Industrial Relations Commission of New South Wales CITATION: Phillip Brunt and Carlton and United Beverages Limited - Fosters People Limited [2007] NSWIRComm 17 APPLICANT Phillip Brunt PARTIES: RESPONDENT United Beverages Limited / Fosters People Limited FILE NUMBER(S): 175 of 2005 CORAM: Sams DP Termination of employment - unfair dismissal - incident of misconduct - drinking alcohol at work and theft of company property - initial finding of unfairness - orders of reinstatement without occupational health and safety duties - leave to appeal and appeal - stay orders - appeal upheld as to relief ordered - findings of unfairness not disturbed - remittal for further hearing as to relief - discretion of Commission - whether positions available - restrictions on applicant - medical reports - whether reinstatement or re-employment impractical - trust and confidence in employment relationship - undertakings not to drink alcohol and undergo random breath tests - payment for lost remuneration - costs. CATCHWORDS: Held; reinstatement or re-employment primary remedy - respondent large employer with three metropolitan sites - applicant capable of performing wide range of duties - applicant's 18 years unblemished record - applicant's work performance not criticised - no evidence other employees cannot work with applicant - not appropriate to make orders as to undertakings on drinking and random breath tests - reinstatement impractical - re-employment ordered on terms no less favourable than would otherwise have applied before dismissal but on conditions - position may include occupational health and safety duties - continuity not broken - payment of part lost remuneration less other earnings - costs application by notice of motion. LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Bench v NRMA [2006] NSWIRComm 1133 Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 Carlton and United Beverages Limited v Phillip Brunt [2005] NSWIRComm 338 Carlton and United Beverages Limited v Phillip Brunt [2006] NSWIRComm 98 CASES CITED: Commissioner of Police v Dobbie [2006] NSWIRComm 285 Griffith City Council v USU (on behalf of O'Hare) (No 2) [2006] NSWIRComm 302 Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Phillip Brunt v Continental Spirits Company [2005] NSWIRComm 1133 HEARING DATES: 16 October 2006; 3 November 2006 DATE OF JUDGMENT: 13 February 2007 APPLICANT Mr S Prince of Counsel Solicitor: Mr W Szekely Szekely & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr A Moses of Counsel Instructed by: Mr T McDonald Employers First JUDGMENT: - 26 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 13 February 2007 Matter No IRC 175 of 2005 Phillip Brunt and Carlton and United Beverages Limited / Fosters People Limited Application by Phillip Brunt re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 17 1 This matter comes before me as a remittal from the Full Bench of the Commission in Carlton and United Beverages Limited v Phillip Brunt [2006] NSWIRComm 98. It is necessary to give a brief outline of the background to the present proceedings. 2 Mr Phillip Brunt ("the applicant") was dismissed by Carlton and United Beverages Ltd, now Fosters' People Limited, ("the respondent") on 23 December, 2004, after 18 years service. At the time of his dismissal, the applicant was the Occupational Health and Safety and Security Officer at the respondent's Botany warehouse and distribution centre. 3 On 17 December, 2004, the applicant was conveyed home from work by a colleague as he was intoxicated. He had drunk a 375ml bottle of vodka after finishing work. Shortly thereafter, the applicant's concerned wife had contacted a company supervisor, Mr Carabetta, seeking the respondent's assistance with her husband's drinking problem. The respondent conducted an investigation of the matter which involved two disciplinary meetings; the result of which was the applicant's dismissal for misconduct. The misconduct was said to be the applicant's breach of the respondent's policy in respect to the unauthorised consumption of alcohol on site and theft of the respondent's product; namely, the vodka. The applicant later admitted an earlier occasion where he had drunk a similar quantity of the respondent's product. 4 The applicant's dismissal was the subject of a Pt 6 Ch 2 application to the Commission in which he sought reinstatement to his former position. The application was heard and determined by Macdonald C. In his decision of 26 August, 2005: Phillip Brunt v Continental Spirits Company [2005] NSWIRComm 1133, the Commissioner reinstated the applicant to "the position he held at the time of his summary dismissal, but without his occupational health and safety duties." Consequential orders were also made concerning payment of lost remuneration and continuity. It is not appropriate, at this stage, to canvass the background and conclusions to the Commissioner's decision, suffice to observe that the Commissioner had accepted the applicant's claim that his drinking problem had been brought upon by stress at work relating to his occupational health and safety duties and a difficult relationship with a supervisor at the site, Mr Jagger. However, the respondent in the present proceedings has sought to canvass agreed matters in the proceedings at first instance as a basis for arguing that the trust and fidelity of the employment relationship cannot be restored, thereby making reinstatement or re-employment of the applicant impractical. I shall return to these issues later. 5 On 7 September, 2005 the respondent lodged an application for leave to appeal and an appeal of the Commissioner's decision and sought a stay of the decision pending the outcome of the appeal. A stay was granted on conditions by Schmidt J on 19 September, 2005: Carlton and United Beverages Limited v Phillip Brunt [2005] NSWIRComm 338. One of the conditions was the payment of 50 per cent of the money order of the Commissioner with the amount to be repaid in the event the appeal was successful. This payment amounted to about four months pay. However, due to an oversight by the respondent, the full amount of eight months pay was paid to the applicant. This payment will become relevant to my later findings in this matter. 