Gabriel Perez Rivas v Dampier Salt Limited

[2020] FWC 6258

[2020] FWC 6258

The attached document replaces the document previously issued with the above code on 20 November 2020.

The relevant print reference number was inserted at the end of the document.

Natasa Cosoleto

Associate to Commissioner Williams

Dated 23 November 2020

[2020] FWC 6258

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Gabriel Perez Rivas
v
Dampier Salt Limited
(U2020/7912)

COMMISSIONER WILLIAMS PERTH, 20 NOVEMBER 2020

Application for an unfair dismissal remedy.

[1] This decision concerns an application made by Mr Gabriel Perez Rivas (Mr Perez Rivas or the Applicant) pursuant to s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application was lodged on 9 June 2020. The Respondent is Dampier Salt Limited (the Respondent).

[2] At the hearing of this matter Mr Perez Rivas gave evidence on his own behalf and did not call any other persons to give evidence. For the Respondent evidence was given by Mr Wayne Carl Southey (Mr Southey), a Production Superintendent for the Respondent.

Factual findings

[3] Mr Perez Rivas was first employed by the Respondent in March 2011.

[4] At the time of his dismissal he was employed as a production operator. This position involved him operating various pieces of Heavy Machinery Equipment including loaders, dozers, graders, harvesters, and road trains on the Respondent’s mine site.

[5] The site is 10,000 square hectares in area.

[6] Mr Perez Rivas had recently been trained in ship loading, which required him to operate the Respondent’s ship loader. The ship loader is a type of fixed plant heavy equipment used to load salt onto ships.

[7] In order for Mr Perez Rivas to get to the ship loader at Mistaken Island he needed to drive through the main entrance of the mine site, across the site, through the production areas, and down to a jetty. Because of the size of the site it takes about one hour to drive from the main entrance to the ship loader.

[8] The roads Mr Perez Rivas would drive on to reach the ship loader are all private roads.

[9] The Respondent requires its employees to obtain and hold current licences, including a driver’s licence, relevant to their particular work.

[10] Mr Perez Rivas’ Letter of Offer, which he signed as accepting in 2011, includes the following clauses:

“Licences

DSL may require you to hold licences and certificates that are relevant to your work.

Should you relinquish or cease to hold a licence you are required to hold in order to carry out your role, your continued employment with DSL may be reviewed.

……

Policies and Procedures

It is a condition of employment that all employees comply with all lawful directions by the Company in relation to workplace practices and procedures and with the Company's approved policies, practices and procedures as amended from time to time. Such policies, practices and procedures are deemed to be incorporated into and form part of this Contract of Employment.”

[11] In addition clause 5.2 of DSL's Vehicle and Driving Procedure (Vehicle Policy) provide that:

"No person drives a vehicle unless they are trained, competent, tested and licensed to operate that vehicle in accordance with the relevant Dampier Salt Limited Training and Assessment standards";….

"Light Vehicle drivers shall:

•  Hold a current motor vehicle driver's licence valid in Western Australia"'….

"Mobile equipment operators shall: Hold current motor vehicle driver's licence valid in Western Australia (International Driver's licences will not be accepted), with no restrictions (e.g. automatic transmission only Class C-A, "E" or "P" plates)..."

"As a minimum, 'E' and 'P' plate drivers are not permitted to drive company or personal vehicles for Dampier Salt Limited work related purposes without the written permission of the Registered Manager or General Manager.”

[12] The enterprise agreement which covered and applied to Mr Perez Rivas’ employment, The DSL Employee Agreement 2009 (2009 EA), contains a clause in the following terms:

“18. Licences

Employees will be required to hold current and valid licences, certificates or Dampier Salt qualifications that are relevant to their role.

Dampier Salt shall facilitate and pay costs associated with obtaining licences and certificates required by Dampier Salt. This does not include a standard driver's licence.”

[13] Mr Perez Rivas also undertook training on the Vehicle and Driving Procedure and successfully passed a test demonstrating his understanding of these requirements.

[14] Mr Perez Rivas was also required to complete a declaration providing a copy of his current driver’s licence every year.

[15] Mr Perez Rivas says that on 4 January 2020 his partner of 18 years and mother of two small children finished their relationship and moved on with her life. He says this brought him much sadness and it took a hit on his mental health.

