DP World Sydney Limited v Lee Witherden

Case •

[2025] FWCFB 133

•

4 JULY 2025
[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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

  1. 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 because Mr Witherden breached the AOD Policy. However, due to other factors, including Mr Witherden’s lengthy period of service, the inadequacy of the information in the drug and alcohol policy regarding inactive metabolites and hangover effects and DP World’s failure to consider rehabilitation, the Deputy President determined that Mr Witherden’s dismissal was harsh and unreasonable.[2] The Deputy President made orders for reinstatement and continuity of employment.

  1. On 21 February 2025, DP World filed a notice of appeal seeking permission to appeal and to appeal, the decision of the Deputy President under s 604(1) of the Act. In its notice of appeal, DP World sought a stay of the Deputy President’s decision pursuant to s 606 of the Act. By the consent of the parties, the stay was issued.[3] DP World filed an amended notice of appeal on 17 March 2025. DP World contends that the Deputy President erred in various respects in finding that the dismissal was harsh and unreasonable and finding that reinstatement was not inappropriate.

  1. For the reasons that follow, the Full Bench has concluded that it is in the public interest to grant permission to appeal. However, no error has been identified in the decision of the Deputy President and the appeal must be dismissed.

Grounds of appeal

  1. The grounds of appeal are numerous and lengthy. The grounds were narrowed somewhat in the amended notice of appeal and during oral submissions on the appeal. The grounds of appeal in relation to the finding of the Deputy President that Mr Witherden’s dismissal was harsh and unreasonable are as follows:

1.   The Deputy President mistook facts (and made significant errors of fact), specifically:

(a)    By the finding, at [207] and [210], that there was no evidence that Mr Eadie considered whether rehabilitation was an option that was available for the appellant to consider;

(b)    By the finding, at [138] and [209], that Mr Witherden was cooperative with the investigation;

(c)    [Not pressed];

(d)    By the finding, at [152]-[163] and [209], that the information available to Mr Witherden in relation to the requirement of the AOD policy was inadequate;

(e)    [Not pressed].

2. The Deputy President misapprehended the nature of her statutory task under s 387, with the consequence that the Deputy President’s jurisdiction miscarried when the Deputy President:

(a)    [Not pressed]; ‘

(b)    at [162], devolved into an inquiry into how the information that was provided to employees could or should have been presented.

3.   The Deputy President failed to have regard to relevant considerations:

(a)    [Not pressed];

(b)    to Mr Witherden’s failure to accept there was any risk of impairment when he attended for work on 27 May 2024, in determining whether the dismissal was unreasonable and/or harsh (cf at [137]);

(1)  to Mr Witherden’s failure to accept that he put the safety of other employees at risk when he attended for work on 27 May 2024, in determining whether the dismissal was unreasonable and/or harsh;

(2)  [Not pressed];

(3)  in basing her findings on the AOD Policy on the basis only of “the plain and ordinary meaning of the language” of the AOD Policy, and not the explanatory material subsequently provided to employees, when assessing the adequacy and/or clarity of the AOD Policy’s terms (at [154], cf at [162]);

4.   The Deputy President had regard to irrelevant considerations:

(a)    By taking into account, at [156]-[163] and [208] and [210], whether the information available to other employees about the AOD Policy was adequate (or, in the alternative, the Deputy President denied the Appellant procedural fairness by making findings about the AOD Policy, and relying on those findings, in circumstances where the Appellant was not on notice that the matters in respect of which those findings were made were in issue);

(b)    [Not pressed];

(c)    [Not pressed];

(d)    by taking into account, at [210], that Mr Witherden was not intoxicated on account of cocaine, in circumstances where the relevant inquiry should instead have been into whether there was a risk that Mr Witherden was impaired;

(e)    by taking into account that there was “no indication in the evidence” at [207] that Mr Eadie considered whether rehabilitation was inappropriate (or, in the alternative, the Deputy President denied the Appellant procedural fairness by relying on that absence of evidence as a matter that weighed in favour of a finding that the dismissal was unfair).

5.   Further or in the alternative to Grounds 1-4 above, the Deputy President’s conclusion that the dismissal was unfair was a conclusion that was unreasonable and/or plainly unjust, such that it would be inferred that the Deputy President failed to properly exercise her statutory task.

6.   In the alternative to Grounds 1-5 above, the Deputy President erred in finding that the dismissal was harsh and unreasonable, that finding being subject to the correctness standard of appellate review.

  1. In relation to the submissions that the Deputy President erred by finding that reinstatement was not inappropriate, the grounds of appeal allege:

7.   The Deputy President made a significant error of fact in her finding, at [218], as to Mr Witherden’s past compliance with the AOD Policy.

8.   The Deputy President made a significant error of fact/denied the Appellant procedural fairness in her conclusion at [218] that Mr Eadie’s loss of trust and confidence was informed by the high range test result, in circumstances where that was not a matter put to Mr Eadie in challenge of his evidence on that point.

9.   [Not pressed];

9A. The Deputy President failed to have regard to a relevant consideration, namely Mr Witherden’s failure to accept that he put the safety of other employees at risk when he attended for work on 27 May 2024.

10.   [Not pressed].

11.   [Not pressed].

12.   In alternative to grounds 7-9A above, the Deputy President erred in finding reinstatement was not inappropriate, that finding being subject to the correctness standard of appellate review.

Permission to appeal

  1. There is no right to appeal, and an appeal may only be made with the permission of the Commission under s 604(1) of the Act. A Full Bench must grant permission to appeal if satisfied that is in the public interest to do so.[4] Otherwise, the Full Bench generally has a broad discretion as to whether permission to appeal should be granted.[5]

  1. This discretion is further confined in respect of applications for permission to appeal deriving from unfair dismissal proceedings under Part 3-2 of the Act. Section 400 of the Act provides:

(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so. 

(2)Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact. 

  1. Section 400 evinces an intention that the avenue of appeal for unfair dismissal proceedings ought to be confined more than appeals from other kinds of proceedings, thus the commonly quoted characterisation of the test being a ‘stringent one’.[6] Permission to appeal can only be granted if the Full Bench is satisfied it is in the public interest to do so, and no residual discretion exists if that threshold is not met.[7] Section 400(2) provides that, with respect to factual findings made in unfair dismissal proceedings, review on appeal is only available if there has been a “significant” error of fact. A person may not appeal on grounds of an alleged error of fact that does not reach the significance threshold.[8]

  1. DP World submits that permission to appeal should be granted because the various errors it alleges exist in the decision of the Deputy President manifest a significant injustice to it and that DP World had been deprived of the opportunity to have the application determined by reference to all relevant evidence and considerations, and without recourse to irrelevant considerations. It contends that this injustice, and the public interest in the decision being reviewed on appeal, are heightened by the fact that the case concerned an employee having contravened a safety related policy in a safety critical operating environment. In support of its application for permission to appeal, DP World also says that grounds 6 and 12 raise an issue of general importance in relation to the standard of appellate intervention in a determination as to whether a dismissal is harsh, unjust or unreasonable.

