his dismissal was unfair were raised either by him or by Mr Taylor at the Meeting. · The Applicant was advised in writing of the outcome of the meeting and the Respondent's decision to terminate his employment. 148 In making the decision to terminate the Applicant's employment, the Respondent took into account the following factors. · The Applicant was on duty at the time of the Incident. · The Applicant was driving the Respondent's truck at the time of the Incident. · The Applicant was a repeat offender, in that at the time of his dismissal, the Respondent believed that it was his third conviction for DUI. It has since been revealed that it was in fact his fourth. · The Incident was a serious breach of the Respondent's Code of Conduct. · The Incident was a serious risk to health and safety. · The real risk that the Applicant may re-offend. This concern has been reinforced by the during the trial by the Applicant's refusal to recognise that driving a four tonne truck while under the influence of alcohol is dangerous. The Applicant believes that he can safely perform work and drive a vehicle when drunk. This is an unacceptable work safety risk. · The Applicant's blemished record of service. · The Applicant was carrying a passenger in the truck at the time of the Incident. It has subsequently been discovered that the Applicant was in fact carrying two passengers at the time of the Incident. 149 At the Meeting and in the evidence given, the Applicant stated that he had only had three drinks on the day of the Incident. · Police documents produced under Summons, as well as the evidence of Senior Constable Jamie Mooney (SC Mooney) and Senior Constable Nicole Wilson (SC Wilson), contradict the Applicant's version of events and reveal that the Applicant told both Senior Constables the time of his arrest that he consumed an amount equivalent to six cans of bourbon and cola throughout the day. · It was only revealed in the testimony of SC Wilson that the Applicant had in fact been drinking bourbon out of a 1.25 litre bottle of 'Coke' brand cola at the Site on the day of the Incident. · The Respondent submits that the Commission should give significant weight to the Applicant's dishonesty when assessing whether his dismissal was harsh, unreasonable or unjust and (if applicable), when determining remedy. The Applicant was dishonest to the Respondent and was dishonest during the trial. 150 The Applicant has given evidence that the police documents and testimony evidence is incorrect. In determining whether this is the case, the Respondent submits that the Commission should give due weight to the following factors. · The Applicant pleaded guilty to the criminal charge in June 2005, and did not contest the police evidence until the first day of the hearing. · The inherent unlikelihood that SC Mooney and SC Wilson are lying. § The fact that the Applicant is motivated by self-interest in claiming that he only had three drinks and did not drink at the Site. · The testimony evidence of SC Mooney, who unequivocally stated that he thought it was extremely unlikely that an adult male who consumed three drinks over the course of three hours would return a blood alcohol reading of 0.10, even if that person had not eaten throughout the course of the day and had consumed a large number of alcoholic drinks the night before. · The Applicant was drunk when pulled over by SC Mooney and SC Wilson. Both police constable witnesses had the benefit of fact sheets taken at the time of the Incident. Both police witnesses hold position of trust within the community. The evidence of the police offers must be preferred over that of the Applicant. 151 Given that the Applicant advised Council that he would be pleading guilty to the charge, it was reasonable for Council to assume that the drink driving charge would result in the disqualification of the Applicant's drivers licence. In any event, the Police had suspended the Applicant's drivers licence on the night of the Incident. 152 The Applicant failed to establish that any alleged "culture of drinking" existed at the Respondent's organisation. In any event, it had been established that on the day of the Incident, the Applicant drank alcohol purchased by himself at home, at the Site and at the Respondent's premises, which rather than proving a culture of drinking, suggests the Applicant has unmanageable personal problems with alcoholism which manifests in a dangerous misunderstanding of work safety. 153 The Applicant has on all account failed to demonstrate that his dismissal was harsh, unjust or unreasonable. 154 During the course of his submissions Mr Gardner relied on the following cases in relation to similar issues concerning misconducts of an employee and the appropriatness or otherwise of termination as a consequence and draw either parallels or contracts with the circumstances surrounding Mr O'Hara's termination. 155 The following cases were relied on concerning parallel or contrasting situations:- Mastroianni v Telstra Corporation (2000) IRComm A 240 (9 March 2000); John Lysaght (Australia) Limited and Federated Ironworkers' Association of Australia, NSW Division & Ors (unreported, Sheppard J, Matter 259 of 1972, 14 September 1972) and TWU o/b Ferguson v Linfox (2004) NSWIRComm 1116. 156 Mr Gardner distinguished the facts in Lorenzato as relied on by the Union submitting that Mr O'Hara did not have as lengthy a period of service, and did not have an unblemished record which were the major mitigating factors in Lorenzato 157 The onus was on the respondent to establish misconduct per Pastrycooks, Biscuit Makers and Flour & Sugar Goods Workers Union (NSW) v Gartrell White (No 3) 1990 35 IR 70. 158 In relation to the submissions on procedural fairness Byrne and Australian Airlines Ltd (1995) 185 CLR410 was cited. 159 Reliance was also phased on Byrne v Australian Airlines, Hollingsworth v Commissioner of Police (No 2) (1999) 47 NSWLR 151, and Lane v Arrowcrest Group (1990) ALR 45 in relation to additional information, as to facts in existence at the time of dismissal, that only come to light after termination that may further justify termination. 