[16] On 24 January 2020, whilst driving on public roads, Mr Perez Rivas was stopped by the police and breath tested. He had been drinking. The subsequent breathalyser test at the police station showed a reading of 0.092.

[17] Consequently, he immediately lost his licence for two months until a later court hearing.

[18] Mr Perez Rivas had been due to return from a period of annual leave on 26 January 2020 but did not return as expected. Mr Perez Rivas at the time apparently told the Acting Superintendent, Mr Maroney, that he was not returning because he had some family issues he was dealing with.

[19] On 3 February 2020, Mr Perez Rivas rang Mr Wayne Southey, the Respondent’s Production Superintendent, and asked to speak to him about personal issues. They agreed to meet at Mr Perez Rivas’s house on 5 February 2020.

[20] When Mr Southey and Mr Perez Rivas met, Mr Perez Rivas told him his partner was separating from him and that he had been drinking heavily. Mr Southey said words to the effect that the company was there to support him. They spent about an hour talking.

[21] Mr Perez Rivas asked if the Respondent would support him going on extended leave to Mexico to clear his head and “find himself” again. Mr Southey said potentially he could go on leave to Mexico, because he considered this as an aspect of supporting Mr Perez Rivas’ mental health.

[22] Just as Mr Southey was about to leave, Mr Perez Rivas told him that there was something else, and he then told Mr Southey he had lost his driver’s licence because he had been driving under the influence of alcohol.

[23] Mr Southey was taken aback because they had just finished a lengthy conversation about his mental health and family issues and Mr Perez Rivas had only raised his driver’s licence loss at the last moment.

[24] Mr Southey told Mr Perez Rivas he would have to consult with HR to find out how to proceed from there.

[25] Mr Perez Rivas asked Mr Southey what he could do for the interim and told Mr Southey he did not know how long his suspension would be. Mr Southey says he thought that perhaps the suspension would be one or two months and asked Mr Perez Rivas if he could “do any admin?”. Mr Southey’s evidence was that Mr Perez Rivas laughed and said he was no good at that. They then discussed possibly confining Mr Perez Rivas to ship loading duties, but they both dismissed this possibility because it required him to drive a light vehicle on site to the ship loading facility.

[26] They also discussed Mr Perez Rivas seeing his doctor to obtain a medical certificate for time off work. Mr Perez Rivas agreed he would see his doctor.

[27] On 10 February 2020 Mr Perez Rivas forwarded a medical certificate to Mr Southey. The certificate was backdated and stated he was unfit to work from 26 January to 10 March.

[28] Mr Perez Rivas’ court hearing was on 6 March 2020. After the court hearing he spoke to Mr Southey on the phone and told him he had lost his licence for seven months, from 24 January until 24 August 2020. Mr Southey told him this was a serious matter and he would take advice and get back to him.

[29] The same day Mr Perez Rivas provided Mr Southey with the Notice of Conviction and provided a further medical certificate stating that he was unfit to work until 6 April 2020.

[30] The notice specifies the offence as exceeding 0.08 g alcohol per 100 ml of blood.

[31] Mr Southey had a number of phone conversations with Mr Perez Rivas and text message communications during March, April, and May.

[32] Mr Southey denies saying anything to Mr Perez Rivas guaranteeing that he would be able to come back to work, which I accept. He was concerned not to say anything that would distress Mr Perez Rivas given that he was on personal leave due to mental health issues.

[33] Around 6 April 2020 Mr Perez Rivas provided another medical certificate stating that he was unfit to work through to 6 May 2020.

[34] On 9 April 2020 Mr Perez Rivas emailed Mr Southey and amongst other things said that he was applying for an extraordinary driver’s licence and asking, if possible, he could have a letter from work confirming the circumstances and requirements of his employment and what happens to his job if he is not granted an extraordinary driver’s licence. He said he wanted to attach this to his extraordinary driver’s licence application.

[35] Mr Southey’s evidence is that the resident mine manager, Ms Emma Murray, is required to authorise any return to work with an “E Class” i.e. an extraordinary driver’s licence. Mr Southey had been consulting regularly with Ms Murray over Mr Perez Rivas’s case. He says Ms Murray’s decision was that she was not willing to allow Mr Perez Rivas to drive on site using an E class licence, nor was she willing to support an application to the court for an E class licence.