6 The appeal decision was published on 9 June, 2006. Leave to appeal was granted and the appeal was upheld in respect to the remedy only and the reinstatement orders of the Commissioner were quashed. It is to be noted that the practical effect of the Full Bench orders was that the finding of the Commissioner that the applicant's dismissal was harsh was not disturbed on appeal; the Full Bench accepted that the Commissioner's findings in this regard were reasonably open to him. Thus, this decision will deal only with what remedy, as a matter of discretion, should be ordered by the Commission in the case. THE EVIDENCE Applicant's evidence 7 The applicant seeks either reinstatement to his former position with conditions, including that he not be required to undertake his former high level occupational health and safety duties or re-employment to another position which is available and which is suitable. The applicant described his duties at the time of his dismissal as consisting of health and safety (30 per cent), dispatch / warehouse (49 per cent), and security (21 per cent) giving a total of 35.85 hours a week. 8 The applicant believed that he was capable of performing work at either his former site at Botany or the respondent's other facilities at Campbelltown or Kent Street, Sydney. He further believed, having been told by friends who work there, that work was available at these sites in: a) dispatch duties; b) warehousing duties; c) production forklift duties; d) security work; e) first aid duties; f) health and safety duties not involving high level office work or meetings. 9 The applicant said that at the present time, he had not had any panic attacks since 2004 and his alcohol consumption was negligible. He believed he was now fully aware of the signs of his earlier problems and undertook to seek early help if those problems resurfaced. He added that he no longer feels that working with Mr Jagger would put his health at risk. He gave undertakings not to drink alcohol during the working week and submit to random breath tests (later giving an undertaking not to drink any alcohol at any time). 10 Dr Peter Klug, a Forensic Psychiatrist saw the applicant on 30 July and 7 September 2006. His report was attached to the applicant's affidavit. Dr Klug concluded as follows: In summary, Mr Brunt gave a history of panic attacks in 2003 and 2004 (rather than a panic disorder) and probable alcohol dependence from 2002 to 2004. There is a history of alcohol abuse in his youth and early adulthood. His current alcohol intake, according to the history Mr Brunt provided at interview, is negligible. There is no current evidence of a psychiatric disorder. He is currently capable of functioning in the workplace. He said however that if he were to return to CUB Botany that he would choose to work in Dispatch but without the OH & S component which he had previously found stressful. It is my view that he is capable of working in despatch but given his history of not working in an OH& S capacity. Whether work related stresses gave rise to his alcohol dependence between 2002 and 2004 is difficult to know with certainty. It is possible that work related stresses may have contributed to his alcohol dependence in that period. 11 The applicant is currently employed at Visa Australia Ltd receiving $37, 000 pa, plus 9 per cent superannuation. His remuneration before dismissal was $70, 170 pa, plus 12 per cent superannuation. The applicant believed he was denied promotion at Visa after a newspaper article appeared on 19 June, 2006 following the decision in his appeal case. He claimed an unnamed manager at Visa had told him the article was known to management, that his future with the company was limited and perhaps he should seek employment elsewhere. He felt shaken and distressed by this incident. 12 In further evidence in chief, the applicant was taken to the evidence of Mr Cunneen, Human Resources Advisor for the respondent. He agreed that he had received annual individual assessments, but had not seen the document for the period ending 30 June, 2005. The applicant agreed that the duties he performed prior to his dismissal were those described by his supervisor at the time, Mr Carabetta, who gave the following evidence in the proceedings before Macdonald C: The level of administrative work associated with the Applicant's role included his chairing of the Safety Committee meetings; preparing the safety committee minutes; putting the safety committee minutes on the notice board; tracking safety actions and to co-ordinate and maintain a register on an excel spreadsheet. I always assisted the Applicant with these tasks. In addition, the Applicant was required to pay invoices of a standard nature - essentially someone had to sign off certain standard invoices and this task was delegated to the Applicant. In terms of the despatch function of the Applicant's role, the Applicant had to check paperwork to loads from approximately 6:45am until 11:00am, as required during the hours. The Applicant was then to be in the office, basically for the rest of the day. The Applicant's scheduled finish time was around 3:00pm but he would sometimes leave at 4:00pm or 4:30pm after spending some time in the recreation area or office. Mr Carabetta had also said: The issues that appeared to concern the Applicant included generating spreadsheets, replying to emails and time management. The Applicant did not appear to struggle with anything out of the ordinary. 13 In cross-examination, the applicant was asked about his letter to the General Manager, Mr John Murphy in which he claimed he was attending counselling for his drinking problem. He now acknowledged that this statement was not entirely correct. He said he had intended going to counselling. He claimed he had been considering counselling before his dismissal. However, in cross-examination, he couldn't recall telling anyone at the company of his intentions and he had not actually sought counselling before the incident which led to his dismissal. 14 The applicant said he had been suffering from stress because of Mr Jagger's "pushing" him during meetings and this had led to his drinking problem. The applicant deposed that while he had earlier found it very hard to work with Mr Jagger, it was no longer such an issue as he was a different person and he could now deal with any difficulties with Mr Jagger. The applicant didn't regard his drinking of the company's property as theft; rather it was a consequence of his drinking problem. 