Garside v Hazelton Air Services Pty Ltd

DECISION NO:119/97

CATCHWORDS

INDUSTRIAL LAW - UNLAWFUL TERMINATION - Valid Reason- CONDUCT AND PERFORMANCE - REINSTATEMENT - Alcohol and public safety - No Opportunity to respond to allegations about conduct until official investigation complete
LEGAL REPRESENTATION - desirability to separate representation of two dismissed employees where possible conflict of interest.
IMPRACTICABLE - Not impracticable to reinstate if applicant agrees to attend Alcohol and Drug Counselling Program and to monitoring of alcohol intake by breath test or blood or urine sample.
COMPENSATION to be paid from date of completion of Investigations.

WORKPLACE RELATIONS ACT 1996 ss 170DE, 170DC and 170EE, ss 380 and 480.
CIVIL AVIATION ORDER 48, Civil Aviation Act 1988, s 20A and CIVIL AVIATION REGULATION 256(2)
PILOTS SUPPLEMENTARY AWARD 1988, ss 19(a), 36 and 55
JUSTICES ACT 1902 (NSW) ss 48A and 48H
TRAFFIC ACT 1909 (NSW) s 2, s 4IB (e), (f) and (g), s 4E(ID)
DANGEROUS GOODS ACT 1975 (NSW)
RADIATION CONTROL ACT 1990 (NSW)
RAIL SAFETY ACT 1993 (NSW) s 61 and Sch 2

Alidair Ltd v Taylor (1978) ICR 445
R v Bulejcik, 135 ALR 517
Dominican v R (1992) 173 CLR 555
Davies and Cody v R (1937) 57 CLR 170
Briginshaw v Briginshaw (1930) 60 CLR 335
Selvachandran v Peteron Plastics Pty Ltd (1995-6) 62 IR 371
Liddell v Lembke 1 IRCR 466
Victoria & Ors v The Commonwealth (1996) 66 IR 392
The Awu-Fime Amalgamated Union v Queensland Alumina Limited (Unreported IRCA Moore J, 14 July 1995, Brisbane)
Nettlefold v Kym SmokerPty Ltd (Unreported, IRCA, Lee J., 4 October 1996) Kerr v Jaroma Pty Ltd (Unreported, IRCA, Marshall J, 7 October 1996)
Perrin v Des Taylor Pty Limited (1994) 58 IR 254

GARSIDE -v- HAZELTON AIR SERVICES PTY LTD
NI 3852 of 1995

Before:  MCILWAINE JR
Place:  SYDNEY
Date/s of hearing:     7,9 FEB, 19-21 MAR, 10 MAY, 7 & 20 JUN 1996
Date of judgment:     9 APRIL 1997

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3852 of 1995

BETWEEN:

Donald Stuart GARSIDE
Applicant

AND

HAZELTON AIR SERVICES PTY LTD
Respondent

BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997

DRAFT MINUTES OF ORDERS

THE COURT FINDS THAT:

The respondent did not have a valid reason for the termination of the applicant.

The respondent contravened Section 170DC of the Act.

Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised educational and counselling program on Alcohol and Drug addiction nominated by his Chief Pilot, it is not impractical to reinstate the applicant to the positions of “Captain-Pilot” and “Type Specialist SAAB 340” in which he was employed before his termination.

The respondent to re-instate the applicant to the position in which he was employed immediately before the termination being that of “Captain- Pilot” and “Type Specialist SAAB 340”.

The respondent to reinstate the applicant in those positions on the same terms and conditions as applied to the applicant at the date of termination and that such period commence from the date of termination.

The period between the date of termination and the date of this decision be treated as continuous employment of the applicant by the respondent for all purposes.

The respondent to pay to the applicant the remuneration lost by the employee because of the termination from 13 October 1995 to 9 April 1997 within twenty one days of the date of receiving the signed agreement from the applicant.

The applicant has a period of Seven days to produce evidence to the court of the concurrence of the Civil Aviation Safety Authority to his re- instatement as Check and Training Captain.

In the event that the parties are unable to agree on the amount to be paid or other proposed orders by 4 pm on 16 April 1997, they have liberty to apply to the court to relist the matter.

In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with the indication which I have given in this judgment. Those orders should be filed with the court by 4.00 pm 18 April 1997. It will be preferable if they can be agreed with counsel for the respondent, if they cannot be agreed then I shall provide a time commencing in the week beginning 21 April 1997 to hear the matter and finalise the orders in this matter.

Upon completion of the orders I propose to refer this judgment to the relevant authorities for consideration of the recommendations which have been made regarding the need for further legislation.

The applicant is to provide the respondent with details of his income from paid employment and expenditure on maintaining his licence to fly within 7 days to enable the calculation of “lost remuneration”.

Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY

NI 3852 of 1995

BETWEEN:

Donald Stuart GARSIDE
Applicant

AND

HAZELTON AIR SERVICES PTY LTD
Respondent

BEFORE:     MCILWAINE
PLACE:        SYDNEY
DATE:           9 APRIL 1997

REASONS FOR DECISION

This is an application by Captain Donald Stuart Garside claiming unlawful termination of his employment under Division 3 Part VIA of the Industrial Relations Act 1988 ("the Act") against his former employer, Hazelton Air Services Pty Limited. On 26 November 1996 the Act was renamed the Workplace Relations Act 1996.