160 On the issue of the impracticability of reinstatement or re-employment, the following cases were relevantly cited- Little v Commissioner of Police (No 2) (2002) NSWIRComm 52; St Vincent's Hospital Sydney Ltd v Harris (1998) 81 IR 173; Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186; State of NSW v Seedsman (2000) 217 ALR 583; Rapp v Wauchope RSL Club Ltd 81 IR 116; Retail Traders Assn' (NSW) v Shop Distributive & Allied Employees Assn (NSW) (1990) 36 IR 38 and NSW Sales Representatives & Commercial Travellers' Guild v Berge Paints (1984) 9 IR 273 161 In reply Mr Klower pointed out that the issue of the practicability of re-instatement raised by Mr Gardner, could be overcome as Mr O'Hara was due to get his licence back in June 2006. Any decision in favour of reinstatement would be conditional on him having a current driver's licence. 162 There was also a shortage of plumbers in the area and Mr O'Hara's knowledge was substantial. The cost of Council educating a new journeyman plumber would also be substantial. 163 There was no evidence to establish that Mr O'Hara was intoxicated or over the limit until he was pulled over. The eating habits of Mr O'Hara were relevant as was his Aboriginal background and his habit of going days without food. The previous DUI offences occurred when he was younger and a substantial amount of time had elapsed since then. There was also no evidence that Mr O'Hara had been dishonest in any way. 164 Additionally the lengthy period of time that Mr O'Hara had been on-call should also be noted. It was a one off incident. There was no suggestion of reckless or dangerous driving, it was a random breath test. There had been no issue raised of any health and safety breach on that day. 165 There was no way Mr O'Hara could have known he was over the limit and no evidence that he was, when he was driving backwards and forwards during the day. 166 On the issue of Mr O'Hara not giving a good defence of himself it was pointed out that whilst he may have been a good to excellent journeyman plumber, Mr O'Hara's ability to do these things was difficult. Even in Mr Klower's dealings with him it was mainly done through his sister and the Aboriginal Centre in Griffith. 167 Mr O'Hara may well need to seek assistance and counselling in the future. However Council also needed to revise its policy in relation to standby and call-out. 168 Mr Klower generally re-iterated matters dealt with earlier and submitted that the period since termination was sufficient disciplinary action. There had been unavoidable delays in hearing the matter. 169 Reinstatement was sought with any conditions imposed that the Commission saw fit. CONSIDERATION 170 I have carefully considered the evidence and the submissions of the parties in this matter. That has involved of necessity a very detailed consideration of the transcript. 171 As Mr Gardner has correctly acknowledged the onus is on Council as per Pastrycooks to establish that misconduct sufficient to warrant termination has occurred. 172 There can be no doubt that misconduct did occur and to that extent Council has clearly discharged that onus. 173 However the onus then shifts to the applicant to establish that such termination was harsh, unjust or unreasonable (or any combination thereof) and sufficiently so as to warrant the intervention of the Commission to exercise the discretion to either reinstate or re-employ Mr O'Hara. 174 The expression "harsh, unjust or unreasonable", was also considered in Byrne & Anor v Australian Airlines at p.72. The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 at p182. Essentially, those cases held that it is not necessary that a termination be found to be harsh and unjust and unreasonable. It can be one or any or all of those three. 175 Bankstown City Council v Paris (1999) 93 IR 209 requires that I make a specific and positive finding as to whether the termination of Mr O'Hara was harsh, or unjust or unreasonable ( or any combination thereof). 176 Given that Council has discharged the onus to establish that Mr O'Hara committed misconduct on the 21 May 2005 then it would seem to me that it follows that on that basis the termination of Mr O'Hara was unjust or unreasonable on substantive grounds. 177 The single issue remaining for determination of the Commission in this matter is whether, given all of the relevant circumstances, the termination of Mr O'Hara by Griffith City Council was too harsh a penalty for the misconduct that took place on 21 May 2005. 178 Mr O'Hara seeks reinstatement to his former position and Mr Klower has submitted on his behalf that that reinstatement should take place from the date he regains his driver's licence. His twelve month licence suspension expired on 21 May 2006. The 12 month period since his termination would effectively then be treated as a disciplinary suspension from his position with Council. I therefore do not need to address or consider issues of the practicability of reinstatement or re-employment of an employee who does not have a driver's licence but is required to drive as part of his duties with Council. 179 However I have to say that it is this issue as to whether or not to order reinstatement or re-employment or uphold Council's decision to terminate that has troubled me greatly. It is a matter that I have given considerable thought to and has weighed heavily on my mind. 180 I am very conscious of Council's varying obligations and responsibilities to its employees, its ratepayers, the public and the Griffith community in general. 181 I am very conscious of the seriousness of the drink driving offence (Mr O'Hara's fourth such conviction) for which Mr O'Hara was fined and lost his licence for 12 months. 182 I am also very conscious of the impact and effects, that essentially, the additional penalty imposed of termination can have on an employee, perhaps more so in Mr O'Hara's case. 183 Here is a man who has literally spent his working life thus far with Council, commencing as an Apprentice and working his way up to the position of Journeyman Plumber. He has acquired skills, experience and a trade qualification and has on the whole, in my view, a good work record. 