15 The applicant was questioned about what he had told Dr Klug about his drinking problem. He agreed Dr Klug had concluded that his description of his drinking habits was inconsistent with an alcohol problem. He explained that he had been ashamed of his problem and had not found it easy to tell Dr Klug of his problem. However, he had believed his drinking had become worse in 2004 and it was about that time that he had considered seeking help. The applicant said he and his wife had discussed using the Company's Employees' Assistance Program (EPA) about a month before the incident in December, 2004. He had given his wife permission to disclose his problem to Mr Carabetta that night. 16 The applicant had told Dr Klug he had not sought any assistance for his drinking problem after his dismissal, because he had dealt with the problem in his own way and now drank very little alcohol. He didn't consider that he was suffering from any psychiatric problem and wanted to return to his former employment for financial reasons and because he loved working there. He had told Dr Klug of the adverse newspaper article of 19 June, 2006 and of his earlier panic attacks, but he had experienced no panic attack since September 2004. At the time he had not seen a psychiatrist, but his heart had been checked. 17 The applicant was asked whether he had discussed with his wife on the night of the incident that she would call Mr Carabetta. It wasn't a major conversation, but they had discussed getting help. He was asked why he couldn't recall any such conversation with his wife when he gave evidence before Macdonald C. He believed he was now a "bit more switched on". In re-examination, he explained that he probably had two short conversations with his wife that evening, but couldn't recall the details. 18 The applicant stated that he was very sorry for his drinking problem in 2004 and for the incident on 17 December, 2004. He would never do it again. It was wrong and it had affected his whole life. 19 The applicant was shown his own doctor's entry for 7 April, 2004 which records him having "lots of stress at work and now he is starting to drink". The applicant said he was now prepared to give a commitment to drink no alcohol at any time and undertake random breath tests in order to get his job back. 20 The applicant's wife, Mrs Lisa Brunt, said that when her husband had taken up the health and safety role, he had found it increasingly difficult. The legislation and office work hadn't suited him and he had a deteriorating relationship with Mr Jagger. Her husband had developed a drinking problem between 2002 and 2004 which she believed was due to stress at work. She had noticed a difference in his behaviour and he had told her he was stressed at work. Mrs Brunt said that after he was dismissed her husband was severely depressed. However, he did not turn to drinking. He started exercising and was planning to go to a counsellor. However, he had tremendous success on his own and hadn't needed to. 21 Mrs Brunt said that at the moment, her husband might have two or three glasses of wine when friends come over. He does not get drunk and she would know if he was drinking alone. As she had become an expert at knowing when he had been drinking, Mrs Brunt said she would be happy to give an undertaking to keep an eye on her husband and if she noticed any problems to inform his doctor. 22 In cross-examination, Mrs Brunt was asked about her conversation with her husband on the night of the incident. She had told him he needed counselling and she was going to get help. She couldn't recall if she actually mentioned she would call Mr Carabetta. However, she told her husband the next day that she had called him. 23 Mrs Brunt described her husband's drinking after September 2004. He was drinking very heavily two or three times a week and would become heavily inebriated. She knew when he had been drinking as she had arrived home after him. However, since her husband's dismissal, he has had no re-occurrence of his drinking problem. 24 Mrs Brunt said that when she had worked for the respondent she had found Mr Jagger to be aggressive and if he felt someone was a fool he would treat the person very harshly. She referred to a very bad relationship Mr Jagger had with another manager, Mr Sam Butha. Respondent's evidence 25 Mr David Cunneen is the respondent's Human Resources Advisor. He gave evidence in the earlier stay proceedings in which he claimed and maintained that the applicant's health and safety duties comprised about 60 per cent of his work. He disagreed with the applicant's estimate that his dispatch / warehouse duties comprised 49 per cent of his work. Mr Cunneen said that if dispatch duties were the applicant's principal function, he would be classified as a Grade 3B under the relevant award and workplace agreement. This would result in a reduction of earnings of about half he had received when engaged primarily in the health and safety role. 26 Mr Cunneen deposed that it would be impracticable to reinstate or re-employ the applicant for the following reasons: (a) The applicant was only ever employed at Botany and not at Campbelltown or Kent. (b) The respondent rejects entirely any notion that Mr Jagger's behaviour was inconsistent with its anti-harassment and other relevant policies and there was no reason for him to change his management style. There had been an irretrievable breakdown between the applicant and Mr Jagger. Botany was a small site which required teamwork to operate effectively. (c) The reason for the applicant's dismissal and the fact that he was drunk could create future problems as the site was particularly hazardous and fast-moving. (d) The circumstances surrounding the applicant's dismissal were fundamentally at odds with the health and safety culture at the plant and the need for the HSE officer to show leadership and induct new employees. (e) The applicant could also constitute a safety risk to himself and others. 