In his claim, the applicant records the work performed for his employer as "Captain (pilot) - based at Sydney". The applicant started work with the respondent on 4 December 1986 and the last day he worked was 8 September 1995. He was terminated from his employment by his employer on 15 September 1995. His period of employment was just under 10 years.

The application was filed on 28 September 1995, in the registry of the Court and therefore no question arises as to the claim being out of time.

The remedy sought by the applicant in his claim is reinstatement in his employment. The applicant is now 34 years of age. He describes himself as “5 foot 11 inches tall, of solid build with red hair, weight 86 kilograms”.

The respondent, Hazelton Air Services Pty Limited, (“Hazleton”) is a major regional airline company servicing New South Wales and other parts of Australia, I mention that members of the Court, including myself, frequently travel on the planes of the respondent in order to conduct hearings at country centres in New South Wales.

I have a certificate issued by Deputy President Drake of the Australian Industrial Relations Commission dated 23 November 1995, in the following form:

"In accordance with subsection 170ED(2) of the Industrial Relations Act 1988, the commission hereby certifies that it has been unable to settle this matter by conciliation."

There was no objection to the certificate made by either party, I therefore find the matter is properly before me.

The application was accompanied by a letter dated 15 September 1995:

"HAZELTON
THE BIG COUNTRY AIRLINE
15 September 1995
PRIVATE & CONFIDENTIAL
Captain Don Garside
(HOME ADDRESS)
Dear Don,
Re: Conduct in Albury on 4 / 5th August 1995
I confirm that the Company has determined that, as a result of your conduct during the morning of the 5th august, and your consequent operation of the Company's aircraft while being unfit to do so, that your services are to be summarily terminated.
In particular your contravention of Section 1.2, 2.16. 2.17, 3.2 and 3.7 of Part A of the Hazelton Airlines Operations Manual and probable contravention of CAO 48, Civil Aviation Act 1988 Section 20A and CAR 256(2), are causes for this termination.
Termination will be in accordance with or recognise the provisions of Sections 19(a), 36 and 55 of the pilots Supplementary Award 1988. All appropriate payments will be deposited to your account.
Yours Sincerely,
(signed)
ALAN TERRELL
Operations Manager"

It is immediately apparent from the letter that the company relied on two specific reasons for its decision. That is, the contravention of rules and policy set out in the Hazelton Airlines Operations Manual and a probable contravention of a number of regulations under the Civil Aviation Act (1988). The attention of the applicant was drawn to the provisions of the sections 19A, 36 and 55 of the Pilots Supplementary Award 1988, which sets out a dispute settling procedure.

HEARING

This matter which is registered number NI 3852 of 1995 in the court records was heard in conjunction with the trial involving Brett McGeehan (NI 3851 of 1995) and the respondent. Both applicants were represented by Mr Michael Sweeney Senior Counsel, and the respondent by Mr Robert Goot of counsel.

The case first came before the Court on 14 December 1995 in a directions hearing conducted by phone, where an application was made for expedition of the hearing date. This was an oral application and it was granted by the Judicial Registrar. Although the application contains the following claim "Damages arising from the breach of contract", the court was then advised that a such claim would not be made in the accrued jurisdiction.

On 16 & 22 January 1996, there were interlocutory proceedings involving the Return of Subpoenas. The trial was set down for hearing on 7 & 8 February 1996.

On 2 February 1996 a Notice of Motion to vacate this hearing date was heard before a different Judicial Registrar. It appears that in this interlocutory application, reliance was placed on the affidavit filed by First Officer McGeehan in his case. First Officer McGeehan deposed that there was a dispute at Board Level and claimed that a change in the Directors of the Company would result in his reinstatement. There does not appear to be a similar claim made by Captain Garside with respect to his reinstatement. This aspect of the case is dealt with in my Reasons for Decision regarding First Officer McGeehan. In any event, the Notice of Motion to vacate the hearing date was dismissed.

The matter came on for hearing before me on 7 February 1996, when it was stood down to 2:15 pm to allow the applicant access to documents which had been subpoenaed and were still to be produced by the respondent. Apparently there was some delay in arranging for those documents to be flown to Sydney. At 2:15 pm the applicant sought a further adjournment, which was not opposed by the respondent in order to properly inspect the documents, some of which were then available as well as those which were still to arrive at the Court.

The hearing then commenced on Thursday 8 February 1996 & continued on 9 February 1996. Thereafter it was stood over to the first available dates which could accommodate the Court and existing commitments of counsel. A further three days of hearing occurred on 19, 20 and 21 March 1996. Again the matter was stood over to 10 May 1996 and then on to 7 June 1996. An earlier date which became available was not able to be utilised by counsel for the parties. On 7 June 1996, in accordance with a request by both counsel, I directed that there be written submissions together with oral argument in support which was heard on 20 June 1996. The hearing concluded on 20 June 1996 when the decision was reserved.

On 4 September 1996, the High Court in The State of Victoria -v- The Commonwealth of Australia (1996) 66 IR 392 declared Section 170 DE(2) and 170EDA(b) invalid. I offered the parties, through their counsel, an opportunity of further submissions. I was advised that the parties did not wish to make use of this offer.

At the outset, I wish to make it clear, nothing I say in this judgment should be taken to mean that I hold any view of the conduct of the applicant on the evening of Friday 4 August 1995 and Saturday 5 August 1995 which can in any way be seen as condoning, supporting, approving or encouraging his behaviour as admitted by him in his evidence to the court. I am of the opinion that based on his own admissions, he failed to give the leadership expected and required from an “Air Commander” participating in a social occasion with fellow crew members.