[36] Mr Southey’s evidence is that Ms Murray’s position has been consistent. Since she became the registered manager in January 2019 she has not approved any employee or any contractor to return to work on site within an E class licence.
[37] Consequently, on 14 April 2020, Mr Southey spoke to Mr Perez Rivas on the phone and told him that the Respondent would not be willing to issue him with a letter of support if he was applying to the court for an E class licence.

[38] In a later conversation the same day, Mr Southey says he also again explained to Mr Perez Rivas that they could not then have a discussion about his loss of licence, only when he was fit to return to work could they meet with him to deal with this issue.

[39] On 4 May 2020, Mr Perez Rivas provided a medical certificate in which the doctor stated he was fit to go back to full duties with no restrictions as from 2 May 2020, however, if he starts having any symptoms of mental health problems again he should be reviewed.

[40] The following day on 5 May 2020 Mr Southey rang Mr Perez Rivas and arranged a meeting with him.

[41] On 11 May 2020, Mr Southey met with Mr Perez Rivas. It was explained that; following his conviction and loss of drivers licence for seven months, and the fact that it was a condition of his employment that he hold a valid driver’s licence, this involved a breach of his contract of employment and consequently the Respondent was considering terminating his employment.

[42] A show cause letter dated 11 May 2020 was also given to Mr Perez Rivas.

[43] Mr Perez Rivas was told that he would have an opportunity to respond at a follow-up meeting on 12 May 2020. Mr Perez Rivas asked for additional time and the next show cause meeting was delayed until 14 May 2020.

[44] On 14 May 2020 Mr Southey met again was Mr Perez Rivas and his support person. Mr Perez Rivas had moments before the meeting started emailed a response to the show cause letter to Mr Southey. Mr Southey then stopped to read this and considered his letter which read as follows:

“To who it may concern:

Before I begin with this letter, I would like to thank in advance for the opportunity to have a say in the matter on the prospect of termination of my contract due of the suspension of my C class licence.

Totally way off my normal character and lack of consideration for others, I put myself in this terrible situation over selfish actions, which brought regretful shame to myself and kids

My personal life as you are aware (and it's not an excuse) of my separation of a long-time partner of 18 years and mother of my two kids, it's being a difficult journey for me, emotionally, mentally, and physically for the last 12 months, has obscure my judgement as never before, also causing me unnecessary stress and anxiety, making me vulnerable for irrational mistakes

This mistakes are putting my life as I knew on a new perspective, just knowing that I lost not just the license and the long-time partner, but potentially my job and kids.

While my job, which I love, gave me the reassurance to be able to provide to my family and more important the personal satisfaction for growth and new challenge, s my kids brings me happiness, joy and the company that I much need it at this difficult times! both are very important to me as part of my life!

I plead to you for forgiveness, compassion and understanding on your final decision on this matter, hoping to come to a mutual agreement less punishable than a termination!

Thanks for everything and all the opportunities that being given over the years

Yours Gabriel Perez R” [sic].

[45] During the meeting, Mr Perez Rivas’ support person suggested he could go on leave without pay and keep his job.

[46] The meeting concluded and Mr Perez Rivas was advised he would be told the outcome in due course.

[47] Mr Southey’s evidence was that after considering the matter he decided that Mr Perez Rivas should be terminated.

[48] His view was that the entirety of Mr Perez Rivas’ role required him to operate machinery and to hold a driver’s licence, under his contract of employment, the Enterprise Agreement and the Respondent’s policies.

[49] The site minimum safety requirement is for employees to have a C class licence. On a typical day there are approximately 50 people on site driving around. Vehicle collisions and rollovers are higher risks in the workplace and the Respondent mitigates this risk by requiring the minimum requirement of a current driver’s licence.

[50] He says he had considered whether they could just have Mr Perez Rivas only doing ship loading. However, he would need to drive long-distances around the site to do that. It was unreasonable to provide another driver to take Mr Perez Rivas to and from the ship loader which would have involved an hour of driving. Ship loaders also need to drive every two hours to perform inspections.

[51] This would have also involved additional costs for the business.

[52] Mr Perez Rivas was not able to do general administration duties as he advised in February.

[53] In terms of dismissal of employees in similar circumstances, Mr Southey initially believed there had been no employees of the Respondent dismissed in these circumstances before.