  1. The Full Bench is satisfied that it is in the public interest to grant permission to appeal. We have formed that view for two reasons. First, the appellant raises an issue of importance in relation to the standard of appellate review of decisions made by a member of the Commission under Part 3-2 of the Act. DP World contends that the approach the Commission has customarily adopted that a decision as to whether a dismissal is harsh, unjust or unreasonable and whether reinstatement is inappropriate involves the exercise of a discretion in the broad sense is wrong. It is appropriate for the Full Bench to consider those submissions. Second, Mr Witherden’s case involves the dismissal of an employee who tested positive to an illegal substance when at work in a safety critical operational environment. The fact that an unfair dismissal case raises questions of safety may not necessarily mean permission to appeal should be granted. However, in the circumstances of this matter and given the contentions advanced by DP World, we are satisfied that it is in the public interest for the Full Bench to consider whether there is any error in the decision of the Deputy President.

Consideration

Standard of appellate review

  1. It is appropriate to first address the submissions of DP World in relation to the standard of appellate review to be applied in this matter. The standard of appellate review is relevant to permission to appeal and, obviously enough, to the disposition of the appeal if permission is granted.

  1. DP World submits that the questions of whether a dismissal was “harsh, unjust or unreasonable” for the purposes of s 385(b) and whether reinstatement is “inappropriate” for the purposes of s 390(3)(a) involve the application of an evaluative statutory norm or legal standard to findings of fact such that they admit of only one correct answer and are subject to the correctness standard of appellate review. Those findings are not, DP World submits, of a discretionary nature so as to attract the application of the principles in House v The King on appeal. In Moore (a pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119, Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ explained the difference between the two appellate standards as follows:[9]

Under the correctness standard, the appellate court determines for itself the correct outcome while making due allowance for such “advantages” as may have been enjoyed by the judge who conducted the trial or hearing. With House v The King, appellate intervention is limited to circumstances where the trial judge: acted upon a wrong principle, or allowed extraneous or irrelevant matters to affect the decision; mistook the facts; failed to take into account some material consideration; or made a decision that was unreasonable or plainly unjust. These grounds for intervention contemplate the appellate court accepting that intervention is not warranted even though the members of the appellate court may have decided the matter differently to the judge at first instance, a circumstance that is reflected in the language adopted by the Court of Appeal in this case when it described the trial judge’s conclusion as “open” to his Honour.

  1. If DP World’s submission is correct, it would be sufficient to uphold an appeal in an unfair dismissal case if the Full Bench forms a different view as to whether the dismissal was harsh, unjust or unreasonable or whether reinstatement is inappropriate. Subject to permission to appeal being granted, the Full Bench would be required in every case to consider for itself whether the dismissal was harsh, unjust or unreasonable, and the question of remedy, irrespective of whether any error can be identified in the approach, reasoning, or decision-making process of the member at first instance

  1. DP World acknowledges that the Commission has consistently found, or at least assumed, that the discretionary standard of appellate review is to be applied in case of an appeal from a decision in an unfair dismissal case. In Sydney Trains v Goodsell[2024] FWCFB 401; (2024) 335 IR 1, for example, the Full Bench observed that “[i]t is well established that the task of deciding whether a dismissal is unfair because it is harsh, unjust and/or unreasonable, is a discretionary judgement in a broad sense” and that “the correctness of the decision can only be challenged by showing error in the decision-making process”.[10] The Full Bench has similarly said that appeals from decisions concerning the formation of the requisite “satisfaction” as to the “appropriateness” of reinstatement under s 390(3) of the Act involve the exercise of a broad discretion and require application of the test in House v The King to assess appealable error.[11] DP World submits that the Commission has been wrong to form that view in the past and this Full Bench ought to reach a different conclusion.

  1. The crux of the submission made by DP World is that, in other contexts, questions of the same species as a finding that the dismissal of an employee was “harsh, unjust or unreasonable” or whether reinstatement was “inappropriate” have been found to attract the correctness standard of review. It referred to the determination of whether conduct met the statutory definition of “unjust”,[12] whether a party behaved “unconscionably” within the meaning of statute,[13] whether a restraint of trade was “reasonable”,[14] whether there has been an “abuse of process”,[15] whether a vehicle met the statutory threshold of “acceptable quality” under statute,[16] whether goods were “reasonably fit for purpose” under statute,[17] whether a Court “thinks” that evidence has “significant probative value”[18] and whether a party’s conduct was “negligent”.[19] DP World submits that a finding as to whether a dismissal was harsh, unjust or unreasonable, or whether reinstatement is inappropriate, are of a similar nature and should also be considered to attract the correctness standard on appeal.

  1. The determination of which standard of review is applicable does not depend on whether the reasoning to be applied is evaluative or in respect of which reasonable minds may differ. The fact that a finding as to whether a dismissal was harsh, unjust or unreasonable, or whether reinstatement is inappropriate, involve broad value judgments in relation to which different decision-makers may reach different conclusions does not necessarily mean the correctness standard is inapplicable. Rather, the determination turns on whether the legal criterion to be applied “demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies”.[20] The correctness standard will apply to “questions to which there is but one legally permissible answer, even if that answer involves a value judgment”.[21]

  1. Where the source of the power being exercised is found in a statute, whether “judicial restraint” is or is not to apply is an issue of statutory construction.[22] That is, the question is whether, properly construed, the statute conferring the power being exercised tolerates a range of outcomes or requires a unique decision in each case. In our opinion, a number of features of the Act generally, and Part 3-2 of the Act in particular, are inconsistent with the submission of DP World that the correctness standard is to be applied on appeal from a finding that a dismissal was harsh, unjust or unreasonable. The Act contemplates that determination of whether a dismissal is harsh, unjust or unreasonable, and whether reinstatement is inappropriate, are matters intended to be determined by way of a discretionary assessment by an individual member of the Commission.

  1. First, the assessment for the purposes of s 385(b) of the Act is to be made by reference to broad standards of harshness, injustice or unreasonableness. As we have said, the application of those standards is not necessarily inconsistent with the Act intending that there be a unique outcome to the assessment or the correctness standard applying on appeal. So much is apparent from Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 which concerned whether an administrative decision was unreasonable. However, the breadth of the decision-making power afforded to the primary decision maker is relevant.[23] Such broad and value-laden standards are, at the very least, consistent with the Act contemplating that different decision-makers might permissibly arrive at a different outcome.

  1. Second, when considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is directed to take into account the matters listed in s 387 which include “any other matters the FWC considers relevant”.[24] The fact that the matters to which the Commission may have regard are confined only by what it considers relevant supports the conclusion that the determination is discretionary. In Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194, for example, Gleeson CJ, Gaudron and Hayne JJ said:[25]

“Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment.

  1. Where the considerations relevant to a decision are confined only by the subject matter and object of the legislation, considerable latitude is likely to be intended to be conferred on the relevant decision-maker.