BACKGROUND

There are some issues of fact in this matter which both parties do not dispute and I propose to outline those matters first.

The applicant is a pilot who was qualified to fly the planes of the respondent as a Captain or commander of the plane. In addition to that duty, he also held the position of “Type Specialist SAAB 340” and "Check and Training Captain" for “Hazelton”. This latter position was one which is apparently recognised by regulations under the Civil Aviation act and regulations. He explained this position as follows: “I was employed as a Captain, I had a significant role in the Training of pilots with “Hazelton”.”

The respondent operated regular commuter passenger services between Sydney and Albury. On Friday 4 August 1995 the applicant sat in the observers seat of the plane which was flown to Albury under the command of Captain Larsen. He conducted a “Night Route” observation of Captain Larsen in his role as Check and Training Captain. Before they left Sydney, Captain Larsen had reported trouble with the Altimeter. The plane was delayed and it landed at 8.15 pm. There was to be a later flight into Albury that evening. A prior arrangement was made between the two flight crews to meet up that night for a social outing.

In accordance with the usual industry practice, all the flight crew were accommodated in the same motel premises, being the Greentree Motor Inn. All three members of the crew of the early flight checked into their rooms.

After a short delay, the three male members of the aircrew, being the applicant, First Officer McGeehan & Flight Attendant Kinnell, who also was a passenger on the first plane left the motel and walked to two hotels in Albury where alcoholic beverages were consumed by all three men to varying degrees. It is necessary for me to make a specific finding about the number of drinks consumed by the applicants and their flight attendant. I will return to this issue later. Flight Attendant Kinnell left the two applicants to go back to the motel. However, he got lost and by chance meet the crew from the later flight, which had landed at Albury at 11.30 pm. He then joined them to continue the social outing rather than going back to the motel and his bed as had been his original intention. This meeting occurred at about 12.15 am on Saturday 5 August 1995 and Flight Attendant Kinnell stayed with them until at least 1.30 am.

Evidence was given that, with the exception of Flight Attendant Kinnell, the two crews completed the evenings entertainment at a night club where the usual social intercourse, including dancing and other behaviour consistent with being present in a disco, and off duty, continued into the early hours of Saturday morning. Viewed in isolation, there is nothing wrong with this conduct however, the respondent alleges that certain regulations and company policies were breached by the Captain and First Officer who were to pilot a plane which was scheduled to leave Albury at 7.20 am on Saturday 5 August 1995 for Sydney and Sale. In any event the plane was late leaving Albury in the morning, again an incident which will require a more detailed examination of the facts. It left Albury at 7.40 am.

REPORT OF INCIDENT

Apparently, this event went unreported to the respondent until some time shortly before 8 September 1995. There is no evidence as to the time when and under what circumstances the respondent became aware of the incident such information may have been of assistance to the court.

The applicant first became aware that action was being taken about this incident, when he was summoned together with First Officer McGeehan to the head office of the air service in Cudal, near Orange. There they were subjected to an interview about the events on the Friday evening, 4 August 1995 and on the following morning, Saturday 5 August 1995. The applicant was suspended from duty on full pay while an investigation was conducted. Subsequently, he was terminated from his employment on 15 September 1995.

Having broadly outlined the case, I now turned to give a more detailed analysis of the role played by each of the applicants. Although the arrival of the plane and its departure can be fixed in a number of external ways, this was not necessary as the time of arrival the previous evening and the time when the plane left is not in dispute between the parties. It is what happened between these two times that requires the attention of the Court.

CAPTAIN GARSIDE

Captain Garside testified that he was out of bed at 11.30 am on Friday 4 August 1995 When he got out of bed, he drank two cups of coffee and ate two pieces of toast for breakfast. He maintains he signed on for duty at 5.30 pm for the 6.30 pm scheduled departure of the flight to Albury. Around this time, he consumed a substantial 3 course hot meal with an Orange Juice in the Ansett Cafeteria.

Captain Garside's role on the flight to Albury was to conduct a night route observation of Captain Peter Larsen . This is required under the Civil Aviation Act or Regulations

Ian Waldron was the first officer on plane, Captain Garside occupied the observers seat in the crew compartment and First Officer McGeehan was a passenger on the flight. Also in the plane were Flight Attendants John Kinnell and Meredith Payne. There were up to 36 passengers on the flight.

The plane landed at Albury shortly after 8.00 and the crew signed off duty at 8.30 at the Greentree Motor Inn.

Captain Garside admits that he was in the last room on the right on the second floor. I am satisfied that this was Room 214. Captain Garside changed into casual clothes, met First Officer McGeehan and Flight Attendant Kinnell in the foyer of the motel and then all three left to go to Soden’s Hotel.

The Shout:
"(shout v 1.a. to stand (the company) a round of drinks”.: Aussie Talk: - Macquarie Dictionary of Australian Colloquialisms)
Between 8.45 pm and 9.00 pm the three men arrived at Soden’s Hotel on the corner of David and Wilson Streets Albury. Flight Attendant Kinnell bought the first round of three (3) schooners of full strength beer (15ml per glass). Captain Garside bought the second round. First Officer McGeehan bought the third round. The time taken to consume these drinks was 45 minutes.

At 9.30 pm all three went to the Terminus Hotel on the corner of Dean Street and Young streets Albury, which took from 10-15 minutes to walk there. Although I have allowed for 15 minutes, I suspect that it was closer to 10 minutes.