[54] The Respondent joined Rio Tinto’s Iron Ore Division in 2018. Prior to that it had been part of Rio Tinto’s Energy and Minerals Division.

[55] There had been a number of employment terminations in Rio Tinto’s Iron Ore Division in the past involving employees who have lost their licence for driving under the influence of alcohol. These terminations had involved licence suspension periods of significantly less than Mr Perez Rivas’, such as three months.

[56] In Mr Southey’s view not dismissing Mr Perez Rivas would have been inconsistent with these prior occasions of dismissal within the broader Rio Tinto Division.

[57] After Mr Perez Rivas’ termination Mr Southey became aware that there had in fact been such a dismissal of an employee by the Respondent in 2013 for loss of licence due to driving under the influence of alcohol.

[58] Mr Southey’s evidence was that he was made aware of previous cases at the Respondent and at Rio Tinto Iron Ore involving drink driving where employees had been warned rather than being terminated. His evidence was however he had no details about the employees involved and the circumstances and is not aware of any such case since he became employed by the Respondent in 2017.

[59] Mr Southey’s evidence was that those were the main issues he considered. However, he was also aware that Mr Perez Rivas’ past safety performance had been poor. He had seven prior instances dating back to 2015 some involving damage to items of equipment.

[60] These instances had each involved a discussion which had been recorded on his file.

[61] This information had also been provided to Ms Murray and the General Manager, Mr Brodie Hall, who had supported his decision to dismiss Mr Perez Rivas.

[62] Mr Southey’s evidence was that whilst he did not rely on this past record of incidents as a reason to dismiss Mr Perez Rivas 1, it showed there was no reason to give Mr Perez Rivas special treatment, such as imposing a lesser sanction than was warranted for losing his driver’s licence for seven months because of drink-driving.2

[63] On 19 May 2020 Mr Southey again met with Mr Perez Rivas and advised him that the Respondent was proceeding to terminate his employment. Mr Perez Rivas then asked if he could resign. He was told that that was an option if he would prefer it. Mr Perez Rivas asked for 24-hours to consider that option. Mr Southey told him to go away and think about whether he wanted to be terminated or to resign.

[64] Mr Southey expressly told Mr Perez Rivas that these meetings and discussions were confidential, and he should only speak to his support person about them.
[65] On 20 May 2020 a number of the Respondents staff spoke to Mr Southey about Mr Perez Rivas’ termination and it became apparent that Mr Perez Rivas had told people that he was being terminated, even though this had not been finalised, and he had asked to be given the option of resigning if he wanted to.

[66] Mr Southey eventually spoke to Mr Perez Rivas who admitted that he had told other employees his situation. Mr Southey told him that he had breached confidentiality and he was not supposed to talk to anyone outside the meeting apart from his support person.

[67] Mr Southey then told him that the Respondent would now proceed with the termination and read out his termination letter to him in the meeting.

[68] The termination letter provided to Mr Perez Rivas read as follows.

“20 May 2020

Dear Gabriel,

Termination of Employment

This letter confirms the termination of your employment effective 20 May 2020.

On on 6 February 2020 you advised me that your driver's licence had been suspended for seven (7) months due to driving with a Blood Alcohol Content in excess of the legal limit. You provided documentation confirming the suspension.

We have reviewed the documentation provided and have established:

•  You received a Notice of Conviction dated 6 March 2020 confirming your licence had been disqualified for a period of seven (7) months from 24 January 2020;

•  It is a condition of your contract of employment that you hold a valid 'C' class driver's licence as driving is an inherent requirement of your role; and

•  The loss of your licence has resulted in a breach of your contract of employment.

The Company gave you the opportunity to respond to our concerns, our intention to terminate your employment and at each stage in the process afforded you the right to have a support person present.

After careful consideration of your response and the information presented on 14 May 2020, the Company has decided to proceed with your termination of employment effective today, 20 May 2020.

Any outstanding entitlements owing to you will be paid to your designated bank account. This will include five (5) weeks' pay in lieu of notice and Annual or Long Service Leave entitlements. The Company reserves the right to withhold part or all of your entitlements in the event that you have any outstanding debts with the Company.

For future correspondence relating to pay queries and change of forwarding address, please email [email protected] or telephone [phone].