  1. Third, when determining an application for an unfair dismissal remedy, the Commission is not adjudicating existing legal rights. Part 3-2 of the Act is not concerned with the enforcement of existing rights but rather the creation of new rights in certain circumstances. The purpose of the Commission’s inquiry into whether a person has been dismissed in a manner that was harsh, unjust or unreasonable has historically been regarded as involving a determination of whether new rights and obligations should be created.[26] No different position arises under the current Act. The Act does not contain a statutory prohibition on unfairly dismissing an employee or confer a right to a remedy.[27]

  1. Fourth, the object of Part 3-2 of the Act includes “to establish procedures for dealing with unfair dismissals that … are quick, flexible and informal” and that the procedures and remedies, and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee.[28] Furthermore, s 400 of the Act provides that the Commission can only grant permission to appeal in a case under Part 3-2 if satisfied it is in the public interest to do so and an appeal with respect to factual findings can only be made on grounds that there was a significant error of fact. The Full Bench recently described the statutory purpose lying behind those provisions and their consequences in the following way:[29]

The statutory purpose of restricting the avenue of appeal with respect to a decision in unfair dismissal proceedings, and constraining the grounds on which such an appeal can be made, is not difficult to discern. The apparent objective is to limit the time, costs and inconvenience associated with unfair dismissal proceedings. The object of Part 3-2 of the Act includes to establish procedures for dealing with unfair dismissal that are “quick, flexible and informal”, including that the procedures and remedies provided for ensure a “fair go all round” is accorded to both the employer and employee concerned.11 An unconstrained right of appeal, or a threshold for permission to appeal being granted which is too low, would hinder the achievement of the object of the Part.

  1. An approach which, subject to permission to appeal, requires the Full Bench to redetermine each case without the identification of error in the decision-making process is also, in our opinion, antithetical to the object of Part 3-2 and the intent behind s 400 and unlikely to have been intended.

  1. Fifth, whether a person has been unfairly dismissed does not turn on whether the person’s dismissal was, in fact, harsh, unjust or unreasonable, but whether the Commission is “satisfied” of that matter. DP World points out that the fact an exercise of power depends on a judicial officer or decision-maker being “satisfied” as to a state of affairs does not necessarily mean that it involves the exercise of a discretion.[30] However, the fact that “satisfaction” is built into s 385(b) of the Act supports the view that the section permits a range of permissible outcomes. That is particularly so in circumstances in which the matter about which the Commission is required to be satisfied itself involves a value judgment and a considerable degree of subjectivity.[31] It is also relevant that the jurisdiction to adjudicate unfair dismissal claims is conferred on the Commission as a specialist tribunal which is conferred with an array of powers to inform itself in any manner it considers appropriate in forming the state of satisfaction required by s 385(b).[32]

  1. The closest equivalent provision to s 385(b) to which DP World referred is the decision of the Western Australian Court of Appeal in Shannon v Permanent Custodians Limited [2020] WASCA 198. That case concerned the power of the court to reopen a transaction if satisfied that a contract, mortgage or guarantee or change to a contract, mortgage or guarantee was unjust. In making such a finding, the court is required to have regard to the public interest and to all the circumstances of the case and may have regard to a list of identified matters.[33] Both parties submitted that the correctness standard applied on appeal. The court accepted that the concession was correct by analogy to determinations as to whether a transaction answers the description of being “unconscionable”.[34] Given the difference in the statutory context and the fact that the point was conceded, we do not think the decision is of great assistance. The case perhaps demonstrates the importance of the consideration including not merely the standard to be applied in the making of a decision, but also the statutory context, the nature of the decision-maker and the consequences of a standard being satisfied.

  1. For these reasons, a finding that a dismissal was harsh, unjust or unreasonable involves the exercise of a discretion in the broad sense[35] and such a determination can only be overturned on appeal by identification of relevant error in the decision-making process in the sense discussed in House v The King. In our opinion, the answer is even more straightforward in case of a decision as to whether the Commission is satisfied that reinstatement is “inappropriate” for the purposes of s 390(3)(a). Each of the considerations to which we have referred to in relation to s 385(b) are relevant to assessing the nature of the decision to be made under s 390(3)(a) as to “satisfaction” of the “appropriateness” of reinstatement. In our opinion, that is sufficient to resolve the question.

  1. The context even more strongly suggests that the finding required by s 390(3)(a) involves a discretionary determination and that the Act tolerates a range of outcomes. Section 390(1) provides that the Commission “may” order reinstatement, or the payment of compensation, if the requirements of the section are met. That is suggestive of a discretion and that the Commission might award no remedy even if the dismissal is found to be harsh, unjust or unreasonable.[36] The Act does not dictate any considerations to which the Commission is required to have regard in deciding if reinstatement is inappropriate. The alternative remedy of compensation, for which provision is made in s 390(3)(b), may be awarded if the Commission “considers” the payment of compensation “is appropriate in all the circumstances”. An order for the payment of compensation must, in accordance with s 392(1), be compensation in lieu of reinstatement and the Commission is required to take into account the matters listed in s 392(2). Plainly, the Act intends to confer a broad discretionary power on the Commission to determine questions of remedy and contemplates that members of the Commission might permissibly arrive at different conclusions without falling into appealable error.

  1. The matter is also not free from authority. In Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537, judicial review was sought from a decision of the Full Bench of the Commission in an unfair dismissal case. Among other things, the Full Bench was alleged to have applied the incorrect approach on appeal by substituting its own assessment of unfairness without identifying appealable error. Buchanan J (with whom Allsop CJ and Siopis J agreed) summarised the nature of the decisions to be made by a member of the Commission in determining an unfair dismissal claim in the following terms:[37]

The present case first required a broad evaluation about whether the termination of the applicant’s employment was “harsh, unjust or unreasonable”. In Coal & Allied an evaluation of a similar broad kind was referred to at [20] as a discretionary judgment “in a broad sense”. The decision about a remedy was more classically discretionary, but that point was only reached after a conclusion of unfair dismissal.

The reference to House v The King (1936) 55 CLR 499 at 505 which was given in Coal & Allied at [21] was related to “judicial discretion” but the principles in House v The King have come to be applied in a broader context. In appeals in some other fields of judicial enquiry which involve a two-step examination (satisfaction of conditions for judicial examination, followed by discretionary relief) appellate review of the first stage (as well as the second) also depends on House v The King principles even where the first stage may be described as a question of ultimate fact, or “jurisdictional” (see eg Singer v Berghouse (1994) 181 CLR 201 at 212). The underlying rationale concerns appellate restraint.

  1. DP World contends that the question was not argued in Toms, and a case is not authority for a proposition that was not argued.[38] Be that as it may, we respectfully embrace the observations of Buchanan J. One question raised in Toms was whether the Full Bench had adopted an incorrect approach on appeal by substituting its own view as to whether the dismissal was harsh, unjust or unreasonable without identifying error. Although no party contended that the correctness standard applied to that question, the standard of review on appeal was central to the decision of the Full Court. Buchanan J’s statement represents the observations by an experienced judge with a background in industrial law and followed a lengthy account of the history and nature of unfair dismissal provisions.[39] We do not believe we should disregard the reasoned conclusion of Buchanan J with whom the then Chief Justice and Siopis J agreed. In any event, as will be apparent, we consider his Honour is correct.

Remaining grounds of appeal

  1. The conclusions we have reached in relation to the standard of appellate review mean that grounds 6 and 12 in the notice of appeal must be rejected. Those grounds simply ask the Full Bench to form a different view as to whether Mr Witherden’s dismissal was harsh and unreasonable or reinstatement was inappropriate. The remaining grounds of appeal relied upon by DP World assume, contrary to the submissions which we have just addressed, that it is necessary to demonstrate error of a type referred to in House v The King. Given that we have concluded error of that type must be established, it is necessary to consider the specific errors alleged by DP World. In considering the remaining grounds, the question for the Full Bench is whether there was a defect in the decision-making process engaged in by the Deputy President of a relevant type.