Again, Flight Attendant Kinnell started the shout and bought the first round of drinks, Captain Garside bought the next round. Three, (3) schooners (15ml per glass) of full strength beer were consumed in each shout. The next shout was First Officer McGeehan and he bought "1 schooner of full strength beer for Captain Garside and an orange drink for Flight Attendant Kinnell." He broke the shout by not buying a drink for himself.

The following summarises the alcohol consumed in the shout:

Garside McGeehan Kinnell Shout Time

Soden’s 1 Schooner 1 Schooner 1 Schooner Kinnell 8.45

1 Schooner 1 Schooner 1 Schooner Garside commenced

1 Schooner 1 Schooner` 1 Schooner McGeehan

Terminus 1 Schooner 1 Schooner 1 Schooner Kinnell 9.45

1 Schooner 1 Schooner 1 Schooner Garside commenced

1 Schooner no drink orange juice McGeehan

Between 8.45 pm and 9.45 pm, each of the officers had consumed, during the hour, the equivalent of 4.5 standard drinks. That is 1.5 standard drinks in excess of the "Rule of Thumb" limitation widely publicised as a guide to drivers of motor vehicles of the number of standard drinks which can be consumed in the first hour without exceeding the prescribed concentration of alcohol in the blood. Thereafter only one standard drink per hour may be consumed in order to stay under the legal limit of 0.05 Grammes of alcohol per 100 Ml. During the next hour, 9.45 pm to 10.45 pm, two of the three men topped up their "blood alcohol level" by the equivalent of 3 standard drinks. That is two more than are suggested in the "Rule of Thumb" if they were to be able to drive a motor vehicle without apparent risk of committing a Road Traffic Offence. While Captain Garside topped up his blood alcohol level by the equivalent of 4.5 standard drinks.

There is no evidence as to whether the rate of drinking slowed after the arrival at the Terminus. There is evidence that is favourable to First Officer McGeehan as he broke the shout and as well "sat" on his last drink at the Terminus hotel. In addition I infer from the evidence that it was the first time he had been out drinking with Captain Garside. This was not the case with Flight Attendant Kinnell. The applicant and First Officer McGeehan, after finishing their drinks, and leaving the Terminus Hotel met Flight Attendant Kinnell in the street on their way to Dimitri’s Night Club located in the hotel known as the New Albury Hotel. He did not join them and they continued on to Dimitri’s. On First Officer McGeehan's evidence, they arrived at 11.10 pm and he stayed with Captain Garside at Dimitri’s for up to an hour. They were talking and dancing with some females. There is no specific evidence that alcohol was consumed by them during this period ,Captain Garside denies consuming any more alcohol during this period. First Officer McGeehan returned to the motel at 1.30 pm. He did not see any other members of the second flight crew and according to Captain Garside left Dimitri’s without advising him.

Captain Garside testified that he returned to the motel at 3.00 am, that he had his key with him and did not speak with the Night Manager. He walked through the electronically operated sliding doors which were not locked. The first thing that Captain Garside recalls after sleeping was at approximately 6.50 am,

“A gentleman knocking on my door, saying or words to the effect ,your taxi is here. After I woke up I’d realised I’d slept in and I quickly just put on my clothes ,grabbed my bags and raced down to the reception area where the taxi was waiting.”

He met First Officer McGeehan in the foyer and they went in the taxi together to the airport.

When he left the motel he had his uniform on, except for his tie, which was loose around his neck. His cap was on, as was his coat, although it was not buttoned up.
When he left the taxi at the airport, his tie was done up.

They arrived at the airport at 7.10 am to find that the prop ties had been taken off the aircraft engine, the unlet bungs were out and the pivot covers removed . Captain Garside testified that he delegated to First Officer McGeehan the task of carrying out the external checks of the aircraft and he did the internal checks. This is consistent with the evidence of First Officer McGeehan.

When asked in cross examination about the rate of drinking, he agreed that he was not a heavy drinker, although it was more than he would normally consume, but he wouldn’t consider it to be excessive. He agreed that the amount of alcohol that he consumed would be well over the limit for driving a motor vehicle.
An informative exchange occurred under cross examination as follows:
“Did it ever occur to you that you might still be over the legal limit at 7.20 am the next morning?”
“No, it did not.”
“You did not give it a moments thought?”
“No, because I wasn’t.”
“Well, how do you know you were not?”
“Well, I know my own symptoms when I’m ...- in relation to alcohol consumption limit in the car.”

The Applicant denied specifically under cross-examination that his capacity to fly was affected by alcohol. He denies being drunk at Dimitri’s. He could not recall the name of the female with whom he was dancing.

He suggests that he had been surviving on four hours sleep for some time as a result of his performing the duties of Check and Training Captain. His explanation was that he was socialising:

“I was off Duty, I was - I wasn’t in bed but I was still fit to fly that aircraft the next morning.”

The minimum rest period is nine hours. He had a hot dog on his way back to the motel. He agrees that he organised a wake-up call for 5.45 am. He agrees that he was anticipating that he would only have two and three-quarters hours sleep. He maintains that it is enough for him personally. He was not aware on that morning that McGeehan had been physically ill. The failure to report the late departure time was an irregularity only.

At the end of the flying activities for the day, the applicant maintained that he held a meeting with the former Chief Pilot, Captain Peter Hazelton, for about 45 minutes to an hour. Captain Peter Hazelton had an Instrument Rating Renewal due. Captain Garside was not cross-examined on this issue.