184 I have not dealt in great length or detail with the evidence concerning his work record. However I have considered the evidence concerning it carefully. I regard the issues raised ( other than the previous DUI offences) as being of either insufficient gravity or seriousness to warrant any view being taken other than that Mr O'Hara has been a good and valuable employee of Council. His actual work record should not be a significant factor to be taken into account in considering his termination. Nor should it be a significant barrier to either reinstatement or re-employment. 185 That Council was prepared to keep him on after the two previous DUI offences would also tend to support that view. I appreciate that the loss of licence in 1997 for 18 months resulted in a final warning and a demotion for that period, nevertheless it was significant that Council retained his services given that the previous DUI offence had only been in 1995. 186 It clearly demonstrates that Council has been a responsible and fair employer that does consider the interests of its employees in a supportive way. 187 Council has obviously had a policy of sympathetically treating its employees who do unfortunately lose their licence and that is an entirely appropriate and laudable policy and to be commended. 188 Mr Klower has sought to draw the Commission's attention to specific examples of those instances and indicate that Mr O'Hara has not been treated favourably in comparison. However, there is no evidence that any of those instances involved employees who had lost their licence for either a second or indeed a third occasion during their employment with Council and had still been retained. Indeed it could be said that Mr O'Hara had already been given two chances, one more than extended to other employees, and was now seeking a third chance. ( Although I note that it was Mr O'Hara's evidence, and not challenged, that Brian Keys, his Supervisor, had lost his licence "a couple of times" and Mr O'Hara had driven him around at work on occasions.) 189 However having said that there are features of this matter that have troubled me greatly and created much difficulty in coming to a final decision as to what orders, if any, I should make. 190 As I indicated earlier the essential facts are not in dispute. On 21 May 2005 Mr O'Hara was into his seventh week on-call. He had been on call continuously for the previous six weeks - this oral evidence was not contradicted in any way. 191 This is one of the matters that causes me concern and will be commented on further. 192 He had been drinking heavily on the Friday night with Mr Vaughn-Appel. Initially Mr O'Hara could not in fact remember how many drinks he had had - but thought finally it was more than 7. Mr Vaughn-Appel said it was about 12 each. A combination of beers and bourbon and coke mixers. 193 Mr O'Hara could well have been called out that Friday night and would not have been capable of driving ( or even working). He said there were always two plumbers on-call and that he never drove if he was over the limit, he would get someone else to drive. However given the amount of alcohol that was consumed on that night and the duration and the time of the callout the next morning, he could well have been over the limit when he first drove out to Bowditch Place on the Saturday morning. 194 This evidence about never driving on a call-out if he was over the limit certainly suggests two things. Firstly that he had had occasion in the past to make judgments as to whether he was over the limit and therefore unable to drive. Secondly, and of greater concern, it would suggest that there were in fact occasions in the past when he had been over the limit whilst on call, admittedly he didn't drive, but he still went out on the call-out with the other plumber doing the driving. 195 I also note that in Mr Humphreys' evidence he deposed that " If I am on-call, I may have one or two drinks but I always make sure I stay within the legal limits because I know I might be called out to a job." 196 The concern I have referred to above in relation to Mr O'Hara's practice whilst on call is inextricably connected with the inherent problems I see in Council's call-out policy and practices. I shall return to those problems shortly. 197 There can be no doubt, based on the evidence of Council's own witness Mr Humphreys, that the work did go all day and didn't finish till between 7.30 and 8 pm. (8 pm according to Mr Humphreys). 198 There is also no doubt that Mr O'Hara was still on duty as at 5 pm when he left the site and went to his ex-wife's house and that he should not have consumed any alcohol at all at that time. If there was nothing cold in the fridge except the can of Cougar then water from the tap should have been the only drink he should have had. 199 I also accept Mr O'Hara's evidence (as supported by Mr Vaughn-Appel) that he had two cans of beer back at the depot after they purchased a six-pack on the way back there to drop off gear and equipment. 200 I fully appreciate that at this stage Mr O'Hara is still on duty and would possibly normally (but for his trip to the Police Station) have been actually paid the appropriate rate for the call-out (as distinct from the weekly on-call allowance) until such time as he arrived home. Unfortunately it was not clear from the evidence as to whether this was in fact the usual practice at Council (to pay from home to home for the actual call-out). 201 However this is where the "culture of drinking " referred to by Mr O'Hara becomes very relevant and the drinking of those two cans at the depot at the end of the work that day, in my very firm view, has to be examined against that background and the evidence of just what the practice was at Council prior to his termination. Fully appreciating that that practice has now been ceased on the direction of Mr Brooks ( the memo of 24 June 2005). 