Alleged mistakes of fact (Grounds 1(a), 1(b) and 4(e))

  1. In ground 1(a), 1(b) and 4(e), DP World alleges certain factual errors in the decision of the Deputy President and make an associated procedural fairness complaint. Section 400(2) of the Act means that, in an unfair dismissal case, an appeal in relation to a question of fact may only be made on the ground that the decision involved a significant error of fact. Section 400(2) requires an evaluative judgment as to the significance of an error of fact.[40] We interpolate that the “significance” of the fact is to be assessed by reference to its importance to the decision being made, in this case, as to whether Mr Witherden’s dismissal was harsh and unreasonable and that reinstatement was not inappropriate.[41]

  1. Grounds 1(a) and 4(e) both concern the finding of the Deputy President that there was “no indication in the evidence” that Mr Eadie considered whether rehabilitation was an appropriate outcome although it is provided for in the AOD Policy.[42] DP World contends that if this statement is understood as a finding that Mr Eadie did not consider rehabilitation it is wrong. If it is to be understood as merely a reference to the absence of evidence, DP World submits it is irrelevant. To the extent that DP World advances this ground founded upon an alleged error of fact, we accept that it alleges a significant error of fact. The failure to consider the option of rehabilitation, or the absence of evidence of that matter, was one of the matters referred to by the Deputy President as ameliorating the seriousness of Mr Witherden’s conduct and had some importance in the decision.

  1. We think the better view is that the Deputy President’s statement that there was “no indication in the evidence that Mr Eadie considered whether rehabilitation was appropriate” should be understood to be a finding that he did not consider rehabilitation. The Deputy President considered that the absence of evidence of consideration being given to rehabilitation is a matter which weighed in favour of a finding that the dismissal was unfair. That could only logically be the case if the absence of evidence, in the mind of the Deputy President, demonstrated that the option of rehabilitation had not been considered.

  1. The basis upon which DP World contends that such a finding is wrong is that Mr Witherden had indicated, in his response to the show cause correspondence, that he was seeking treatment for drug use. Mr Witherden’s response included:

The positive drug test has been an enormous wakeup call for me. If you show me mercy and permit me to continue working at DP World, I believe that I will look back on this terrible moment in my life as a blessing in disguise. I have used cocaine recreationally at times over the years – always when I was on lengthy periods of leave from work. This positive test has made me realise how much recreational drug use can impact my life. Drug use threatens my livelihood and could subject me to criminal prosecution. I’m done with using illicit drugs. I have engaged with Hunterlink, and I am committed to continuing with all recommended treatment plans to give me the tools that I need to ensure sobriety for the rest of my life. I have attached to his email a referral letter confirming that I am undergoing counselling with Hunterlink.

  1. In the letter of termination dated 7 June 2024, Mr Eadie indicated that he had considered Mr Witherden’s responses. In his witness statement in the proceedings, Mr Eadie also stated that, in deciding to terminate his employment, he had considered the matters raised by Mr Witherden leading up to and at the meeting on 7 June 2024. DP World says, given that evidence, a finding that Mr Eadie did not consider rehabilitation was wrong.

  1. We do not accept that DP World has demonstrated that the finding of the Deputy President is wrong. In both the letter of termination and his witness statement filed in the proceedings, Mr Eadie set out in considerable detail his reasoning process in deciding to terminate Mr Witherden’s employment and the specific matters he considered. He does not suggest that he considered referring Mr Witherden to rehabilitation as an alternative to dismissal. In those circumstances, the conclusion that he did not consider rehabilitation was plainly open even though Mr Eadie said he considered Mr Witherden’s response.

  1. Furthermore, the submission misunderstands the reference to rehabilitation in the Deputy President’s reasons. Mr Witherden’s response indicated that he had himself taken steps to seek counselling through a service known as Hunterlink. The Deputy President, on the other hand, referred to the availability of rehabilitation through the AOD Policy as a potential option to be followed if an employee is experiencing drug or alcohol issues. The AOD Policy provides for DP World to itself provide rehabilitation services to employees either through the DP World Employee Assistance Program or referral to specialist services. The AOD Policy provides, in part:[43]

Where an Employee comes forward of their own volition and asks for assistance with alcohol and / or other drug dependency issues prior to a test being conducted, DP World will support them. In these circumstances an Employee Support Plan will be developed and implemented to assist the Employee’s recovery and there will be no disciplinary action.  

Where an Employee tests positive (whether at the initial screening or confirmatory test), it will be at DP World’s discretion whether rehabilitation support is offered to the Employee. In these circumstances, disciplinary action may still be taken. 

  1. The AOD Policy goes on to provide for DP World to support an employee who has an alcohol or other drug dependency issue through the development of an Employee Support Plan. The Deputy President was plainly referring to the facility for rehabilitation to be offered and provided through the AOD Policy when she found that Mr Eadie had not considered rehabilitation. The Deputy President referred to the failure to consider whether rehabilitation was appropriate “although it was available under the AOD Policy”.[44] The Deputy President earlier said:

[189] In my view, Mr Witherden’s disclosure to Mr Eadie and Ms Banks on 7 June 2024 about his mental health issues should have prompted consideration of whether rehabilitation support would be offered to Mr Witherden under the AOD Policy. Mr Eadie’s actions in providing Mr Witherden with six months access to DP World’s EAP, given his personal circumstances, demonstrate that Mr Eadie had regard to Mr Witherden’s mental health issues. However, there is no indication that Mr Eadie ever considered that Mr Witherden’s breach of the AOD Policy was health related and that rehabilitation support was an option that was available for him to consider. The AOD Policy contemplates that an employee who is being offered rehabilitation support may have recorded a positive test result, by requiring that the employee undergo target testing for a period of 12 months from the test result. It is difficult to understand why Mr Witherden was not even considered for rehabilitation support, given his lengthy period of service, his generally favourable employment record and that he has not previously tested positive, despite being tested many times previously. Further, this was not a situation where Mr Witherden caused a safety incident, consumed drugs or alcohol at work or was intoxicated at work. All of the circumstances point to Mr Witherden being deserving of a second chance and that any concern by DP World about Mr Witherden attending work in the future after consuming drugs could be mitigated by placing Mr Witherden on an Employee Support Plan and subjecting him to target testing

  1. The assertions of Mr Eadie that he had considered Mr Witherden’s responses did not suggest that he had considered referral to support or rehabilitation in accordance with the AOD Policy. That is the primary basis upon which DP World alleges that the factual finding was in error. We do not agree that demonstrates an error. There was, in our opinion, ample basis upon which the Deputy President could have found that Mr Eadie did not consider whether referral to rehabilitation support was appropriate rather than dismissal. To the extent it is submitted that whether DP World considered alternatives to dismissal available under its own policies is an irrelevant consideration, we do not agree. The failure to consider available alternatives to dismissal, particularly in circumstances in which Mr Witherden had disclosed mental health and drug dependency issues, was capable of being relevant to whether the dismissal was harsh or unreasonable.[45]

  1. Ground 4(e) contends that DP World was denied procedural fairness in relation to the findings of the Deputy President concerning rehabilitation. In short, it says that, in the absence of pleading or contention by Mr Witherden that this was a finding that should be made and that it was a relevant consideration, it was procedurally unfair to make the observations about the lack of evidence and use that matter to weigh in favour of a finding of unfairness. The submission is without foundation. Mr Witherden’s written submissions filed in advance of the hearing contended that one matter favouring a finding of harshness was “DP World’s failure to consider options other than dismissal”.[46] Mr Eadie was cross-examined as to whether he had considered referring Mr Witherden to rehabilitation.[47] The advocate appearing for Mr Witherden put in closing submissions that DP World should have considered options other than dismissal for an employee with 25 years services for disclosed drug dependency issues, including referring to the fact that the AOD Policy provided for rehabilitation, and submitted that the failure to consider other options bears in favour of a finding of unfairness.[48] Counsel for DP World addressed the issue in submissions in reply and made no complaint about the matter being raised.[49] There was no denial of procedural fairness.