CAPTAIN MALCOLM NEWMAN

In support of their case the Applicants called Malcolm Sandys Campbell Newman who has been employed by Hazelton Airlines as an airline pilot since June 1988. On Friday night, 4 August 1995 Captain Newman flew a Hazelton plane from Sydney to Albury which landed at 11.20 pm. The other flight crew members on that plane were the First Officer Ian Waldron and Meredith Payne was the Flight Attendant.

After securing the aircraft, the crew took a taxi to the Greentree Inn Motel. There seems to be no factual dispute that it takes between 5 and 10 minutes to travel from the airport to the motel. Captain Newman estimated they arrived at the motel: “round about 11.45 pm” According to Captain Newman the crew signed in the duty time book for the company.

The book,(or sheet), records when the crew actually signed off duty and the flight times and duty times completed for the day. It appears that the last crew to arrive is responsible for faxing the document to the head office of the Company. If such a document existed it was not tendered in evidence.

Captain Newman gave uncontested evidence that the plane flown by him arrived at Albury at 11.20 pm.. It was fifty minutes behind its scheduled arrival time. This arrival time is significant because it coincides with the start of the eight hour rule for the first crew members ie "the bottle to throttle rule".

After changing into casual clothes the second crew left the motel "shortly after midnight”. This was clarified under cross examination to be about 12.15. am They walked down “Olive Street to Dean Street”. About two minutes later they met Flight Attendant John Kinnell walking in the opposite direction who tells them that he was going to the motel. Instead of going to the motel as was his original intention he was persuaded to join them. All four then “walked down Dean Street to the Terminus Hotel, which is on the corner of Dean Street and the Hume Highway."

The evidence which I accept from Captain Newman is : “I think Ian and I both had one beer I think Meredith had a white wine, which is what she was drinking that night, and John had an Orange juice”. This testimony supports the evidence of Flight Attendant Kinnell that he had ceased to imbibe alcohol the previous night when he had his last "schooner" at the Terminus Hotel.

The beer they drank was of full strength and in the standard size known as a “Middy” glass. The Terminus hotel was closing so they left after 10 minutes. They did not meet the two applicants at this hotel as had been the expectation. Captain Newman asserts that Flight Attendant Kinnell stayed with them until 1.30 am.

Captain Newman amplifies this in his evidence:‑ “I remember we drank our drinks very quickly because there was nothing happening there” ‑ ‑‑They then walked down Dean Street towards the centre of town. They went across the street and then to another hotel. Captain Newman cannot recall the name of the hotel. The only detail that he can recall is that it had a green front on it and that it was on the same side of Dean Street as the Greentree Hotel. In this hotel they had two drinks each: middies of Beer for Ian Waldron and Captain Newman and a white wine for Meredith Payne whilst John Kinnell drank Orange juice
Captain Newman estimated they remained in the hotel: “around about 45 minutes.” They then left the hotel and walked half a block together.
“then my crew - Meredith, Ian and myself - crossed the street and went down to the New Albury Hotel - I don't recall the name of the street - and John Kinnell went - left us then and went back to the motel.”

Captain Newman estimates that they arrived at the New Albury Hotel: “around 1.30 am.” Although Captain Newman testified that John Kinnell had left the second crew shortly before 1.30 am I am of the view that it was later than 1.30 am. when Flight Attendant John Kinnell left the gathering but before their arrival at the Dimitri’s Bar at 1.45 am. I make this determination by taking into account the evidence of Flight Attendant Meredith Payne about her conversation with Flight Attendant Kinnell.

At the New Albury Hotel they went upstairs to a bar known as Dimitri's Bar or the Cactus Bar. Shortly after arriving there they meet the applicant Captain Garside probably about 1.45 am.

Captain Newman states that he did not see Captain Garside drinking anything and that he remained in his company for about an hour‑‑- “maybe a bit less.” He saw him dancing with Meredith Payne and he stopped occasionally for five minutes for a chat. Most of the time when he was on the dance floor he was actually in sight of Captain Newman.

He also made observations as follows:

“How did he appear? Did he appear effected by alcohol?‑‑‑No, he appeared quite normal.

At some time during that evening or during that night, did you say something to Don Garside about going home?‑‑‑Yes, I did.

All right. What was it you said?‑‑‑I suggested that it might be time to head off - head off home.

Approximately what time was that?‑‑‑I'd say 2.30.

Did he say anything to you when you said these words to him?‑‑‑I think he just agreed - said, "Yes, okay."

And what happened next?‑‑‑Shortly thereafter he - he left our company and I didn't see him for the rest of the night.”

I am of the opinion that this evidence is of crucial importance to the case of the Applicants:

“And what was the flight crew on that plane?‑‑‑The Captain was Don Garside, First Officer Brett McGeehan, and the Flight Attendant Shandell Flannigan.

Did you speak with Mr Garside?‑‑‑No, I didn't, apart from saying hello in passing.

What about Brett McGeehan, did you speak to him?‑‑‑Very briefly at the bottom of the stairs on boarding the aircraft.

This being the aircraft which left at 1.00 pm to return to Sydney on Saturday 5 August 1995.

He further testified: "Did anything happen in the course of that flight?‑‑‑No, nothing - nothing unusual.”

Under cross examination by Mr Goot of counsel for the respondent Captain Newman confirmed the following factors:

The second crew arrived at Dimitri's, about 1.30 in the morning.

2. Dimitri’s was very crowded.

3. There was” lots of music”..

4. It was fairly dimly lit.

5. The three of them had bought a drink and were just standing in a circle chatting when Captain Garside came over to the group.