We understand this is a difficult time for you and your family, and remind you of our free and confidential counselling services through our employee assistance provider BSS, who can be contacted on 1800 30 30 90. The use of the EAP will be extended to you for a period of three (3) months post-employment.

Yours sincerely

Wayne Southey Superintendent Production Dampier Operations Dampier Salt Limited” [sic].

[69] The Applicant’s evidence is that there are a number of employees of the Respondent who have had their driver’s licences suspended but they have not been terminated.

[70] The Applicant at no time initiated a dispute under clause 19. Issue Resolution Procedure of the Enterprise Agreement.

Submissions

Applicant

[71] The Applicant submits that the Respondent’s refusal to provide a supporting letter as his employer to assist him making an application to the court for an extraordinary driver’s licence was harsh and did not afford him a fair go all round.

[72] The Applicant submits that the suspension of his licence or the grant of an extraordinary drivers’ licence does not depend upon the Applicant’s skill as a driver. It is submitted that it is hard to fathom the logic of Ms Murray and Mr Southey that drivers with an extraordinary drivers licence were not authorised to drive on site because they did not meet the Respondent’s requirements of holding a C class licence.

[73] It is submitted that it would seem the Respondent’s decision not to provide a supporting letter when requested was taken to prevent the Applicant from obtaining an extraordinary drivers licence.

[74] The Applicant also submits that the use of prior incidents during the Applicant’s employment was unreasonably used to bolster the supposed valid reason for his dismissal.

[75] None of the previous matters that were safety matters were put before the Applicant during the disciplinary process.

[76] The evidence is that these incidents were a material consideration in the decision-making process even if they are not relied upon in the final dismissal letter.

[77] The Applicant remains of the view that other employees in similar circumstances have not been dismissed. The Applicant submits that the Respondent’s position on this is equivocal. It is submitted that the evidence of the previous history supports the Applicant’s contention on this point.

[78] The Applicant submits that there is no rational basis for the Respondent to advance the loss of trust and confidence argument, there must be a sound reason for such a conclusion.

[79] There is no reason why the Respondent could have concluded this to be the case.

[80] There was no valid reason for the Applicant’s dismissal.

[81] The Commission ought to also have regard for the overall circumstances the Applicant was experiencing. He had suffered a matrimonial breakdown which had impacted his mental health.

[82] In all the circumstances, the Commission should make a finding that the Applicant was unfairly dismissed.

Respondent

[83] There is no dispute that on Friday, 24 January 2020 Mr Perez Rivas was breath tested by the police whilst driving in Karratha and returned a blood-alcohol test reading of 0.092.

[84] He was subsequently convicted and disqualified from holding or obtaining a driver’s licence for seven months.

[85] Mr Perez Rivas’ employment as a production operator required him to operate both heavy vehicles and light vehicles. Driving these vehicles was the entirety of his duties.

[86] The Respondent considered suitable alternative duties for Mr Perez Rivas, but the evidence is that there were none available.

[87] There were no reasonable adjustments the Respondent could make that would allow Mr Perez Rivas to continue to be employed. Allocating a separate employee to act as his driver on-site to for example drive him to and from the port so he could operate the ship loader was unreasonable.

[88] The Respondent required Mr Perez Rivas, as specified in his contract of employment, the Enterprise Agreement and its policies, to hold a valid driver’s licence.

[89] Mr Perez Rivas was notified of the reason the employer was considering dismissing him via a show cause letter and meeting.

[90] He was given, and took, the opportunity to respond to that before the decision to dismiss him was made.

[91] The Applicant did not put forward any sound objective reason why the Respondent should not dismiss him.

[92] The Respondent was entitled to rely upon the requirements it imposed on Mr Perez Rivas in terms of him holding a valid licence.

[93] It is a matter for the Respondent to establish policies for the operation of the vehicles on its mine site. The Respondent has the discretion to decide what the requirements will be for employees to drive vehicles on sites.

[94] The Respondent submits that the fact the Respondent would not provide a letter in support of Mr Perez Rivas’ application to the court for an extraordinary licence did not prevent him from making such an application.

[95] Nor even if it had provided such a letter, would that ensure that he was granted an extra ordinary licence.

[96] The Respondent’s position was consistent that allowing Mr Perez Rivas to drive heavy and light vehicles on-site with an extraordinary licence was not consistent with his contract, the Enterprise Agreement or the Respondent’s policy.