202 There can be no doubt whatsoever that there was a practice of many years standing at the depot (and for at least the 22 years that Mr Tyrrell had been there) of employees having not more than (it would appear) two cans of beer after work and that beer was bought communally by the men and kept on site. Mr Tyrrell occasionally participated in this practice as did Mr Humphreys who deposed " if I had to drive home, I would only have one or two beers after work. Everyone was sensible about it and didn't go overboard." 203 Mr Tyrrell confirmed that some other employees, apart from Mr O'Hara, who participated in this practice also had use of Council vehicles to drive to and from work. I can readily see where Mr O'Hara could think it was okay and normal practice to have a couple of beers at the depot at the end of doing the work on that Saturday, notwithstanding that he is still on duty, not only on that particular call-out but was still on call for the rest of the weekend. 204 Mr Humphreys also deposed that although Council's Code of Conduct stated that employees were not supposed to drink while at work, he recalled "that at my induction we were told to keep within the legal limits if we had to operate a Council vehicle." 205 I also note from the evidence of Mr Mackinlay (Exhibit 9, Annexure "E") that Mr O'Hara's timesheet records his normal start time as 7 am, but more significantly his normal finish time was 4.15 pm. It was Mr Humphreys' evidence (Council's own witness), in detailing the call-out arrangements, that not only was the "W & S team" rostered to be on call "one week out of every five weeks" but that when an employee is on call "they are so from 4.15 pm until 7 am on weekdays and 24 hours a day on weekends." This means in effect that for those years that the practice operated of having a couple of beers at the depot at the end of the workday, for those employees on call (and assuming 4.15 pm is the normal knock-off time) then at that time those employees, including Mr O'Hara, were in fact drinking whilst on call. 206 True it is that it is clear from the evidence of Mr Mackinlay and Mr Tyrrell that Council does not have a policy of zero tolerance in relation to drinking either whilst on duty or whilst driving a Council vehicle but rather a policy of an employee not being "under the influence" or making sure they remain "under the legal limit". 207 Mr Tyrrell expressed concern that Mr O'Hara had been drinking the specific amounts that he detailed on the Saturday as he was still on duty on those two occasions. The problem is that it appears to me that that is not precluded by Council's policies particularly whilst on-call or when driving a Council vehicle. 208 Obviously the alcohol consumed by Mr O'Hara on the Friday night was by any stretch of the imagination excessive and totally at odds with Council's policies. 209 However I consider that Council's polices in relation to alcohol in the workplace (based on the evidence and including the various relevant attachments to Exhibits 9 and 13) sends mixed messages to employees and places all of the responsibility on an employee to comply with those policies in circumstances where it is reasonably generally accepted in the community that an individual's reaction to alcohol can vary from individual to individual. 210 Certainly there are commonly understood benchmarks of two standard drinks and the equivalent in light beer etc. But what exactly would constitute being "under the influence"? Mr Mackinlay suggested it was being "over the legal limit". But just how is an individual employee to know that? Presumably there are an awful lot of people out there in the community that are not able to judge that given the publicity about those who drink and drive and I'm not referring here to those who are obviously well over the limit, probably know it and still take the risk of driving in that state. Mr O'Hara thought he was okay to drive and that he was not over the limit. He was obviously wrong. However as Mr Tyrrell rightly recognised he didn't intend to drive whilst over the limit. 211 It is appropriate at this stage to deal with the evidence from Senior Constables Mooney and Wilson. I have to say that having carefully considered the transcript, the subpoened Police documents and compared the evidence of Senior Constable Mooney with that of Senior Constable Wilson I have extreme reservations about the reliability of that evidence (specifically in relation to the evidence of Senior Constable Wilson) and I am not persuaded that Mr O'Hara's version of the overall events over the Friday night to Saturday night is more accurate and is anything but truthful. 212 Neither Officer had personal notes. Both relied on the Police Facts Sheet (Exhibit 6) which is a standard pro-forma form on which information is recorded within very prescribed parameters. In giving their evidence both used terminology such "would have asked" (rather than "I asked"), based on what their customary practice was. That is fine in relation to what might have been asked and I'm sure they've done that hundreds of times and such interviews become pretty standard. 213 The difficulty I have is, that as Mr Klower rightly points out, the job didn't finish at 12 noon at Bowditch Place. Even Council's evidence does not support that. There is also no mention of the drinking of the cans back at the depot or the can of Cougar at 5 pm. I have no doubt Mr O'Hara mentioned that. He was quite open and straight forward in telling Council about that in his letter submitted before the meeting on the following Tuesday. I can see no logic to him not telling the Police the same on the Saturday night. 214 Senior Constable Wilson made much of the fact that a 1.25 bottle of coke was mentioned and the mixing of bourbon and sitting by the road drinking. It was so unusual it stuck in her mind. If that was the case one wonders why there was no evidence at all about a coke bottle from Senior Constable Mooney who was present whilst Senior Constable Wilson was interviewing Mr O'Hara at Griffith Police Station. There was also no mention of that in the typed "Full Facts" forming part of the "Facts Sheet" that was typed by Senior Constable Mooney on the 22 May 2005. 