Legal Research
Cases
DP World Sydney Limited v Lee Witherden

DP World Sydney Limited v Lee Witherden

Link copied

Case Copied 4 July 2025 53 min read

Contents

On this page

[2025] FWCFB 133

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604 - Appeal of decisions

DP World Sydney Limited
v

Lee Witherden

(C2025/1269)

VICE PRESIDENT GIBIAN
DEPUTY PRESIDENT LAKE
DEPUTY PRESIDENT SLEVIN

SYDNEY, 4 JULY 2025

Appeal against decision [2025] FWC 294 of Deputy President Wright at Sydney on 3 February 2025 in matter number U2024/7478 – Employee tested positive to metabolites of cocaine – Deputy President determined that dismissal was harsh and unreasonable and ordered employee be reinstated – Standard of appellate review – Whether correctness standard applies to finding of unfairness or appropriateness of reinstatement – Whether Deputy President mistook the facts, failed to have regard to relevant considerations or took into account irrelevant considerations – Whether decision of the Deputy President was itself manifestly unreasonable – Whether the Deputy President erred in ordering reinstatement – Permission to appeal granted but appeal dismissed.

Introduction

DP World Sydney Limited operates an intermodal container stevedoring terminal at Port Botany in Sydney. Lee Witherden is a stevedore and commenced employment for DP World (formerly P&O Ports) in October 1999. He had worked at the Port Botany terminal for almost 25 years prior to the events which have resulted in this appeal.

Those events are as follows. During his shift on 27 May 2024, Mr Witherden was selected for a random drug and alcohol test and provided a saliva sample. His sample returned a non-negative result for a proscribed substance, namely, cocaine. Mr Witherden was required to provide a urine sample for confirmatory testing which he did. The confirmatory test confirmed the presence of benzoylecgonine and ecgonine-methyl-ester which are both listed on the test report under the heading “cocaine” and are cocaine metabolites.

On 3 June 2024, Mr Witherden was sent a letter by Scott Eadie, General Manager Operations at the Port Botany terminal, inviting him to show cause why his employment should not be terminated for breaching DP World’s Alcohol and other Drugs Policy (the AOD Policy), the Code of Conduct, his employment obligations and his workplace health and safety responsibilities. Mr Witherden provided a response dated 6 June 2024 in which he stated he had consumed cocaine some 24 hours before his scheduled shift and acknowledged recreational use of cocaine, however only during periods of leave from work.

A show cause meeting was conducted on 7 June 2024 attended by Mr Witherden and Mr Eadie. After a break in the meeting, Mr Eadie returned to the room and stated that he had decided to terminate Mr Witherden’s employment with immediate effect. A letter to that effect was sent to Mr Witherden by email setting out the reasons for the decision of DP World to terminate his employment for serious misconduct.

On 27 June 2024, Mr Witherden applied to the Commission for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) (the Act). The application was determined by Deputy President Wright.[1] The Deputy President found that there was a valid reason for dismissal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read DP World Sydney Limited v Lee Witherden and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] FWCFB 133
Decision Date: 4 JULY 2025

CaseChat Overview and Summary

DP World Sydney Limited, the appellant, sought to appeal the decision of the Fair Work Commission (FWC) finding that Lee Witherden's dismissal for testing positive for cocaine metabolites was harsh, unjust or unreasonable and ordering his reinstatement. The appeal hinged on various grounds, including the alleged misapplication of the standard of appellate review, factual errors, and procedural fairness concerns. The Full Bench of the FWC granted permission to appeal but ultimately dismissed the appeal, upholding the Deputy President's decision. The Full Bench held that the discretionary standard of appellate review applied, requiring identification of error in the decision-making process rather than mere disagreement with the Deputy President's conclusions. The Full Bench found no such error in the Deputy President's reasoning, noting that the Deputy President had adequately considered relevant factors, including Mr Witherden's cooperation, the inadequacy of the Alcohol and Other Drugs Policy (AOD Policy) information, and the failure to consider rehabilitation options. The Full Bench also rejected DP World's claims of factual errors and procedural unfairness, finding that the Deputy President's reasoning was supported by the evidence and aligned with the statutory requirements. The appeal was dismissed, and the reinstatement order stood.

Orders