[97] The Respondent submits that Mr Perez Rivas’ employment record was chequered.

[98] He was involved in no less than seven incidents involving safety breaches and or equipment damage stop.

[99] Whilst these were not subject to final written warnings, they were the subject of file notes which are a less formal warning under the Respondent’s disciplinary processes.

[100] From the Respondent’s perspective these incidents demonstrate a lax approach to safety issues and a disregard of the Respondent’s earlier warnings. Notably Mr Perez Rivas did not disclose to his employer the fact that he had been immediately disqualified from driving on 24 January 2020 until 5 February 2020, some 12 days after the incident, and only as an apparent afterthought at the end of an hour-long discussion with Mr Southey.

[101] These historical incidents are not relied upon as valid reasons for dismissal but are part of the factual context in which Mr Perez Rivas’ loss of drivers licence is to be considered.

[102] The Applicant, in his evidence, at the hearing had the opportunity to respond to each of those incidents.

[103] The Respondent submits these past incidents weighed against the Respondent exercising some additional level of leniency which it might conceivably have extended to an employee with an exemplary record.

[104] The Respondent also submits the Commission should have regard for Mr Perez Rivas’ confidentiality breaches in choosing to discuss the substance of the disciplinary meetings with other employees after those meetings, notwithstanding he had been expressly told that those discussions were confidential.

[105] This confidentiality breach further demonstrates the fact that Mr Perez Rivas was unwilling to comply with his employer’s reasonable expectations and weighs against the Respondent exercising some additional level of leniency and it reinforces its position that it had lost trust and confidence in him as entirely reasonable.

[106] With respect to the Applicant’s submission that he was subjected to differential treatment compared to other employees the Respondent submits that he has not provided any specific case examples with sufficient information that would allow the Commission to ensure it was comparing “apples with apples”. The Respondent’s evidence demonstrates he was not treated unfairly compared to others.

[107] Mr Perez Rivas was dismissed with five weeks pay in lieu of notice. His dismissal was not unfair and the application should be dismissed.

The legislation

[108] Section 387 of the Fair Work Act 2009 (Cth) states the following:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Consideration

[109] The Respondent operates in an industry that is inherently dangerous. Mr Perez Rivas worked on a large mine site operating heavy machinery or driving light vehicles in and around where heavy machinery was being operated by other employees.

[110] The Respondent is obliged by legislation to establish processes to identify hazards and mitigate the risk of death or injury on its site.

[111] As part of this the Respondent’s minimum requirements for employees to operate any vehicle on site is that they hold a current driver’s licence. This minimum requirement is a safety precaution because the Respondent does not want staff on site operating vehicles who have not been able to maintain their driver’s licence. 3

[112] There are approximately 50 people on site normally and vehicle collisions, rollovers, and vehicle impacts on persons are two of the higher risks in the workplace. The Respondent mitigates these risks by the minimum licence requirement.

[113] This requirement for Mr Perez Rivas in particular to hold a current drivers licence, and that ceasing to hold a licence will result in his continued employment being reviewed, is included as a clause of his contract of employment.

[114] The Respondent views this issue as of sufficient importance that it is also expressly mentioned in the Enterprise Agreement that applies to Mr Perez Rivas’ employment. Further, the Respondent reinforces this again with more detail about these licence requirements in its Vehicle and Driving Procedure policy.

[115] Mr Perez Rivas has also undertaken training on which he was successfully tested which deals expressly with this requirement.

[116] Mr Perez Rivas was also required to complete an annual declaration providing a copy of his current driver’s licence.

[117] Unfortunately, Mr Perez Rivas lost his driver’s licence for seven months because he had driven with a blood alcohol level of 0.092.

[118] Mr Perez Rivas says that at the time he was stopped by police he had been drinking heavily because of a recent relationship breakdown. Whilst that may explain Mr Perez Rivas’ high blood alcohol level that does not explain and certainly does not excuse him for also choosing to then drive his vehicle putting himself and the general public at risk.

Valid reason

[119] Mr Perez Rivas lost his driver’s licence for a period of seven months. Consequently, he was not able to meet the minimum requirement the Respondent sets to operate heavy vehicles or light vehicles on its mine site.