27 Mr Cunneen responded to the applicant's claims concerning available work as follows. The despatch role had been significantly diminished (by in excess of 70 per cent). This information had been obtained from Mr Jagger and Mr Van Dijk - Despatch Team Leader. Production and distribution functions are not formally separated at Botany and there had been no change to requirements. Another employee is performing the applicant's former health and safety role particularly well. There is no intention to employ anyone to replace a dismissed employee at Campbelltown. 28 Mr Cunneen said the respondent was particularly concerned that the applicant does not accept responsibility for his actions. If he was reinstated the reasons for his drinking problem and panic attacks would still be present. In further evidence in chief, Mr Cunneen deposed that the respondent had no policy in respect to random breath testing and no equipment or facilities to conduct such tests. 29 Mr Cunneen said that as a result of a recent review of the Botany operations, the site was to be sold and its bulk production moved to Queensland. The sale would occur in the third quarter of 2007. Existing employees would be transferred to other sites or made redundant. He confirmed that this would include the applicant, should he be reinstated by the Commission. 30 In cross-examination, Mr Cunneen said he had obtained information on the Botany site's despatch / warehouse requirements from the individual performance management documents and advice he had received from the local management. He was shown Mr Carabetta's statement in the earlier proceedings which disclosed that the applicant had worked until 11:00am on despatch functions - not 8:00am as suggested by Mr Cunneen. 31 Mr Cunneen said that while the respondent accepted and would comply with all decisions of the Commission, it did not agree with Macdonald C's comments about Mr Jagger's behaviour. As a result, Mr Jagger had not been counselled or reprimanded in any way. However, Mr Cunneen said that the Fosters' policies covering harassment and bullying would obviously apply to the applicant, if he was to be reinstated. 32 Mr Cunneen was shown the Fosters' Group Financial Review from the 2006 Annual Report. This disclosed that "volume in each of the cider glass spirits and ready to drink categories increased during the period" and "the non beer alcohol beverage portfolio grew strongly with revenue increasing 7.8 per cent". He agreed that many of these products were produced through Botany. However, this distribution will eventually be from a warehouse distribution facility being built at Rosehill which will be run by a third party. 33 Mr Cunneen was shown an expression of interest document for positions within the Fosters' Group. He agreed that this created a database of persons eligible for positions within the Group. 34 Mr Cunneen was asked about the person currently performing the HSE duties at Botany, Mr Markovic. He said that Mr Markovic was performing some of the applicant's former duties, as well as some of the functions of blender. Other HSE duties are split between the management team and this provides greater flexibility. Mr Cunneen was asked about Mr Jagger's earlier statement concerning the applicant's former duties. Mr Cunneen said he had no reason to doubt that the applicant's HSE role had evolved and was never full time. 35 Mr Cunneen was asked if the duties identified by the applicant as ones he could perform, could be allocated to him. These included site inductions and managing induction records, site safety audits, conducting or assisting in risk assessments and actioning outcomes, ordering safety equipment and dealing with suppliers and first aid. Mr Cunneen said that in theory, the applicant could perform those duties, but they would have to be reviewed to identify what was required. 36 Mr Cunneen was questioned about his claim of a reduction in invoices at Botany from 50 to 60 a week to two and conceded that this did not include transfers of product to other warehouses. He conceded that the majority of the movements at Botany would be intercompany transfers. These transfers would also need to be recorded and checked. 37 Mr Cunneen emphasised that the company does not have a policy, procedure, equipment or personnel to conduct random breath tests. However, he did not deny that such equipment could be bought or personnel trained to conduct such tests. At the moment, however, if someone appears to be alcohol impaired he or she are counselled. SUBMISSIONS For the applicant 38 Mr S Prince of counsel submitted that the Commission has a broad range of discretionary powers available to remedy the unfairness of the applicant's dismissal. The applicant had an otherwise long and unblemished record of employment, save for the one instance of misconduct. The circumstances of his dismissal were most unfortunate and he was genuinely sorry for the events which had occurred. His credibility was never in doubt. There was no reason to doubt his ability to work with Mr Jagger as Mr Jagger bore him no ill will. In any event, it was Mr Carabetta who had dealt with the applicant on a day to day basis. 39 Mr Prince highlighted the increase in volume of product moving out of the site which was required to be checked - a task the applicant could perform. The applicant's evidence was consistent with Mr Carabetta's and Mr Jagger's evidence as to the proportion of despatch duties. While Mr Jagger did not give evidence, he was in the best position to know whether any changes to the operation made reinstatement of the applicant impractical. Against this, there were serious holes in Mr Cunneen's evidence. 40 Mr Prince submitted that the Commission could make an assessment of the duties available to the applicant based on the evidence of what duties he could undertake, if he was reinstated. These duties included some health and safety duties, but not attending monthly occupational health and safety meetings as Chairman or preparing reports. This was an area in which he would be in contact with Mr Jagger. Other duties included dispatch and warehousing, production, forklift, security and first aid. 41 Mr Prince emphasised that the evidence had revealed that there is a degree of flexibility amongst staff in respect to occupational health and safety issues. Orders could be formulated by the Commission to give effect to reinstatement, on conditions and with modification, including recommendations concerning undertakings by the applicant not to drink alcohol and for him to be subject to random breath tests: See Griffith City Council v USU (on behalf of O'Hare) (No 2) [2006] NSWIRComm 302; Commissioner of Police v Dobbie [2006] NSWIRComm 285. 