215 It should be noted here that Senior Constable Mooney gave his evidence before Senior Constable Wilson gave hers and there was no opportunity to question him on those matters that she subsequently raised. But if Senior Constable Wilson found it such a stand-out one wonders why the other Police Officer present did not also find it so and remember that. 216 I consider the more logical explanation is that, with all due respect to Senior Constable Wilson, she has confused that aspect with what has been told to her by another Aboriginal man in another similar such interview or alternatively has just misunderstood what Mr O'Hara said about the mixers consumed on the Friday night and drinking the cans of beer back at the depot on the Saturday night (which was certainly alcohol consumed at the workplace or at work). 217 I also consider reasonable and logical, Mr O'Hara's explanation that he was referring to the alcohol consumed both the night before and that evening and summarising it as being about (or equal to) six beers since 12 midday. That seems to have been the response to her attempt to both question and summarise the alcohol (or effectively the alcohol) consumed between 12 midday and 8 pm. He indicated he was just pretty much just not disagreeing with her and just wanted to get out of there and get home. Given Mr O'Hara's background and prior police record and also not forgetting the very long day's work he had put in, I can entirely understand him taking that line. 218 At the time of the interview the results of the breath analysis were not available. Mr O'Hara did not think he was over the limit. If he had realised that he was he may well have taken more care and thought in his participation in the interview. He also did not see the Facts Sheet and was not able therefore to draw attention to any misinformation it contained. 219 Based on the witness statement of Mr Humphreys and the evidence of Mr Vaughn-Appel it certainly does not appear remotely likely that any employee, let alone Mr O'Hara, had the luxury of just sitting by the road mixing bourbon with a large bottle of coke and drinking it whilst everyone else was working apparently reasonably flat out fixing the burst water main. Mr Humphreys said he also had occasion to drive back and forth to the depot for equipment etc just like Mr O'Hara and would clearly have been in a position to see Mr O'Hara doing that and also would surely have smelt alcohol on Mr O'Hara if he had consumed the quantity of alcohol as written on the Facts sheet between the hours of 12 midday and 8 pm and said something about that to someone. Frankly that evidence is just ludicrous. 220 There is no other evidence that would support any proposition that Mr O'Hara consumed alcohol at any other time on the Saturday other than those two occasions he freely admitted to. 221 It was more than obvious during proceedings that Mr O'Hara is a pretty reticent and somewhat inarticulate man. He struck me though as very honest but someone who literally only responded to precisely what was asked and didn't volunteer anything in any loquacious, running off at the mouth sort of way. The classic example is his response as to why he didn't put anything in his witness statement about the events of the Friday night - because he was asked to write about what happened on the Saturday and took that literally. I also note his apparent inability to complete documentation without the assistance of his either sister or the Union and indeed the fact that he didn't check or query or question any documentation either put in on his behalf or by Council in reply. 222 He has certainly not helped his own cause in this whole sorry saga and certainly did not even give himself any sort of even chance in the interview on the 23 May and even possibly the letter that was supposed to put forward the extenuating circumstances that Council should take into account in considering what disciplinary action it might take against him. The letter did not address issues concerning call-out or Council's policies. 223 There is no doubt in my mind, notwithstanding that there is no considered or expert evidence available to assist the Commission, that going without food that Friday night whilst consuming all that alcohol and then going without food all day Saturday would have contributed to the affects of the alcohol on Mr O'Hara. 224 Senior Constable Mooney spoke about alcohol being eliminated from a person's system over time. On Mr O'Hara's evidence the first time he went to the toilet during the work day was at 5 pm and on his evidence did not appear to have drunk much water during the day. He wasn't therefore continually drinking water and continually flushing out his system during the day. This is a very serious and concerning aspect of Mr O'Hara's lifestyle that he needs to address in the future. 225 He had also worked an almost eleven hour day without a break. This long working day was a matter that Mr Tyrrell indicated Mr O'Hara should mention in his letter but he didn't. 226 I have not referred to the issue of the passenger that Mr O'Hara picked up as they were driving away from the depot that night. It was a clear breach of Council's policy and a fact that Council was not aware of at the interview so Mr O'Hara was not asked about that. However it is apparent that that issue on its own, in the absence of the DUI conviction, would not have resulted in Mr O'Hara's termination, therefore I do not view it as a major issue for my consideration. However I fully expect Council to reinforce that policy with its employees in the future. 227 One matter that has concerned me is whether or not Mr O'Hara deliberately concealed from Council the amount of alcohol he drank on the Friday night or that he might still have had alcohol still in his system on the Saturday. He said he told Mr Tyrrell about that. Mr Tyrrell denied that and Mr Mackinlay also didn't know of it. It would be pure speculation to consider whether instead he told his supervisor Mr Brian Keys who was the first person he reported the incident to on the following Monday. 