Keuenhoff v RailCorp [2012] NSWTAB 10

Transport Appeal Boards New South Wales Medium Neutral Citation: Keuenhoff v RailCorp [2012] NSWTAB 10 Hearing dates: 06/03/12 Decision date: 29 March 2012 Before: Ritchie C (Board) Decision: Catchwords: Public Service-discipline-rail employee-breaches of Code and policies-positive random breath test-first failed test in 3 ½ years-appellant diabetic 2- unaware that such a person's body absorbs alcohol twice as slow as a non-diabetic-found dismissal too harsh in all the circumstances-dismissal set aside-reinstated- no back pay. Category: Principal judgment Parties: Grant Keuenhoff(Appellant)

Rail Corporation of NSW(Respondent) Representation: Mr B Edghill (Appellant)

Ms M Robinson (Respondent) File Number(s): TAB 1492 of 2011

DECISION

Introduction 1Mr Grant Keuenhoff (the appellant ) filed a claim for Notice of Appeal-Transport Discipline on 14 November 2011. The appellant was employed as a Track & Structures Worker, commencing on 6 August 2007 and was terminated from Rail Corporation of NSW (the respondent) on 1 November 2011. He pleaded guilty to the charge as a consequence of failing a random breath test thereby breaching the Code of Conduct. The tests were carried out on 20 March 2011.

Respondent's and Appellant's Cases 2As the appellant had pleaded guilty to the charge the respondent did not call any witnesses. It was the respondent's submission that : On Sunday 20 March 2011 about 0645 hrs, while on duty at a worksite at Newnes, Mr Keuenhoff undertook a random breath test, which returned a positive reading of 0.040 grammes of alcohol in 210 litres of breath. Mr Keunenhoff then attended Lithgow Police Station and about 0723 hrs, he undertook a breath analysis, which returned a positive reading of 0.060 grammes of alcohol in 210 litres of breath. 3By attending for work with a blood alcohol concentration of 0.04%, the appellant was in breach of the Code of Conduct and the Drug and Alcohol Procedure, and failed to return an alcohol level below the maximum level of 0.02% blood alcohol concentration. He also failed to check with his doctor that he was able to work within the "drug and alcohol free " respondent's environment with respect to his medical condition, and by attending work after consuming inappropriate amounts of alcohol, failed in his obligation as an individual to ensure that he was alcohol free at work. 4Ms Robinson advised that the personnel history report of the appellant showed he had no previous discipline recorded. 5The respondent submitted that the appellant sought to have his medical condition taken into consideration as a mitigating factor. The appellant has type 2 diabetes and was unaware that this may affect the rate at which his liver processes alcohol. It was submitted that this ignorance on behalf of the appellant as to the impact of his own medical condition increases the seriousness of his actions as it is the individual's responsibility to ensure that they are alcohol free in the workplace. The appellant's knowledge of his medical condition places an onus upon him to educate himself as to the impact of his condition on processes such as the elimination of alcohol from his system, particularly if he intends to consume alcohol prior to attending work. 6The appellant filed a statement and was subject to cross examination. He stated that he found out that he was a diabetic when he had his medical when joining the respondent. This required a change of life style which included exercise and diet plus medication. He attended meetings with dieticians and an endocrinologist, a diabetic specialist .The issue of diabetes having an impact on the way he absorbs alcohol never came up. The meetings always focused on healthy lifestyle, diet and exercise, medication. 7He stated that on Saturday 19 March 2011 a number of work mates and himself went away for work. That night they went to a club and had a few drinks. He did not believe that he drank excessively or quickly. He drank from about 7.00pm to about 10.30 to 11.00pm at the latest. He believes he drank about 6 to 7 beers. 8The next day he submitted to a breath test which returned a reading of .040. Some of his work mates who were with him at the club the night before were also tested and none of them returned a reading of above .020 cut off. 9 He was told by the respondent's testers that diabetics process alcohol at a slower rate than non diabetics. He stated that he was unaware of this . 10When he was tested at the local police station his reading was 0.060. He stated that he believes that he processes alcohol more slowly and that is why he tested positive when his work mates did not and why his reading increased when taken at the police station. 11As a consequence he spoke with his doctor who provided the respondent with a letter. The letter from Dr Annette Deada stated in part : This is to certify the grant Keunhoff is known diabetic for 4 years. As Diabetic, alcohol is metabolized much slower than people who don't have diabetis. Therefore, it takes about two for diabetic's liver to process one's alcoholoc drink. 12He stated that he had been tested many times in the past when working for the respondent and had never returned a positive test. Throughout the 9 months after he was stood down from safety work he was regularly tested by the respondent. 13 When the respondent stopped testing him he said that he undertook a liver test at his own expense to demonstrate that he did not have a problem with alcohol. His test results showed that his liver was normal. 14He stated that he now has a far better understanding of what is a safe amount of alcohol for him to consume and remain alcohol free at work.