42 Mr Prince put that compensation was not an appropriate remedy in this case. Reinstatement or re-employment were the only options, particularly as there had been no adverse findings of MacDonald C going to a breach of the employment relationship. The evidence disclosed no criticism of the applicant's work or performance, save for the high level occupational health and safety functions. There was no evidence that other employees could not work with the applicant. Indeed the evidence was that he was well liked and other employees had given earlier evidence supporting him, notwithstanding the allegations made against him. 43 Mr Prince said that the applicant holds no rancour and while he has worked in alternative employment, he had accrued significant benefits, enjoyed his work and the security it offered him and his family and had many friends at Botany. This was a large multinational employer and there was really no impediment to the applicant returning to work, including at other locations, such as Campbelltown or Kent Brewery. There was no evidence that work the applicant could perform was not available at these other locations. 44 Mr Prince put that given the size of the respondent, its policy of moving employees around and having regard to the Botany closure in September, 2007, there was no impediment to an order that the applicant simply be reinstated to a position no less favourable than the one he previously held. In these circumstances it would be unnecessary to prescribe a job description. Mr Prince said that despite the considerable passage of time (over two years) since the applicant's dismissal, no evidence had been led by the respondent that the circumstances at Botany had changed to when the applicant was last there. 45 Mr Prince sought an order for full back-pay, less any income the applicant had earned at Visa. While there had been a mistake made by the respondent in that it had paid the full amount of back-pay (eight months), rather than 50 per cent as required by the stay order, there was still an argument as to the rate of the calculation. Mr Prince argued that the delay in resolving this matter was not the fault of the applicant. He should not be denied full back-pay in circumstances where his dismissal was found by the Commission to be unfair. (Mr Moses informed the Commission that if the maximum compensation was to be awarded in this case, the respondent would not seek any repayment of amounts in excess of 26 weeks already paid in error.) 46 Finally, Mr Prince put that the question of costs should be reserved pending the decision of the Commission. For the respondent 47 Mr A Moses of counsel put the respondent's case under four headings. Firstly, Mr Moses agreed with Mr Prince, that the Commission's discretion in this matter was wide and that each case must be decided on its own merits: see Pambula District Hospital v Herriman (1988) 14 NSWLR 387. He referred to Lorenzato v Sydney Water Corporation [2002] NSWIRComm 277 in which unlike here, the applicant's contrition was a significant factor. He said that Griffith City Council (as cited by Mr Prince) was not to point as that case concerned consent orders being before the Full Bench which included certain conditions. Rather, Mr Moses relied on Bench v NRMA [2006] NSWIRComm 1133 in which reinstatement of a long standing dismissed employee was refused. ( I note this decision is subject to appeal.) In the present case, Mr Moses said a senior employee, in charge of occupational health and safety stole company property, refused to acknowledge his theft and breached the respondent's drug and alcohol policy. 48 Secondly, the applicant had altered his position (described as 'shifting sands') throughout these proceedings as to what he seeks in the form of relief. He firstly sought a position with no occupational health and safety duties and now seeks one with some occupational health and safety duties. He was questioned as to what duties he could perform and the best he could put was that he couldn't perform high level office duties or deal with the legislation. The applicant had also now proposed conditions on his return to work such as he would not drink any alcohol at any time and be subject to random breath tests. Mr Moses emphasised that the respondent had no policy on random testing, no equipment or senior personnel trained to carry it out. 49 Thirdly, Mr Moses submitted that the fact that unfairness was found at first instance does not result in the automatic grant of relief. Here, the credibility of the applicant was a real issue. Mr Moses said that the evidence demonstrated the applicant was prone to lying about his drinking problem. He had lied to the General Manager when he had said he had sought assistance for his problem and he had not told his psychiatrist, Dr Klug the complete story when he was sent to him by his solicitors; so much so a second consultation was required. 50 Mr Moses also highlighted the applicant's evidence that he did not regard the drinking of the respondent's product on two acknowledged occasions was theft. Even now he would not acknowledge that it was theft and yet the respondent is being asked to take him back. The applicant had given evidence that he was aware of the respondent's drinking policy and was responsible for inducting new employees on the policy, yet he breached it on two admitted occasions. Mr Moses also referred to the different evidence the applicant gave about knowing his wife would contact the Company on the night he was brought home and what he told Macdonald C that he had no recollection of discussing it with his wife. 51 Fourthly, as to the issue of the practicality of reinstatement, Mr Moses said that the evidence of Mr Cunneen was that the role the applicant previously held no longer exists and there were now changed industrial conditions affecting salaried staff. Further, Mr Cunneen's evidence was that the respondent could not have any trust or confidence in the applicant. In addition, the respondent could have no confidence that the applicant's drinking and panic attacks would not be repeated, thereby placing itself at significant occupational health and safety risk. This concern must be particularly so when the applicant was less than frank with Dr Klug. There was no medical evidence to suggest the continuation of the applicant's present state. 