228 After careful consideration of Mr O'Hara's evidence and demeanour as a witness I am prepared to give him the benefit of the doubt that he did not deliberately set out to deceive Council. It was part and parcel of his poor communication skills and what appears to be passivity in conflict situations. Also understandably no-one actually appears to have asked him if he had been drinking as well on the Friday night otherwise that information may have been forthcoming. Mr O'Hara generally seems to answer direct questions put to him but not go beyond that. 229 I also note that Mr O'Hara was very honest and openly acknowledged in his letter to Council that he had in fact, on the Saturday, consumed a can of Cougar at 5 pm at home when he went there to go to the toilet as well as the two cans of beer back at the depot. 230 I also consider that Council must in fact bear a large part of the responsibility for what ended up happening as a result of the events of both the Friday and the Saturday night in relation to the drinking of alcohol. 231 That Mr O'Hara had been on call continuously for six weeks and was into his seventh week is a serious cause of concern. This was contrary to Mr Humphreys' evidence about how the call-out roster was to work - that is, one week in five. That is a reasonable roster. What is totally unrealistic, and to that extent unreasonable, is for an employer to leave an employee continuously on-call over seven weeks and expect that in all that time (which includes 24 hours a day on the weekend) an employee will remain under the legal limit at all times. That does not appear to have ever been an issue or eventuality that was considered and appropriately dealt with in Council's alcohol policy. Indeed it was probably an OH & S issue that was never addressed properly. 232 I really find it unbelievable that any employer could even consider expecting your average male employee to spend that period of time never having more that one or two standard drinks (or the equivalent thereof) on any night or weekend or that such an employer might not even stop to consider the implications of such a lengthy period of call-out and what was more than likely to occur with the average bloke. Having a few drinks with workmates or friends at the end of the working week or on a social basis on the weekend with family and or friends is pretty standard across all walks of life and levels of employment. 233 There was evidence from Ms Ankers as to Council's very commendable work in and contribution to the local community in relation to alcohol abuse and education. 234 I consider that Council needs to reflect those very commendable efforts to a greater degree internally in relation to its own employees. Firstly in relation to adopting a zero tolerance policy for drinking whilst driving a Council work vehicle or on work premises. Secondly in relation to reviewing the practice concerning the call-out roster and the issue of alcohol consumption whilst on call and not totally leaving all the responsibility on employees without guidance or assistance. (Distinctions should obviously and relevantly be made in relation to vehicles provided for private usage by Council employees) 235 I also have a concern that Mr O'Hara did not have a real opportunity to access the Union representation and assistance he was entitled to before he was terminated. This may have assisted in him being able to put forward a better and more sustainable case to Council that termination not take place. 236 Mr O'Hara clearly did not expect to be terminated (or "sacked" as he put it). The Union Delegate Mr Turner was already in the room when he arrived for the interview. This had apparently been arranged by Mr Keys. However Mr O'Hara did not have the opportunity of speaking to him first or of getting advice or assistance from Mr Fayle, his Union Organiser. Given what appears to have been a reasonable and longstanding industrial relationship between Mr Fayle and Council I would not have thought it unreasonable for them to have contacted him about Mr O'Hara. Council would say no doubt that that was Mr O'Hara's responsibility. However in the circumstances, particularly where Mr O'Hara was not expecting termination, I can entirely see where it might not have even occurred to either Mr O'Hara or indeed Mr Turner that it might be a good idea to get Mr Fayle involved in the disciplinary process. 237 I also note that, as Mr O'Hara pointed out in evidence, the previous formal warning he received only said disciplinary action "may result", no mention was even made of such action involving the possibility of termination. In my view it was not unreasonable for him to be taken by complete surprise that termination would occur (and for him to consider that he had in fact been sacked by Mr Mackinlay at the meeting) and to be singularly unprepared for that eventuality as evidenced by his lack of any real contribution to the interview process. That whole process that day was perhaps too hasty and should have been given more time and the opportunity for considered Union involvement. 238 Byrne & Anor v Australian Airlines is also the oft quoted authority for the principle that a termination can be procedurally as well as substantively unfair. There are numerous decisions of this Commission that have found that whilst a termination was not substantively unfair it was so procedurally flawed and unfair as to warrant the Commission's intervention on that basis alone as per for example Antonakopoulos v State Bank (1999) 91 IR 385. 239 The concerns I have addressed above do raise the issue of the process being, to a degree, unreasonable and hence procedurally unfair and does become just one of the factors that I take into account in determining whether, in all the circumstances termination of Mr O'Hara was too harsh and warrants the intervention of the Commission. 