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. Considerations and Decision. 15There is no dispute with respect to the facts that occurred on 20 March 2011. The appellant was tested and the test proved positive for alcohol. It was twice the allowed level. As expressed above the appellant had gone out with some of his work mates the night before and drank 6 to 7 beers. Some of those same work mates who he was with the night before were also tested. Their tests proved negative. The appellant has pleaded guilty to the allegations made by the respondent concerning the breaches of the Code of Conduct and the drug and Alcohol Policy. 16In determining this matter I have taken into consideration the evidence of the appellant with respect to his medical condition and his lack of knowledge as to the consequences of he consuming alcohol and its ramifications. I have also taken into consideration his disciplinary record whilst working for the respondent. 17It is my finding that the penalty of dismissal taken by the respondent is too harsh taking into consideration the circumstances of the appellant. 18I do not believe that the appellant came to work that day thinking he would be in breach of the respondent's policies. Taking into consideration that his work mates did not breach the policy and he did then I can imagine he would have been quite surprised at the result. 19I have noted also that this is the first time the appellant has breached these policies and that he has tested negative at all subsequent testings. Clearly he now knows what is required of him in this area and I believe that his chances of re offending are minimal. 20In her submission Ms Robinson placed the onus on the appellant to have sought out the information as to the intake of alcohol for a diabetic and I have some sympathy for this view. The appellant stated that his life style had to change through exercise, diet and medication. The appellant placed himself in the position that resulted in the positive reading. As a consequence I consider that a penalty is required to acknowledge the accepted breach of the respondent's codes. Whilst I will order that the appellant be reinstated I will not order the payment of any back pay. Order(s) 21In relation to the appeal in TAB 11/1492 the Board makes the following orders: 1.The appeal is allowed: 2.The decision of the respondent to dismiss Mr Grant Keuenhoff is set aside and he is reinstated to his position of Track & Structures Worker within 14 days from the date of this decision. 3.The continuity of Mr Keuenhoff's employment with the respondent is taken not to have been broken by the decision to terminate him. D. Ritchie Commission 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. Decision last updated: 16 April 2012