Under further cross examination Captain Newman maintained that Captain Garside “ wasn't out of control at all.” He was cross examined about statements he had made on the issue which are not in evidence in these proceedings.

There was a careful cross-examination of Captain Newman by Mr Goot on the question of the intoxication of Captain Garside:

Captain Newman was very careful in the way he gave evidence. I gained the impression that whilst supportive of his colleague he had no intention to misled the court. An illustration follows:

“And you recall saying to Mr Escott that Mr Garside was not particularly out of control? Do you recall that?‑‑‑Yes, I do remember saying that, yes.

You, I take it, say that he did not appear to be intoxicated at all when you saw him?‑‑‑No, he wasn't. Well, I can't say he wasn't. He did not appear to be in my mind.

He did not appear to be. All right. And I think you said in a statement that you gave to the Civil Aviation Safety Authority - do you recall giving them a statement?‑‑‑Yes, I do.

That he did not appear to be "particularly intoxicated". Do you remember saying that in your statement?‑‑‑I remember reading the statement and saying that. Yes, I think I - I don't actually remember having said it.

I see, but you did not correct your statement when you read it in the statement?‑‑‑No, in that case I probably had said it, yes.
What did you mean by those "He was in control and did not appear to be particularly intoxicated"?‑‑‑Well, I can not say whether he was intoxicated or not. He did not appear intoxicated to me.”

And later on in response to questions about a statement made on or about 18 October 1995 to Gerard Comerford at the Civil Aviation Safety Authority.

“Now, you see, you say there "He did not appear to be particularly intoxicated". Do you now say that he gave no appearance of having been drinking alcohol at all?‑‑‑I'm saying he - I can not say whether he had been drinking. All I can say is that he did not give the appearance of being intoxicated. He was in a happy mood. He was friendly as Don always is. He was fairly chatty but he was not loud. He was not boisterous. He was not falling over drunk and that's about all I can say. He did not - I was - when I saw him I was not concerned that he was drunk.”

“Would it surprise you to learn that Mr Garside has described himself, whilst at Dimitri's, as being well over the limit for the purpose of driving a motor vehicle?‑‑‑Wouldn't surprise me.

Had you been - had you - prior to this event, had you, in social occasions, been in Mr Garside's company whilst he had been drinking?‑‑‑Yes.

On many occasions, or on - on rare occasions?‑‑‑Oh, a few occasions, yes.

And you understood him to be a person who held his liquor well, is that right?‑‑‑Yes.”

Captain Newman testified that he told Mr Garside around 2.30 am. whilst they were at Dimitri's, that it might be time for him to leave or to head off home or other words to that effect. He did this because he knew he had “a flight later on that morning” about 7.20 am. He explained his reasoning as:

“And I just figured it might be time he got some sleep.

I didn't feel it necessary. I offered it as - as personal advice.

I see. Well, you were not doing it for practice; you were doing it for a purpose, were not you?‑‑‑No, I was not doing it for practice; I did it - did it for the reason I've just stated.

Yes. Did it not surprise - did it not - sorry, I withdraw that. Did it not strike you as odd that you ought to have to make that suggestion to Mr Garside in the circumstances?‑‑‑No, it didn't strike me as odd.

He is much more senior to you, is not he, in Hazelton's?‑‑‑He is a bit more senior, yes.

Yes. He is a - you know him to be a check flight - a check train captain - check and train captain?‑‑‑He was a SAAB-type specialist and a check and training captain, yes.

Yes. And notwithstanding that, it did not strike you as odd that you should have to tell him that it was time to move on?‑‑‑As I've said, I didn't have to tell him to move on.

Yes?‑‑‑I now feel he would have moved on whether I'd said it or not when he was - when he felt it was time.

Well, you say that he - shortly thereafter he left your company?‑‑‑Yes.

Yes. You did not see him leave Dimitri's, did you?‑‑‑No.

And you saw Mr Waldron leave at about 3.30 am, is that right?‑‑‑Yes, thereabouts.

Yes, thank you. Now, during the course of the time that you were with Mr Garside at Dimitri's with Ms Payne, you - I want to put it to you that you suggested to Ms Payne that she should buy Mr Garside a lemonade or some such. Do you remember that?‑‑‑In honesty I don't remember saying that to her.

I see. Now - but if - if Ms Payne had said that you said it you would not doubt it, would you?‑‑‑No, I wouldn't doubt it. Why - however, why I would tell her to buy him a lemonade I'm not quite sure.

Yes. Could it have been a lime and soda?‑‑‑Would have been more likely a lemonade.

I was asked to excuse Captain Newman from giving further evidence but that it was the wish of Counsel for the applicant for him to remain in the court room.

At the end of the cross examination of Captain Newman I posed the following question to Mr Goot after having Captain Newman leave the Court room..

“Mr Goot, the state of the evidence from this man is that he flew back with Captain Garside on the basis that the flight was uneventful.

Yes.”

At the close of the case, there was no contention to the contrary made in the submissions on behalf of the respondent. I was impressed with Captain Newman. I am of the view that had he believed Captain Garside to be unfit to fly then he would have taken some action himself to rectify the situation. As this issue goes to other aspects of the evidence I set out an extract from his evidence as to the arrangements for entry to the motel after normal hours:

“Do you recall seeing anyone around or just inside the front door?‑‑‑I can't remember seeing the night manager. He may have been there, but I'd stayed in that hotel on numerous occasions and I don't actually remember seeing him that night.”
And you are unable to tell us whether the night manager was there at the time?‑‑‑That's correct. Although he normally did poke his head around the corner, or something, whenever we came in....If he wasn't at the desk, he would normally poke his head around the corner and acknowledge us.