  1. In relation to ground 1(b), DP World contends that the Deputy President erred in finding that Mr Witherden was cooperative with the investigation. It submits that the basis for the Deputy President’s finding is not apparent and unexplained. We do not accept the submission. The Deputy President explained in some detail the evidence upon which she based her conclusion that Mr Witherden had cooperated with the investigation.[50] That evidence included the detailed responses given by Mr Witherden which included disclosing personal information and conduct that would not otherwise be known to his employer. In our opinion, it justified a finding that Mr Witherden was cooperative. DP World also contends that Mr Witherden was not cooperative because he incorrectly told Mr Eadie that he had not moved any containers on 27 May 2024 prior to being drug tested. The Deputy President considered that matter and, having seen and heard Mr Witherden give evidence, accepted that he was not deliberately dishonest or misleading. DP World does not suggest that finding was in error. In any event, it was plainly a finding likely to be influenced by having seen and heard the evidence being given and there is no basis upon which the Full Bench could find it was erroneous.

Conclusions in relation to the AOD Policy (Grounds 1(d), 2(b), 3(b)(3) and 4(a))

  1. The second group of grounds relied upon by DP World concern the findings of the Deputy President in relation to the terms of the AOD Policy and the adequacy of the steps taken by DP World to explain the effect of the AOD Policy. The precise nature of the complaint is somewhat difficult to discern. Grounds 1(d), 2(b), 3(b)(3) and 4(a) as drafted allege the Deputy President mistook the facts by finding the information available in relation to the AOD Policy was inadequate, misapprehended the statutory task by engaging in an inquiry as to how information could or should have been presented to employees, failed to have regard to a relevant consideration by not considering explanatory material provided to employees and had regard to an irrelevant consideration by taking into account whether information available to other employees was adequate. In written and oral submissions, it was put differently. DP World then submitted that the asserted inadequacies of the AOD Policy were irrelevant unless Mr Witherden himself misunderstood the policy and that the Deputy President made no finding to that effect.

  1. It is convenient to consider the relevance submissions first. The assertion that Mr Witherden was under no illusions that he had breached the AOD Policy is based on no more than his recognition that he breached the policy because he returned a positive test result. It was always part of Mr Witherden’s case that he did not understand that he might test positive and that he did not understand the significance of the cutoff levels or the circumstances in which a positive test might be returned. For example, in his witness statement, Mr Witherden explained that he did not think he was impaired in any way and said:[51]

While I was generally aware of DP World’s drug and alcohol policy, DP World did not explain to me what it means to be “fit for work” under the policy. The company also never explained to me the significance of cut-off levels and how the Australian Standards apply. When I attended work on 27 March 2024, I believed that I was fit for work because I knew that I was not impaired.

  1. Mr Witherden later explained that, while the policy says that employees breach the policy if, in relation to “cocaine and metabolites”, they test in excess of 50 ng/ml for saliva, and 300 ng/ml for urine, nobody from DP World ever explained what those numbers mean. He said it was never explained how long metabolites would remain detectable in his system and that he would not have attended work if he knew he might test positive.[52] The Deputy President accepted that evidence.[53] The alleged deficiencies in the AOD Policy were relevant in light of the evidence and findings as to the limitations in Mr Witherden’s understanding of the effect of the policy and the circumstances in which he might be in breach. The findings of the Deputy President did not disclose any misapprehension of the statutory task or deprive DP World of procedural fairness. The issue was squarely raised.

  1. The complaint, in ground 1(d), that the Deputy President erred in concluding that the information provided in the AOD Policy was inadequate does not allege an error of fact at all. There is no dispute of fact as to the content of the AOD policy. The Deputy President identified that, although the AOD Policy stated the cut off levels of particular substances for which testing occurred, it does not make clear that testing detects inactive metabolites and that a positive test may occur even after the parent drug has left the employee’s system and the person is not regarded as being intoxicated.[54] There is no dispute this is an accurate description of the content of the AOP Policy. DP World does no more than ask the Full Bench to form a different view as to whether the information provided to employees was appropriate or adequate. That submission does not identify error of a type described in House v The King. In any event, we do not find any error in the Deputy President’s assessment. Furthermore, in relation to ground 3(b), the Deputy President’s discussion of what information could or should have been included in the AOD Policy constituted part of her consideration of the adequacy of the policy and involved no misunderstanding of the statutory task.

  1. In relation to ground 3(b)(3), counsel for DP World made clear in oral submissions that the ground alleges a failure to take into account a relevant consideration. The Deputy President did not fail to take into account other explanatory material provided to employees, including Mr Witherden, outside the AOD Policy itself. In that respect, DP World relied on an email sent to employees by Mr Eadie on 27 June 2022. The Deputy President set out extracts from the email in her decision and expressly considered its contents.[55] The suggestion that she failed to take the email into account, even if one piece of evidence is correctly described as a relevant consideration, is unsustainable. Finally, in relation to ground 4(a), the Deputy President did not erroneously focus on the information provided to other employees. The Deputy President simply referred, at a number of places in the decision, to information provided by DP World to employees generally, including Mr Witherden.[56] There was no suggestion in the evidence that different information was provided to Mr Witherden than to other employees. There was no error in those passages or denial of procedural fairness.

Alleged preoccupation with intoxication (Ground 4(d))

  1. In ground 4(d), DP World contends that the Deputy President erred in taking into account that Mr Witherden was not intoxicated on account of cocaine when the inquiry should have been whether there was a risk Mr Witherden was impaired.