240 Council indicated that it did not exercise its right to summarily dismiss Mr O'Hara for misconduct but chose instead to pay him five weeks pay in lieu of notice. However it is still relevant to consider the issues that should be taken into account when considering whether such a termination is justified (even where a notice payment in made instead). 241 In New South Wales Fire Brigade Employees (on behalf of Natoli) v New South Wales Fire Brigade [2005] NSWIRComm 440 Sams DP identifies at para. 218 the four questions that arise for consideration in a case concerning summary dismissal for misconduct:- 1. Was the conduct against the dismissed employee proven? 2. Did the seriousness of the conduct justify summary dismissal? 3. Did the conduct constitute a fundamental and wilful repudiation of the contract? 4. Were mitigating factors taken into account? 242 There is no doubt on the evidence that the misconduct occurred and that it was serious enough to justify summary dismissal if Council had chosen to exercise its right to do so. 243 However it is the last two questions posited in Natoli that cannot be answered in the affirmative. 244 On the issue of repudiation of the employment contract Sams DP observed in Natoli at para. 255: " 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 intent by the employee which strikes at the very core of the employment relationship." 245 There was no evidence to establish any wilful or deliberate intent by Mr O'Hara to drive a Council vehicle whilst over the legal limit, quite the reverse in fact. There is also the evidence and issues raised by Council's policies and practices in relation to being on call and alcohol as I have addressed above which should be taken into account when considering intent. 246 Whether there has been a repudiation of the contract of employment by the terminated employee is also a relevant factor to take into account when considering the practicability of reinstatement or re-employment of that employee. 247 In coming to consider the fourth question posited in Natoli I am firmly of the view that not all mitigating factors were appropriately taken into account by Council. Certainly Mr O'Hara's lengthy service was considered. However Council did not have before it for consideration those other relevant issues and facts which I have considered, some of many of which have only come to light before the Commission during these proceedings. 248 In Natoli Sams DP also considers the issue of harshness of penalty citing the various relevant authorities which I have also considered viz. Byrne & Anor v Australian Airlines (at p.72); Electricity Commission of New South Wales t/as Pacific Power v Crump (1993) 48 IR 296 (at p.302); Little v Commissioner of Police (No 2) (2002) 112 IR 212; Busways v Johnson (1994) 55 IR 255 and Wells v Commissioner of Police (2000) 100 IR 106. 249 The meaning of the individual terms in "harsh, unjust and unreasonable " were also considered in detail Sams DP in Sams V Contact Point International Pty Ltd (2001) NSWIRComm 18 and that decision has been applied in other decisions of this Commission. I also adopt those considerations with particular reference to the term "harsh". 250 After very carefully considering all of the evidence, the submissions and the relevant authorities, I have decided that the termination by Council of Mr O'Hara, in all the circumstances, was too harsh a disciplinary penalty. 251 In coming to that decision I have taken the following factors into account: * Mr O'Hara's lengthy service with Council and his good (in my view) work record. That service covers his entire adult working life and commenced with an apprenticeship and included the acquisition of his trade qualifications. Council acknowledged that he has skills, and valuable experience and knowledge of Council's operations. * Mr O'Hara's cultural background. * Mr O'Hara had been continuously on call for the previous six weeks and was into his seventh such week. * Prior to Mr O'Hara's termination there was, in my view, a "culture of drinking" ( since banned) in relation to drinking after work at the depot. * Such drinking at the depot took place when Mr O'Hara as well as other employees would have moved into on call hours after his normal finishing time of 4.15 pm. He would also have been in on call time when driving home on those occasions in the Council work vehicle as would any other employee who also on call and participated in the practice and then drove a Council vehicle. * Council's policy on alcohol placed too much onus on employees, in the circumstances of the on call practices, to stay "under the legal limit " at all relevant times. * In my view Council's policy and practices in relation to being on call do not spell out in sufficient detail just what employees' obligations are to keep within Council policy in relation to the consumption of alcohol whilst on call. * Council policy permitted employees to drink alcohol and drive Council work vehicles but required them to make judgements as to whether they were "under the legal limit" and safe to drive. * Mr O'Hara was truthful and honest in his admissions as to the the alcohol he consumed on the Saturday as well as the location of that consumption. * That Mr O'Hara did not eat any food between the Friday night and Saturday night was a factor likely to have impacted on the affects on him of the alcohol consumed on Saturday, as would the amount of alcohol consumed on Friday night. * The previous written warning received by Mr O'Hara did not indicate in sufficient detail that any further DUI suspension could result in termination. The reference only to "may result in disciplinary action" would not have sent a sufficiently strong message that termination was a very real and likely result. * The absence of more thorough Union representation during the disciplinary process did not assist Mr O'Hara in putting all the factors that should be taken into account before Council. 252 Having determined that termination was too harsh a penalty in all the above circumstances it follows that I consider it appropriate to exercises my discretion and order that Mr O'Hara be reinstated to his position of Journeyman Plumber with Council. 