Captain Newman had stayed at the motel probably 20 times. On one other prior occasion, he had returned to the motel at about the same time early in the morning. That occurred the week before.

From his evidence, I am able to conclude that on occasions when he has come back after midnight, sometimes he has had to press the button, and other times, such action was not necessary for him to enter the motel. This conflicts with the later evidence of Mr Thompson.

Captain Newman and Flight Attendant Meredith Payne continued their activities until 5.00 am returning to the motel together at about this time. He estimated that First Officer Ian Waldron left on his own at about “3.30-ish”. The evidence of First Officer Ian Waldron and Flight Attendant Meredith Payne confirm this part of the evidence.
Later on Saturday, 5 August 1995 Captain Newman. First Officer Waldron and Flight Attendant Payne travelled back to Sydney on the Hazelton flight at around 1 o'clock in the afternoon.

The evidence of Captain Newman was convincing, as was his positive contribution at two significant times with Captain Garside. I am of the view that had he considered Captain Garside to be unfit to fly then he would have taken some action himself to rectify the situation at 1.00 pm on Saturday 5th August 1995. Captain Newman returned to the public gallery and remained seated there until the conclusion of the evidence given by Mr Thompson.

First Officer Waldron

Ian David Waldron is also an airline pilot employed with Hazelton Airlines since May 1994. His evidence supports the case for the Applicant. On Friday 4 August 1995 he also flew from Sydney to Albury with Captain Newman and Flight Attendant Meredith Payne as the First Officer on that flight.

First Officer Waldron testified that the plane was running a bit late that evening and 11.25 was the sign-off period. He states that they arrived at the Greentree Inn Motel somewhere between a quarter to 12 and 12 o'clock.. He went upstairs and changed and then met Captain Newman and Flight Attendant Meredith Payne in the foyer of the motel at 12.10 am or 12.15 am.

He reports then leaving the motel and walking towards the town centre where they met with Flight Attendant Kinnell who was heading back towards the motel at that time. He confirms they met near to the Police Station. He cannot recall the actual conversation that took place. He confirms that they went to the Terminus Hotel and had one round of drinks in that hotel. Although he agrees it was standard beer he cannot recall whether it was a middy or a schooner. They left that hotel and went to another hotel, which was down the street some distance. After checking his notes, being his statement to the Civil Aviation Safety Authority, First Officer Waldron still could not recall the name of this second hotel. They had further drinks here, although Flight Attendant John Kinnell drank orange juice.

He says they arrived at the Dimitri’s bar at around 1.45 am without Flight Attendant Kinnell who he suggests left at about 1.30 am. About fifteen to thirty minutes elapsed before Captain Garside came up and joined their group. He says that Captain Garside was with them “between an hour and an hour and a half”.

“With Meredith and there was another girl. I don’t know who the girl was.”

First Officer Waldron testified that he did not see Captain Garside with a glass in his hand that night in Dimitri’s or drinking anything. He did not see Captain Garside leave the group. He described the situation as:

“we were standing at a sort of stand-up table. It was very crowded. It was very smoky, lots of loud music, and just - Don wasn’t there. I didn’t actually see him walk out.”

First Officer Waldron left the bar just after 3.00 - 3.15 am, and then walked back to the motel. Captain Newman and Flight Attendant Payne remained after he left.

In my view, the description which Mr Thompson gives to a member of the crew returning at 3.30 pm is most likely to be this incident which is recalled by First Officer Waldron, when being questioned by Mr Sweeney, as:

“....the night manager was there - I was sort of coming in, and the door normally opens for you when you arrive, and it didn’t, and it sort of took me by surprise, so I looked for the sign to ring the bell, and by the time we’d sort of actioned ourselves, he’d seen me coming, and he came across and opened the door.
So it was the night manager who opened the door?
I assume he’s the night manager - doorman - whatever his title is.
Did you have a conversation with this person you took to be the night manager?
Of no consequence, I might have just said “hello” in passing. I can’t actually recall the conversation.”

As to the appearance of Captain Garside in Dimitri’s Bar:

“How did Captain Garside appear?
Well, he was in a quite happy mood. He was being jovial. We didn’t really talk that much, to tell you the truth, because, as I said, it was very, very noisy, and it was quite crowded, and sort of the time that we’d seen him it’d be lucky if we said a half a dozen words, really, but he appeared fine.
Did he display any signs of being drunk?
Not at all.”

Under cross-examination, he confirms:

Arriving pack at the motel “some time around 3.30, maybe 3.35 am.”

There was a park along the way back to the motel with a hot dog stand the location of which he could not identify from the maps in evidence.

He affirms the incident at the door:
“And as I understand it, the doors of the motel did not open but you did not have to ring the bell because the night manager saw you?
Yes, well as I sort of stumbled and it didn’t open, I was looking for the thing to open it and then we sort of - our glances met and of course we walked across and I just stood there and the door was open. Yes.”

He confirms drinking several bottles of beer at Dimitri’s.

He flew out of Albury as a passenger on the flight flown by the two applicants in the afternoon of Saturday 5 August 1995.

During the day, probably at the airport by the counter staff, he was told the plane was late.

Finally in answer to a question by me:

“And as far as you were concerned, that flight was uneventful?
Absolutely.”