[120] Mr Perez Rivas’ job is to operate heavy vehicles or light vehicles or the ship loader. Having lost his driver’s licence he was no longer able to do his job.

[121] This was a valid reason for his dismissal.

Notification of the reason for his dismissal

[122] Mr Perez Rivas was notified of the reason the Respondent was considering dismissing him in a show cause letter and in a meeting.

Opportunity to respond to the reason for his dismissal

[123] Mr Perez Rivas was given an opportunity to respond to the reason for which he was dismissed before the final decision was made. Mr Perez Rivas provided a written response and participated in a final meeting.

Support person refusal

[124] The Respondent did not at any time unreasonably refuse to allow Mr Perez Rivas to have a support person present during the discussions regarding his dismissal.

Warnings

[125] Mr Perez Rivas’ dismissal was not related to unsatisfactory performance and so warnings are not relevant in this instance.

The size of the enterprise and the presence of Human Resource Management specialists or expertise

[126] The employer is a large enterprise which does have human resource management specialists which is reflected in the procedure that was used to affect the dismissal.

Other matters

[127] Mr Perez Rivas had been employed for approximately nine years.

[128] At the time of his drink driving offence Mr Perez Rivas was undergoing a relationship breakdown which for a period apparently negatively affected his mental health. These were matters the Respondent did have regard for in dealing with Mr Perez Rivas’ situation. Immediately after the driving offence he was absent on a period of personal leave and so the employer then waited until he was fit to return to work before dealing with the consequences of his loss of licence on his employment.

[129] This is not a case where Mr Perez Rivas’ personal circumstances make the dismissal unfair.

[130] For Mr Perez Rivas it is submitted that it was unfair for the Respondent to not provide a letter in support, as he requested, when he was considering applying to court for an extraordinary driver’s licence. In my view, this is an unreasonable complaint. An employer may choose to actively support such an employee with a letter to the court, or as the Respondent did in this case, do nothing when an employee asks for this assistance. Some employers may even be strongly opposed to supporting an employee who has lost their drivers licence for drink driving.

[131] There is no obligation on an employer to provide such letters to an employee who has lost their driver’s licence. That decision should be, and is, at the discretion of each employer.

[132] Mr Perez Rivas’ predicament was of his own making and he should have no expectation that the Respondent would actively support his extraordinary driver’s licence application.

[133] The employer considered whether there were alternative duties suitable for Mr Perez Rivas but there were not. The employer considered whether adjustments could be made to their operations as an alternative but those that would have been required, such as providing Mr Perez Rivas with another employee to drive him around the site as necessary, were unreasonable.

[134] Mr Perez Rivas’s employment record was not unblemished. He was involved in a number of prior incidents some involving safety breaches and or equipment damage. Each of these was discussed with him at the time they respectively occurred, and the incidents were recorded as a note in his file.

[135] These historical incidents were not relied upon as reasons for his dismissal. The employer did however take them into account when considering the appropriate disciplinary action they should take in this instance. The employer quite reasonably considered these incidents lent weight to a conclusion that Mr Perez Riva’s should be dismissed rather than treated more leniently.

[136] Separately Mr Perez Rivas argues that other employees in a similar position to himself, who have lost their driver’s licence, were not dismissed and so he has been treated unfairly by comparison.

[137] Mr Perez Rivas however has not provided evidence with any detail that supports this argument. The Commission cannot agree with such a submission without there being evidence that allows a proper comparison to be made between Mr Perez Rivas’ circumstances and the circumstances of any other employee in the past who was not dismissed.

[138] Considering all of the matters above, my decision is that Mr Perez Rivas’ dismissal was not harsh, unjust, or unreasonable. Mr Perez Rivas was not unfairly dismissed.

[139] An order to that effect will be issued in conjunction with this decision.

Appearances:

P Mullally of WorkClaims Australia for the Applicant.

E Moran of Mills Oakley for the Respondent.

A Pollock of Counsel for the Respondent.

Hearing details:

2020.

Perth:

August 31.

Final written submissions:

Applicant, 21 September 2020.

Respondent, 23 September 2020.

Printed by authority of the Commonwealth Government Printer

<PR724765>

 1   Transcript at PN 313 – 318.

 2   Witness statement of Mr Southey at paragraph 62.

 3   Ibid., paragraph 54.