52 As to back-pay, Mr Moses had already made a concession on behalf of the respondent. He reminded the Commission that the matter had actually been settled in June, 2006. Further, in circumstances where the applicant had breached Company policy and stole Company product, no back-pay should be ordered. The applicant had also been working full time. The proposition that he had been denied promotion by his other employer because of the Telegraph article is irrelevant to these proceedings and to the respondent. Mr Moses asked the Commission to reserve the question of costs. In reply 53 Mr Prince said that it was not open for the respondent to use these proceedings to seek to disturb the findings of Macdonald C and the Full Bench as to the unfairness of the dismissal and credibility of the applicant. Macdonald C had said that he would not characterise the taking of the alcohol as theft in the normal sense of the word. The applicant had been moved by illness compounded by stress. 54 As to the 'shifting sands' accusation, Mr Prince said that this Commission was not a court of strict pleadings and there were a wide range of options available to the Commission in order to ensure justice to the parties. 55 Mr Prince said that Mr Moses' submission that there was no capacity for the respondent to have random breath testing was disingenuous. There was no evidence that the respondent couldn't adopt such a policy, as many employers had. Indeed, there was provision in the existing policy for breath testing. Whether or not the applicant might suffer anxiety attacks in the future was pure speculation. Mr Prince submitted that the view that someone might be prevented from reinstatement by some future illness is a nonsense. The Occupational Health and Safety Act 2000 places obligations on employers to manage such situations. Moreover, there was no evidence that the applicant was not capable of returning to work or has an ongoing drinking problem. 56 Mr Prince criticised Mr Cunneen's evidence by saying that he had difficulty giving straight answers as to the substance of the duties available for the applicant. In any event, the principle is not that a position or duties must be available for reinstatement to be ordered. CONCLUSIONS 57 While all successfully prosecuted unfair dismissal applications require consideration of an appropriate remedy under s 89 of the Act (including whether any relief should be granted), I do not recall a case in which so much detailed and contested evidence was advanced as to the practicality of reinstatement. I have considered the various authorities referred to me by both counsel and would also refer to the other well known authorities in this regard as recently identified in Budlong v NCR Australia Pty Ltd [2006] NSWIRComm 288 at paras [105] to [111]: 105 It is trite law that reinstatement is the primary remedy. It is only where it is impracticable to reinstate an applicant that the other remedies available under s 89 of the Act may be applied: see Little v Commissioner of Police (No 2) (2002) 112 IR 212 at [88]; Riley v Workcover Authority [2006] NSWIRComm 108 at [94]. 106 In Plummer v Stannard Bros Launch Service (2005) 145 IR 111 the Full Bench stated the position as (at 115): Reinstatement is the primary remedy under s 89 of the Act: Burge v NSW BHP Steel Pty Ltd (2001) 105 IR 325 at [34]; Little v Commissioner of Police (No.2) (2002) 112 IR 212 at [88]; Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37 at [125]. Other remedies may only be ordered if reinstatement is considered to be impracticable. That requires the member of the Commission, in all cases where relief is to be ordered, to give active consideration to the practicability of reinstatement. Indeed, we consider s 89(5) requires a finding that it would be impracticable to reinstate the appellant prior to making an order for compensation and in the process of making that finding to give reasons: Entertainment Distributors Company Pty Limited and Anor v Burnard and Ors (1993) 49 IR 446 at 453. 107 The Full Bench in Little (No 2) considered the test to be applied as to the practicability of reinstatement of (sic) re-employment. At paragraph [91] the Full Bench stated: 91 It is in this light that we turn to consider the question of the practicability of reinstatement of re-employment. In this respect, we propose to apply the test in Perkins v Grace Worldwide (Aust) Pty Limited (1997) 72 IR 186 at 191-192 (which was adopted in Hollingsworth v Commissioner of Police at 341-342). 108 The focus in Perkins was on the issue of whether a loss of trust and confidence was a relevant consideration in determining whether reinstatement was impracticable and it is worth repeating what the Full Bench of the Federal Court had to say: Trust and confidence is a necessary ingredient in any employment relationship. That is why the law imports into employment contracts an implied promise by the employer not to damage or destroy the relationship of trust and confidence between the parties, without reasonable cause: see Burazin v Blacktown City Guardian Pty Limited ( Wilcox CJ, von Doussa and Marshall JJ, 13 December 1996, not yet reported). The implication is not confined to employers, it extends to employees: see for example Blyth Chemicals Ltd v Bushell (1933) 49 CLR 66 at 81-2 and North v Television Corporation Ltd (1976) 11 ALR 599 at 609. So we accept that the question whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based. At the same time, it must be recognised that, where an employer, or a senior officer of an employer, accuses an employee of wrongdoing justifying the summary termination of the employee's employment, the accuser will often be reluctant to shift from the view that such wrongdoing has occurred, irrespective of the Court's finding on that question in the resolution of an application under Division 3 of Part VIA of the Act. If the Court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the