  1. In its written submissions, DP World alleges that the Deputy President was preoccupied with whether or not Mr Witherden was intoxicated. DP World submits that the reason for Mr Witherden’s dismissal was that he breached the AOD Policy, not that he was intoxicated. It says that Mr Witherden introduced the concept of impairment in support of his case on harshness. DP World submits that the concept of intoxication was not one that could have rationally affected the assessment of whether the dismissal was harsh, and that the relevant inquiry was whether there was a risk of impairment for any reason. DP World submits that the Deputy President had regard to an irrelevant consideration in taking into account to the fact that Mr Witherden was not intoxicated by cocaine in considering whether the dismissal was harsh and unreasonable.[57]

  1. The distinction between intoxication and other causes of impairment was canvassed at considerable length by the experts who gave evidence, namely, Professor Weatherby, Dr Lewis and Dr Williams. In summary, Professor Weatherby’s evidence was that as cocaine has a very short half-life in the human body, there would be no cocaine present, and no intoxication or impairment due to cocaine on 27 May 2024 at 7.28 am. Dr Lewis and Dr Williams agreed that there would be no intoxication due to cocaine on 27 May 2024 at 7.28 am and that benzoylecgonine and ecgonine-methyl-ester metabolites are both pharmacologically inactive and have no intoxicating effects. However, both Dr Lewis and Dr Williams said that cocaine users can be impaired following the withdrawal of the drug, including impairment as a result of mood changes, sleep deprivation and cognitive impairment such as impulsiveness and exhaustion.[58]

  1. The Deputy President considered that evidence at length. The Deputy President plainly considered the potential for impairment both as a result of intoxication and the residual hangover effects of drug use. The Deputy President concluded that, although Mr Witherden was not intoxicated at the time he attended work, she could not rule out that there was a risk of impairment as a result of the hangover effects of drug consumption. After referring to the decision in Sydney Trains v Goodsell[2024] FWCFB 401; (2024) 335 IR 1, the Deputy President stated her conclusion as follows:

[151] It is clear from the Full Bench’s reasoning that hangover effects are relevant to considerations of risk of impairment. A separate issue arises as to whether employees of DP World were on notice that the AOD Policy is intended to manage risks associated with hangover effects in addition to intoxication, which is dealt with below. However, for the purpose of assessing whether there was a risk of Mr Witherden being impaired when he attended work on 27 May 2024, I am required to have regard to hangover effects as well as intoxication. The urine test did not detect cocaine, so I find that there is no evidence to support a finding that Mr Witherden was intoxicated by cocaine when attending work on 27 May 2024. Further, there is no evidence to support a finding that Mr Witherden was actually impaired when attending work on 27 May 2024. However, in circumstances where Mr Witherden admitted using cocaine 24 hours before attending work on 27 May 2024 and Professor Weatherby’s evidence is that tiredness and restlessness occur for a day or two after cocaine use, I cannot rule out the possibility that Mr Witherden was impaired by tiredness or hangover effects when he attended work on 27 May 2024. Accordingly, I am unable to make a finding that there was no risk of impairment when Mr Witherden attended work on 27 May 2024. 

  1. As we understand the submission of DP World, it is that the only relevant issue is that of impairment rather than the cause of the impairment. Intoxication, it says, is irrelevant. In argument, counsel for DP World accepted that the conduct of Mr Witherden would have been more serious if he had attended work when intoxicated in the sense that he was affected by the acute stimulant effects of cocaine consumption. It must follow, in our opinion, that the fact Mr Witherden was not intoxicated when he attended work is capable of being considered relevant to an assessment of the seriousness of his conduct.

  1. Different decision-makers may have accorded the question of intoxication different or no weight in the overall assessment as to whether the dismissal was harsh, unjust or unreasonable. That Mr Witherden was not intoxicated does not mean that his conduct was not serious. The Deputy President accepted it was.[59] However, we do not accept that, in the circumstances of this matter, intoxication was irrelevant. The Deputy President also considered the question of whether there was a risk that Mr Witherden was impaired as a result of the hangover effects of his drug use. The Deputy President concluded that she was unable to make a finding that there was no risk of impairment and took the risk of impairment into account in assessing the seriousness of the conduct of Mr Witherden.[60] There was no error in the reasoning of the Deputy President in this regard. The Deputy President did not take into account an irrelevant consideration.

Witherden’s refusal to accept risk of impairment (Ground 3(b)(1) and 9A)

  1. In ground 3(b)(1) and 9A, DP World contends that the Deputy President failed to take into account that Mr Witherden refused to accept that there was a risk he was impaired when he attended for work or that he had put the safety of his colleagues at risk. The short answer to the ground is that the Deputy President plainly did consider the evidence given by Mr Witherden in relation to whether he accepted he might have been impaired. The Deputy President said:

[137] DP World was also critical that Mr Witherden did not accept during the hearing that there was any risk of impairment when he attended work on 27 May 2024. Much of the hearing was spent debating whether impairment referred to intoxication or hangover effects from consuming cocaine with DP World arguing that impairment extended to hangover effects and Mr Witherden arguing it was confined to intoxication. Professor Weatherby, the expert engaged by Mr Witherden unequivocally stated in his report that Mr Witherden could not have been impaired when he commenced work on 27 May 2024 but stated that being tired and restless can occur for a day or two after cocaine use. This appears to indicate that Professor Weatherby equated impairment with intoxication rather than hangover effects. In the circumstances, given the differences of opinion between the experts about the meaning of impairment, I think little turns on Mr Witherden’s unwillingness to concede there was any risk of impairment when he attended work on 27 May 2024. The fact that Mr Witherden said in his email to DP World that he understood that it is unacceptable, especially in a safety critical workplace to attend work with detectable traces of drugs in his system demonstrates the seriousness with which he regarded the matter.

  1. That passage demonstrates that the Deputy President was conscious of and took into account the submission that Mr Witherden did not accept during the hearing that there was a risk of impairment when he attended work on 27 May 2024. The Deputy President considered that this evidence had to be seen in light of the differing evidence as to whether impairment referred to only intoxication or also hangover effects. The Deputy President was, as a result of other evidence, satisfied that Mr Witherden accepted the seriousness of the matter.

  1. The highest the submission of DP World was put, in this respect, is that the Deputy President did not repeat reference to Mr Witherden’s evidence concerning the risk of impairment later in the decision. In our view, that submission asks the Full Bench to adopt an unduly narrow and pedantic reading of the decision. Whether or not a matter has been considered can be a matter of inference drawn from the reasons as a whole. Generally, an inference that a matter has been overlooked should not too readily be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point.[61] We do not accept that the Deputy President failed to take into account Mr Witherden’s evidence as to whether there was a risk of impairment.

Whether finding that decision was harsh and unreasonable was unreasonable (Ground 5)

  1. DP World submits that, leaving aside the other errors it alleges, the conclusion of the Deputy President that Mr Witherden’s dismissal was harsh and unreasonable was “unreasonable and plainly unjust” in the sense discussed in House v The King.

  1. In that respect, DP World relied upon the balance of its submissions. In short, it refers to the following matters: that the Deputy President accepted that there was a valid reason for dismissal, being Witherden’s breach of the AOD Policy by attending for work, in a safety critical environment, with cocaine metabolites still in his system; the Deputy President accepted that Witherden was aware of the AOD Policy and that his breach of it was a “serious matter”; the Deputy President accepted that Witherden was notified of the reason for his dismissal and afforded an opportunity to respond; Mr Witherden acknowledged that he was aware that it was unacceptable to attend for work with drugs in his system; Mr Witherden used cocaine heavily for three days, including up to the day before his shift on 27 May 2024. DP World contends that, when all those matters are considered, the conclusion of the Deputy President was “lacking common sense having regard to the terms, scope and purpose of the statutory source of power”.[62]

  1. The relevant passage from House v The King is as follows:[63]

It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

  1. On one view, the so-called “second limb” of House v The King is available only where it does not appear how the primary decision-maker has reached the result embodied in their order. However, that is not the approach which has been adopted. An appellate tribunal is able to set aside a discretionary decision if it concludes it is unreasonable or plainly unjust even where detailed reasoning is provided.[64] Although the test to be applied on appeal to the Full Bench of the Commission may be distinguishable from the approach adopted on judicial review on grounds of unreasonableness,[65] it has some commonalities. Mere preference for a different result is insufficient. The Full Bench would need to conclude that the decision of the Deputy President was outside the range of permissible discretionary decisions such that there had been a failure to properly exercise the discretion reposed in the decision-maker.