253 The period since his termination will essentially serve as a period of suspension as no back dating of such reinstatement would in my view be appropriate. 254 Mr O'Hara was able to secure casual employment for much of that time. 255 As at the date of the hearing Council had not re-filled the position following the resignation of a person recently appointed to it on a two year contract basis. Council has always been aware that Mr O'Hara actively sought reinstatement. 256 Mr O'Hara would have been entitled to get his licence back on the 21 May this year after the twelve months suspension had elapsed. The orders I make will be conditional on him having regained his driver's licence. 257 There was no evidence before the Commission that re-instatement was not practicable due to any breakdown in the relationship between the parties or due to any other impediment. Indeed the evidence showed that Mr O'Hara had a good working relationship with his supervisors. The only real issues raised were the practical problems for Council if Mr O'Hara was reinstated and did not have a drivers licence. The terms of the orders to be issued do not raise those practical difficulties. 258 I do not therefore believe that the employment relationship has been adversely affected so as to prevent reinstatement which is the primary remedy under the Act. 259 In reinstating Mr O'Hara I would expect him to be placed on a final warning that any further loss of licence due to a DUI offence ( whether in a Council work vehicle or not) would result in termination. In any event Mr O'Hara must surely appreciate by now that any further DUI conviction will in all likelihood result in him going to goal and that would effectively bring to an end his employment. 260 I stress that I would not expect that work issues that might normally attract a verbal or written warning would automatically result in termination simply because he was on a final warning. Obviously that would not apply in relation to instances of serious misconduct. 261 Essentially the Commission is giving Mr O'Hara another chance, throwing him a lifeline as it were. It will be up to him to make the most of this opportunity. 262 The period that has elapsed between his termination and reinstatement effectively becomes a thirteen month suspension without pay. It represents an alternative disciplinary measure. It should also send a message to other employees that such matters (DUI convictions) will be viewed seriously by both Council and the Commission and it is only due to the very particular circumstances of Mr O'Hara and the factors I have outlined above that has led the Commission to being prepared to exercise its discretion and intervene in Council's decision to terminate Mr O'Hara. 263 Mr O'Hara must seek counselling in relation to his drinking ( indeed Mr Vaughn-Appel may also have a problem that should be addressed.) Mr O'Hara must eat regularly. Mr Klower indicated that the Union was prepared to assist as I'm sure would the family members who were present during proceedings. I would also hope Council would assist not only Mr O'Hara but may consider checking whether other employees may also require assistance of some kind in relation to alcohol. 264 Mr O'Hara also needs to be mindful in the future that it is totally against Council policy to give lifts to members of the public and that should be strictly observed. 265 Whilst I appreciate that there is only an unfair dismissal application before the Commission for consideration I believe it behoves me to make recommendations to not only Mr O'Hara but also Council on matters that have come to my attention during proceedings and that have given me cause for concern. They are obviously not binding but I would ask that Council give them careful consideration. 266 I recommend that Council review its policies in relation to alcohol in the workplace and whilst driving Council work vehicles and give consideration to introducing a zero alcohol policy. The USU also indicated a preparedness to assist in that process in consulting with its members. 267 I also recommend that the on call policy be reviewed and employee obligations in relation to alcohol be spelt out in detail. The roster should also be reviewed to ensure that employees are not rostered for unrealistic periods of time. 268 I propose to order the reinstatement of Mr O'Hara as from the date of this decision, with service not to have been broken but the period from termination to reinstatement not to count for accrual purposes in relation to any forms of leave. In other words, to make it clear, that period would be treated in the same way as leave without pay would for the purposes of long service leave but applied in the same way to annual leave. He will have to serve twelve months before he accrues any annual leave entitlement but his length of service will not be broken. ORDERS 269 The Industrial Relations Commission of New South Wales orders that: 1) Pursuant to s89(1) of the Industrial Relations Act 1996, the respondent Griffith City Council, shall reinstate the applicant, Mr Shane O'Hara, to his former position of Journeyman Plumber on a final warning in relation to any further DUI conviction. 2) Pursuant to s89(4) of the Industrial Relations Act 1996, Mr O'Hara's period of employment with Griffith City Council shall not be taken as having been broken by his termination on 27 May 2005, however the period that has elapsed between that date and the date of reinstatement shall not count for purposes of accrual of any form of leave. 3) Reinstatement is dependent upon Mr O'Hara holding a current driver's licence. 4) In respect to Order (1), pursuant to s89(8) of the Industrial Relations Act 1996, the parties are to confer as to the terms of the reinstatement of Mr O'Hara, provided that such reinstatement shall occur within 14 days of today's date. 270 These proceedings are now concluded. Elizabeth Bishop Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.