Court carefully scrutinise any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee. Each case must be decided on its own merits. There may be cases where any ripple on the surface of the employment relationship will destroy its viability. For example the life of the employer, or some other person or persons, might depend on the reliability of the terminated employee, and the employer has a reasonable doubt about that reliability. There may be a case where there is a question about the discretion of an employee who is required to handle highly confidential information. But those are relatively uncommon situations. In most cases, the employment relationship is capable of withstanding some friction and doubts. Trust and confidence are concepts of degree. It is rare for any human being to have total trust in another. What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive. Whether that standard is reached in any particular case must depend upon the circumstances of the particular case. And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party. It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing. The requirement may cause inconvenience to the employer. But if there is such a requirement, it will be because the employee's employment was earlier terminated without a valid reason or without extending procedural fairness to the employee. The problems will be of the employer's own making. If the employer is of even average fair-mindedness, they are likely to prove short-lived. Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable. 109 This approach was also accepted in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 282. 110 As to the approach to be taken in assessing the practicability of reinstatement, the comments of Cahill VP in NSW Public Service Professional Officers Association v Forestry Commission (NSW) [1990] 39 IR 46 at 50 are relevant: In this regard industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the matter of termination of employment that there would be "practical uselessness" in attempting to re-establish the previous employment relationship. My views in this regard accord with those of McClelland J in Hardie Ferodo Pty Ltd v New South Wales Nurses' Association (unreported, 28 Nov 1978), as cited with approval by Hungerford J in Pastrycooks Employees, Biscuit Makers Employees & Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 99. In the Hardie Ferodo case McClelland J said this: "This is, of course, a consideration to be taken into account in every reinstatement case but it must be treated with considerable caution. These cases come before the Commission by way of s 25A proceedings and the fact that such a case proceeds to arbitration after conciliation has failed provides in itself obvious evidence that the employer does not want the employee back. If that consideration had been allowed to outweigh all others the Commission would never have reinstated anybody." 111 The respondent submitted that reinstatement should not be ordered because the relationship of trust, confidence and good faith between the appellant and respondent was damaged beyond repair; the misconduct was serious; the appellant's reinstatement would have a detrimental effect on the safety and welfare of other employees; the pornography found was of a graphic and sordid nature and the appellant considered the pornographic material to be erotic. 58 If any return to work relief is to be ordered in this case, I do not consider that it could be characterised as reinstatement. Rather the effect of what was argued was that the applicant should be re-employed to a position which is different (although the degree of difference is contested) to that which he held before he was dismissed on 23 December, 2004. Viewed in this way, and in light of how the applicant's case evolved, reinstatement to his former position is not appropriate. Put simply, the applicant has sought to be re-employed, but without the tasks which were said to give rise to stress problems and panic attacks and which were said to have led to his drinking problem and ultimately the incident which resulted in his dismissal. These were the conclusions of Macdonald C which were undisturbed on appeal. However, the applicant now says he can perform some occupational health and safety duties, but not high level occupational health and safety duties, such as chairing the Occupational Health and Safety Committee or preparing reports. 59 What is then to be considered is the state of the applicant's health. I found the medical evidence of Dr Klug to be equivocal; albeit for understandable reasons. The applicant saw Dr Klug in July and September, 2006 when his alcohol consumption was negligible and where he had not had any panic attacks since 2004. Dr Klug concluded that there was no evidence of a psychiatric disorder and he could not conclude with certainty that the applicant's alcohol dependence between 2002 and 2004 arose from work related stresses. 60 However, in my judgment, the applicant has demonstrated, beyond doubt, that he is a changed man. He has been rocked by this experience and I accept he has dramatically changed his behaviour. He came before the Commission offering not only not to drink whilst at work, but promising not to drink alcohol at all and to be subject to random breath testing should he be reinstated. His wife, who has also been clearly affected by this experience, offered to monitor his conduct and report any problems to his doctor. While these are commendable undertakings, I do not consider that this Commission should be the arbitor of the responsible consumption of alcohol outside of work hours or where the socially responsible consumption of alcohol outside of work in no way impacts on a person's work performance. Leaving aside these ethical considerations, in my view, orders of the kind envisaged by the applicant raise serious issues of enforceability. Accordingly, I do not intend to make orders or recommendations of the type referred to in Dobbie, notwithstanding that, like here, the undertaking in Dobbie was given voluntarily by the applicant and taken into account by the Commission in determining that matter. Nevertheless, I would expect no less than the applicant's ongoing responsible conduct and, in this regard, note his undertakings. 