  1. We do not accept that is so. The Deputy President found that Mr Witherden had contravened the AOD Policy and acknowledged that this was a serious matter. The Deputy President explained why she regarded the dismissal as harsh and unreasonable notwithstanding that Mr Witherden had contravened the AOD Policy and there was a valid reason for dismissal. The Deputy President explained the reasons for her conclusion in detail and at great length. The Deputy President summarised the considerations she considered significant as follows:

[210] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of Mr Witherden was harsh and unreasonable because the seriousness of Mr Witherden’s breach of the AOD Policy is outweighed by the following matters:

·Mr Witherden was not intoxicated by cocaine;

·DP World relied upon a ‘high range’ level with respect to inactive metabolites to attribute a greater level of seriousness in relation to Mr Witherden’s conduct which was not available when the expert evidence is considered;

·There is no indication in the evidence that DP World considered whether rehabilitation was appropriate although it was available under the AOD Policy;

·The information available to Mr Witherden and other employees about the AOD Policy was inadequate, particularly that it tests for inactive metabolites and that detection of these will result in a positive test even after the parent drug has left the employee’s system and the person is not regarded as being intoxicated;

·Employees should have been explicitly advised that the AOD Policy is intended to manage risks associated with hangover effects in addition to intoxication;

·Mr Witherden’s mental health issues; and

·Mr Witherden’s lengthy period of satisfactory service.

  1. Those reasons rationally support the conclusion that the Deputy President reached. In our opinion, the facts are not such that only one outcome was possible.[66] We reject the submission that the conclusion of the Deputy President was unreasonable or plainly unjust and liable to be set aside on that basis.

Alleged errors in conclusion on reinstatement (Grounds 7 to 11)

  1. The Deputy President concluded that reinstatement was not inappropriate. The Deputy President made orders that Mr Witherden be reappointed to the position in which he was employed immediately before the dismissal and maintaining the continuity of his employment.[67] The Deputy President declined to make orders in relation to remuneration lost between the date of dismissal and reinstatement.

  1. The grounds of appeal directed at the Deputy President’s conclusions on reinstatement can be dealt with relatively briefly. Leaving aside ground 12 which is directed at the standard of appellate review, only grounds 7, 8 and 9A are pressed. We have already addressed ground 9A. For the reasons we have given above, the Deputy President did not fail to have regard to the evidence given by Mr Witherden as to whether he accepted that there was a risk of impairment or that he put the safety of other employees at risk. The Deputy President directly addressed that matter and there is no reason to infer she then overlooked that matter in considering the appropriateness of reinstatement.

  1. Ground 7 alleges that the Deputy President made a significant error of fact in her findings as to Mr Witherden’s past compliance with the AOD Policy. The subject of the ground is the following passage in the decision:

[218] … The reality is that Mr Witherden has complied with the AOD Policy on every occasion that he has attended work since it was introduced in 2012, apart from on 27 May 2024. This means that Mr Witherden has complied with the AOD Policy on literally thousands of occasions which should give DP World confidence that the events of 27 May 2024 are a ‘one off’ transgression. DP World already has measures in place to ensure that the safety of its operations at the Botany Terminal are not undermined by employees who have alcohol and other drug dependence issues such as target testing and rehabilitation programs which it can require Mr Witherden to participate in.

  1. DP World submits that there was no evidentiary foundation for those findings and that, at most, Mr Witherden would have undergone drug testing on 10 or 11 occasions in the past. In our opinion, the submission again seeks to read the reasons of the Deputy President in an unduly narrow and pedantic manner. We do not understand the Deputy President to have said anything other than that Mr Witherden had not, in the past, tested positive to drugs or alcohol in the workplace. There is no dispute that is correct. Different decision-makers may have attached different weight to that matter in the circumstances. However, no error is demonstrated in the discretionary assessment made by the Deputy President.

  1. Finally, ground 8 concerns a single sentence in the Deputy President’s consideration, namely, the indication that she believed that Mr Eadie’s view that he had lost trust and confidence in Mr Witherden was likely to have been influenced by the perception that Mr Witherden’s test result was “high range”.[68] DP World contends that this matter was not put to Mr Eadie in cross-examination or part of Mr Witherden’s case and that it was denied procedural fairness in relation to the issue. We do not accept that submission. The evidence indicated that DP World generally, and Mr Eadie in particular, regarded the level of the reading returned by a drug test as indicative of the seriousness of the breach of policy. The Deputy President found that the expert evidence demonstrated that the level of inactive metabolites has no relationship with the likelihood of impairment or the objective seriousness of the breach.[69] There is no challenge to that finding.

  1. That the level of the reading returned by Mr Witherden’s test was considered by DP World and Mr Eadie to be relevant to the seriousness of his conduct was squarely raised and canvassed in the proceedings. The proposition that detection of a “high range” level is indicative of a serious breach is perpetuated by the AOD Policy itself.[70] The show cause letter dated 3 June 2024 and the letter of termination dated 7 June 2024, both written by Mr Eadie, stated that “the level of Benzolecgonine detected is more than 16 times the high range detection level and the level of Ecgonine methyl ester detected is more than 10 times the high range detection level” and this constitutes a “serious breach” of the AOD Policy. Mr Eadie referred, in his evidence, to the assertion that the test result was “high level”.[71] In its written submissions at first instance, DP World relied on the “high range” test result as indicating the severity of Mr Witherden’s conduct and, in turn, relied upon the severity of the conduct in support of a submission that reinstatement would not be appropriate and that it was understandable why it had lost trust and confidence in Mr Witherden.[72]

  1. In the circumstances, no unfairness was occasioned by the reasoning of the Deputy President. Mr Eadie’s views on the seriousness of Mr Witherden’s conduct were plainly influenced by the level of the reading returned by Mr Witherden’s test and the Deputy President was justified in making such a finding. Furthermore, in its written submissions, DP World itself relied on the seriousness of Mr Witherden’s conduct, including the level of the reading, as a matter relevant to reinstatement and its asserted loss of trust and confidence in Mr Witherden. In that context, we do not think it was necessary for the proposition that the same matter affected Mr Eadie’s views on reinstatement to be separately put to him in cross-examination.

Conclusion and disposition

  1. For these reasons, permission to appeal should be granted. However, we do not believe any error has been demonstrated in the decision of the Deputy President. The appeal should be dismissed. The Full Bench makes the following orders:

(a)Permission to appeal is granted; and

(b)The appeal is dismissed.

VICE PRESIDENT

Appearances:

M Follett KC with J McLean, of counsel, instructed by B Milne of Kingston Reid for the appellant.
L Saunders, of counsel, instructed by K Bond of the Maritime Union of Australia for the respondent.

Hearing details:

Friday 11 April 2025.
Sydney (in person).


