AMMA welcomes the recent decision of the Fair Work Commission (FWC) upholding the dismissal of the Master of a vessel who attended for work with a blood alcohol reading of over twice the prescribed limit, in breach of drug and alcohol policies.

This decision was made after a Full Bench of the FWC remitted the matter for rehearing, finding it would be “unsafe” to allow the initial decision, that the employee’s dismissal was harsh, to stand.

Background

The matter concerns an employee who was employed by Farstad Shipping, a vessel operator in the offshore oil and gas industry, in the position of Master Mariner, that is, a ship’s captain. As Master, the Captain was responsible for the overall management and safe navigation of the vessel of which he was captain.

On the shift in question he was to be working in the role of supernumerary, which would involve mentoring a Master in relation to anchor handling operations. While a supernumerary has no statutory shipboard duties, they are required to remain capable of performing duties as may be required, including in the case of an emergency.

On the day before the Captain was due to commence his shift, he bumped into a colleague who he said brought back memories of a 2014 work incident involving unresolved allegations against him. He proceeding to drink a total of 10 full strength beers throughout the day and evening, in the hope that it would calm him down.

The next morning, before boarding a bus which was to transport him and other crew members to the vessel, the Captain, along with other crew members, was subjected to a random alcohol test.

The Captain registered a blood alcohol level of 0.047, in breach of Farstad’s blood and alcohol policies. Following an investigation he was dismissed for serious misconduct.

Initial Decision

During the proceedings, Farstad also sought to rely on matters it became aware of post-termination. These included the Captain’s failure to disclose various prescribed medications between 2014 and 2016 in breach of drug and alcohol policies, and failure to enforce compliance by his crew with policy requirements to disclose prescribed medications upon boarding a vessel.

Despite finding there was a valid reason for dismissal, Commissioner Bissett found the dismissal was harsh due to the Captain’s 16 years of service, the company’s failure to consider a lesser penalty. The Commissioner also said: “Were it not for the failure of Farstad to close off the 2014 incident my findings may well have been different.”

The Commissioner determined that an order for reinstatement was not appropriate, and issued directions for parties to file material relevant to the amount of compensation that should be ordered.

Appeal

Farstad appealed the decision on a number of grounds.

The Full Bench upheld two appeal grounds, concluding that the Commissioner had erred in failing to take into account the Captain’s decision not to self-report his drinking, and to give sufficient weight to his previous breaches of the drug and alcohol policies.

It found that having regard to the “significance of the errors” it would be “unsafe to allow the decision to stand.” It quashed the decision and remitted the matter to Deputy President Clancy for rehearing.

Rehearing

On rehearing, Deputy President Clancy found that there was a valid reason for dismissal, and the dismissal was not harsh, unjust or unreasonable.

The Deputy President had regard to the Captain’s “senior and very responsible role” in which he was “required to work in hazardous environments, with the vessels on which he served required to operate in close proximity to oilrigs and offshore installations.”

“Farstad was entitled to regard the breaches of (the Captain) very seriously,” he said.

The Deputy President also considered the Captain’s 16 years of service, his age (63) and that he is the sole income earner in his household.

Ultimately, the Deputy President was not persuaded the mitigating circumstances outweighed the prohibited conduct.

Deputy President Clancy dismissed the application.

Implications

AMMA welcomes this as a common sense decision which recognises the importance of employers being able to take appropriate action in response to serious safety breaches.

Policies are in place for good reason, and it is commonplace and sensible that these be strictly enforced so as not to increase the risk of something going wrong, causing an injury or death at the workplace.

While this is a welcome decision, we are still seeing decisions from the FWC (in this case the initial single member decision) where even though a valid reason for termination exists, and despite extensive procedural processes being followed correctly, Commission members can, and some do, exercise the discretion to determine that a dismissal for a serious safety breach was ‘harsh’.

It may be said by some that as the ultimate decision to terminate the employees in many of the above cases were vindicated through various appeal processes the system is working as designed. Unfortunately, such cases can give the appearance strict adherence to key safety protocols may be flexible, and defending such cases may cost employers tens or hundreds of thousands of dollars in legal fees.

Ensuring there is greater consistency within decisions of the FWC, including addressing the tendency for some tribunal members to substitute their own discretionary actions for those of experienced business owners and managers, remains an area of ongoing policy advocacy for AMMA.

AMMA’s Workplace Consulting Team are specialists in all drug and alcohol-related processes and procedures in the resources and energy industry. For assistance or advice, contact your local AMMA office.