61 In addition, I believe it would be quite unreasonable and unrealistic to expect the respondent to invest considerable sums of money in equipment, training and testing for a single individual. Whether a more comprehensive company-wide approach to alcohol and drug testing is desirable is a matter which the respondent may care to consider - as many employers have done. Had there been such a policy in place, which may have avoided the applicant's dismissal is, of course, purely speculative. I note however, that the only real attempt to enlist help and support through the respondent's EAP program occurred on the night of the incident. Whether he and his wife had earlier discussed assistance is really not the point. He only sought to do so when faced with a likely crisis at work. This was notwithstanding an apparent problem stretching over two years which was well known to Mrs Brunt, if not others, including his own doctor. 62 It was not unexpected that Mr Moses focussed on the applicant's failure to recognise, even during the present proceedings, that he had stolen company property. Mr Moses also argued that there was no guarantee the applicant would not engage in his previous behaviour and put safety at risk for himself and others at the workplace. While I accept there is some validity to Mr Moses' arguments going to the respondent's alleged loss of trust and confidence in the applicant, it seems to me that these submissions should be viewed in the context of the applicant's changed behaviour and undertakings. As I have already said, I believe him to be a dramatically changed individual. In addition, I do not consider that there has been such a breach of trust in the employment relationship as to mitigate against re-employment. 63 What must be accepted is that this is a very unique case in which the question of remedy has come many months after the case was originally heard and decided. At the present time, I am satisfied that the applicant's personal and other circumstances are materially different to that which existed two years ago. In addition, I do not regard the significant passage of time since the applicant's dismissal as being an impediment to re-employment in circumstances which I will shortly outline. 64 Accordingly, I consider that a persuasive case has been made out for the re-employment of the applicant on conditions, pursuant to s 89(2) and (8) of the Act. I would note, in particular, that the evidence disclosed, inter alia that: (1) The respondent is a large employer of labour with three metropolitan sites. The applicant has identified suitable duties he could perform at these locations, and he would be willing to work at any of these sites. (2) The applicant is capable of performing a wide range of duties which the respondent has available including warehousing and despatch, forklift, production, security, first aid and some occupational health and safety duties. (3) Mr Cunneen agreed that, in theory, the applicant could perform the duties he had identified, subject to a review by the respondent of what was required. (4) The applicant has an 18 year otherwise unblemished record of employment. (5) The applicant's work (other than high level occupational health and safety duties) and his past performance has not been criticised by the respondent. (6) There was no evidence that other employees would not be able to work with the applicant. Indeed, the evidence was to the contrary. (7) Apparently, Mr Jagger bears the applicant no ill will, nor he to Mr Jagger. I see no reason why they cannot sensibly and amicably work together, if a position is found for the applicant at Botany. 65 There was some argument as to the orders that might be made in respect to lost remuneration, pursuant to s 89(3) of the Act. Despite Schmidt J's stay order of 19 September, 2005 granting 50 per cent of the back-pay (namely four months) pending the outcome of the appeal, the respondent erroneously paid him eight months pay (although there is some residual argument as to the calculation of the amount). 66 Mr Prince sought orders for back-pay up to Macdonald C's decision (26 August, 2005) and orders for the difference between the amount the applicant would have received, less any other earnings, up to the point of re-employment. Effectively, this would be an amount reflecting payment of all lost remuneration. In view of the circumstances of this case, particularly the applicant's admission that what he had done was wrong, I am not inclined to grant this submission: see Lorenzato v Sydney Water Corporation. I intend to make no orders as to monies already received by the applicant from the respondent as a result of the stay order and to order that lost remuneration be paid from the date of the appeal judgment (9 June, 2006) to re-employment, less any income earned by the applicant during that period. ORDERS 67 Pursuant to section 89(2), (3), (4) and (8) of the Industrial Relations Act 1996, the Commission orders that: 1. The respondent, Fosters People Limited, shall re-employ the applicant Phillip Brunt to a position at any of its metropolitan sites on terms no less favourable than he would have otherwise received had he not been dismissed on 23 December, 2004. Such a position should be commensurate with his skills, experience and any medical restrictions, and may include occupational health and safety duties identified by the applicant as ones he is able to perform. 2. The respondent, Fosters People Limited, shall pay to the applicant, Phillip Brunt, an amount of remuneration the applicant would have otherwise received had he not been dismissed from his former position from 9 June, 2006 to re-employment. 3. The amount of lost remuneration referred to in Order 2 shall be less any remuneration earned by the applicant during the period 9 June, 2006 to re-employment. 4. The applicant's period of employment with the respondent shall not be taken as broken by his dismissal. 5. The re-employment of the applicant shall take effect within 21 days or such other date as may be agreed between the parties. 68 Any application for costs shall be made by way of notice of motion within 28 days of today. Peter J Sams, AM Deputy President 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.