[1] Witherden v DP World Sydney Limited[2025] FWC 294 at [230].

[2] [2025] FWC 294 at [4].

[3] PR784738.

[4] Fair Work Act 2009 (Cth), s 604(2).

[5] Wan v Australian Industrial Relations Commission [2001] FCA 1803; (2001) 116 FCR 481 at [30] (Spender, Kiefel, Dowsett JJ); Ferrymen Pty Ltd v Maritime Union of Australia[2013] FWCFB 8025; (2013) 238 IR 258 at [9]-[12].

[6] Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [34] and [43] (Buchanan J); Workpac Pty Ltd v Bambach[2012] FWAFB 3206; (2012) 220 IR 313 at [14]; Barwon Health – Geelong Hospital v Colson[2013] FWCFB 4515; (2013) 233 IR 364 at [6].

[7] Virgin Australia Airlines Pty Ltd v Dylan Macnish [2025] FWCFB 6 at [22].

[8] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).

[9] Moore (a pseudonym) v The King [2024] HCA 30; (20240 98 ALJR 1119 at [14] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

[10] Sydney Trains v Goodsell[2024] FWCFB 401; (2024) 335 IR 1 at [75]. See also Millington v Traders International Pty Ltd[2014] FWCFB 888 at [65].

[11] See, for example, Nguyen v Vietnamese Community in Australia[2014] FWCFB 7198 at [9], Moszko v Simplot Australia Pty Ltd[2021] FWCFB 6046; (2021) 310 IR 373 at [45] and Virgin Airlines Australia Pty Ltd v Macnish[2025] FWCFB 6; (2025) 337 IR 32 at [61]-[63].

[12] Shannon v Permanent Custodians Limited [2020] WASCA 198 at [159]-[161].

[13] Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 at [47] (Kiefel CJ and Bell J); Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 at [167] (Callinan J).

[14] McMurchy v Employsure Pty Ltd [2022] NSWCA 201; (2022) 409 ALR 199 at [130].

[15] GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [17].

[16] Dwyer v Volkswagen Group Australia Pty Ltd [2023] NSWCA 211; (2023) 381 FLR 32 at [51]-[52].

[17] Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; (2018) 339 FLR 244 at [253].

[18] R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at [100]-[101]; R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at [61].

[19] Warren v Coombes (1979) 142 CLR 531 at 553 (Gibbs ACJ, Jacobs and Murphy JJ).

[20] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [49] (Gageler J); Moore (a pseudonym) v The King [2024] HCA 30; (2024)98 ALJR 1119 at [16] (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ).

[21] GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 at [16] (Kiefel CJ, Gageler and Jagot JJ).

[22] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [151] (Edelman J); GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lis more [2023] HCA 32; (2023) 97 ALJR 857 at [91] (Steward J).

[23] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [152] (Edelman J).

[24] Fair Work Act 2009 (Cth), s 387(h).

[25] Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [19] (Gleeson CJ, Gaudron and Hayne JJ).

[26] See, for example, Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665 and Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537 at [43]-[46] (Buchanan J).

[27] Millington v Traders International Pty Ltd[2014] FWCFB 888 at [65].

[28] Fair Work Act 2009 (Cth), s 381(1)(b)(i) and (2).

[29] Illawarra Coal Holdings Pty Ltd (t/as South32) v Sleiman[2024] FWCFB 364 at [37].

[30] By reference to Sun v Chapman [2022] NSWCA 132 at [27] and [114]-[115] (Leeming JA) and R v Bauer [2018] HCA 40; (2018) 266 CLR 56 at [9] and [61].

[31] Deputy Commissioner of Taxation v Shi [2020] FCAFC 100; (2020) 277 FCR 1 at [89] (Lee J). Cf. Sun v Chapman [2022] NSWCA 132 at [115] (Leeming JA).

[32] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 at [153] (Edelman J);

[33] National Credit Code, s 76(1) and (2). 

[34] Shannon v Permanent Custodians Limited [2020] WASCA 198at [160]-[161] (Quinlain CJ and Tottle J) and [409] (Vaughan JA).

[35] In the sense discussed in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 at [20] (Gleeson CJ, Gaudron and Hayne JJ).

[36] Millington v Traders International Pty Ltd[2014] FWCFB 888 at [65].

[37] Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537 at [86]-[87] (Buchanan J).

[38] CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] (Gleeson CJ, Gummow and Heydon JJ); Spence v Queensland [2019] HCA 15; (2019) 268 CLR 355 at [294] (Edelman J); Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349 at [101] (Gleeson J).

[39] Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35; (2015) 229 FCR 537 at [9]-[42] (Buchanan J).

[40] Knowles v BlueScope Steel Ltd [2021] FCAFC 32; (2021) 284 FCR 111 at [46] (Flick J, Logan J agreeing).

[41] BP Refinery (Kwinana) Pty Ltd v Tracey [2020] FCAFC 89; (2020) 276 FCR 9 at [22] (Besanko, Perram and Jagot JJ).

[42] [2025] FWC 294 at [207].

[43] AOD Policy, p3.

[44] [2025] FWC 294 at [205], [207] and [210].

[45] Goodsell v Sydney Trains[2023] FWC 3209 at [165]-[169] (not disturbed on appeal in Sydney Trains v Goodsell[2024] FWCFB 401; (2024) 335 IR 1).

[46] Mr Witherden’s outline of submissions dated 6 September 2024, [12].

[47] Transcript PN522-533.

[48] Transcript PN635-640.

[49] Transcript PN749 and PN777-783.

[50] [2025] FWC 294 at [133]-[138].

[51] Witness statement of Lee Witherden, 6 September 2024, [22].

[52] Witness statement in reply of Lee Witherden, 27 September 2024, [5]-[6].

[53] [2025] FWC 294 at [153].

[54] [2025] FWC 294 at [160] and [163].

[55] [2025] FWC 294 at [161]-[162].

[56] [2025] FWC 294 at [156]-[163], [208] and [210].

[57] [2025] FWC 294 at [210].

[58] Summarised at [2025] FWC 294 at [76]-[80] and [144]-[145].

[59] [2025] FWC 294 at [201].

[60] [2025] FWC 294 at [204].

[61] WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593 at [47] (French, Sackville and Hely JJ); Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2023] FCAFC 98; (2023) 298 FCR 431 at [55] (Katzmann, Jackson and McEvoy JJ).

[62] By reference to Minister for Immigration & Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [11] (Allsop CJ).

[63] House v The King (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

[64] See discussion in Lambley v DP World Sydney Limited [2013] FCA 4 at [43]-[48] (Katzmann J).

[65] Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54; (2011) 192 FCR 78 at [48] (Buchanan J).

[66] Lambley v DP World Sydney Limited [2013] FCA 4 at [26] (Katzmann J).

[67] [2025] FWC 294 at [232].

[68] [2025] FWC 294 at [218].

[69] [2025] FWC 294 at [171]-[172].

[70] AOD Policy, p8-9.

[71] Witness statement of Scott Eadie, 24 September 2024, [20].

[72] DP World outline of submissions dated 20 September 2024, [26](d), [30], [37] and [38].

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Moore (a pseudonym) v The King [2024] HCA 30
Moore (a pseudonym) v The King [2024] HCA 30
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30