He has also confirmed that the afternoon flight back under the command of Captain Garside was uneventful. This evidence supports the case for the Applicant.

Again, although excused by me from further attendance, he was asked to remain sitting in the public gallery of the Court room.

Flight Attendant John Kinnell

The first of the witnesses for the respondent was Flight Attendant John Kinnell who has been employed by Hazelton for just over two years. He arrived in Albury on Friday 4 August 1995 at around 8 o'clock in the evening and went to the Greentree Motor Inn. He met Captain Garside and First officer McGeehan around 8.30 pm but no later than 9 o'clock and then went to Soden's Hotel, arriving there about 10 minutes later and conceding they remained there: "maybe it would have been an hour." They then left Soden's and went to the Terminus Hotel "about 15 minutes walking time." Again they drank and he then left with Captain Garside and First Officer McGeehan "standing at the bar finishing off their drinks"

The evidence in chief of Flight Attendant Kinnell was given in summary form in relation to the drinks "shouted" between Captain Garside, First Officer McGeehan and himself. However he confirmed under cross examination the account given by his fellow crew members of the "shout" together with the number and standard of drinks consumed by all of them while they were together.

The evidence of all three crew members reminds me of the former legendary “6 O’clock Swill” days when many rounds of beer were ordered and drunk just before the hotel was forced to close at 6.00 pm. Since then there has been a substantial change in the attitude of the community towards the consumption of alcohol.

He left with the intention of going back to the Greentree Motor Inn and started to walk up the street, when he got lost. Because he didn't know his way around, he walked up the end of the street, realised that he was going the wrong way and turned around and started to walk back again.

On his way back down he met Captain Garside and First Officer McGeehan. They were out on the street. Flight Attendant Kinnell alleges that this meeting took place "half an hour, 30 minutes after he had left them at the Terminus Hotel” and "It would have been after midnight". Using a map he stated that he met Captain Garside and First Officer McGeehan on the corner of Olive and Dean Street. They asked him to continue on with them, but he refused saying he was going back to the motel. He cannot remember the name of the pub or hotel they said they were going to attend. He crossed the road and started walking along Olive Street and then met up with the second crew outside the police station ten or fifteen minutes later.

I found his evidence at this stage to be very confused about the location of the various drinking establishments he attended on that night. I am also of the view that not much reliance can be placed on his time estimations. Captain Newman maintains that the second crew met Flight Attendant Kinnell two minutes after 12.15. The shortly after 12.15 pm. time is also confirmed by Flight Officer Waldron and Flight Attendant Meredith Payne in their evidence. On this basis, I am able to determine that the second crew met Flight Attendant Kinnell shortly after 12.15 pm and they went to the Terminus Hotel for a short period. They then went to a second hotel for about 20 minutes or half an hour. On this version he would have left to return to the Greentree Motor Inn around 1.00 am. I do not accept his timing as correct. It is more likely that he returned to the motel after 1.30 am and closer to 1.45 am. In addition, I have discounted his evidence on these issues, inter alia, because I have allowed for a component of self interest.

He then testified that he walked through the foyer and that the night manager was there although he was not too sure about this aspect. I find it significant that he does not mention the need to call the Night Manager to gain access to the Motel.

The alcohol consumed by all three of the first crew should be compared with the more moderate drinking of Captain Newman ie. middies instead of schooners. The evidence of Captain Newman is most important because it shows a healthy respect for “alcohol” and confirms that Flight Attendant Kinnell was “shortly after 12.15" drinking “Orange Juice”. This in my view tends to support the accounts of both Captain Garside and First Officer McGeehan that their last drinks were taken at the Terminus hotel. If this were not to be the case both of them would have been fully aware that they were flaunting the eight hour rule. I am of the opinion that none of the first crew were in breach of this rule.

Flight Attendant Kinnell confirms that he did not have an arrangement for a wake up call. He arose about 5.30 expecting to depart the hotel at 6.30. This was because the flight was due out at 7.20, and normally they have to be at the airport 45 minutes before the flight goes out. He waited downstairs whilst the taxi turned up not long after he arrived in the foyer.

After a while he asked the Night Manager how to ring the rooms. He dialled and got no answer. He rang one of the rooms and the other phone did not give a tone or ring. Again he is unsure as to what he did in relation to the phone calls. However, he then went up to the level that the rooms were on to knock on the doors. He only knocked on one of the doors. Again he could not remember which door he knocked on. When counsel for the respondent sought to clarify this he answered "216" or "217" which is clearly not right, for the rooms occupied by either of the applicants. He knocked on a room on the left hand side but when no one answered he went back down to reception. He further testified "the night manager then telephoned and the taxi driver had come in and said that the meter was running, so I went with the taxi driver out to the airport and asked him to call another taxi or come back to the hotel". I find that at about 6.50 am Flight Attendant Kinnell decided to go in the taxi to the airport and, at the same time, also requested the Night Manager to “go up to Don and Brett's rooms and wake them up.”

He then "took the catering into the airport”, said to Kate that “Don and Brett will be over later” and went out to the aircraft and took off the prop ties, “and the - I can't remember what they call them - and the chocks around the wheels". The removal of the prop ties and the wheel chocks would not normally be part of his duties but he had done this because they were running late. He then asked "John who's the groundsperson down there to open up the aircraft so that he could get into it and went back into the terminal and started with the urns and getting the catering ready".

At about 7.15 am he was in the back room behind the check-in, and the applicant came in : "Brett came through first, I think and said, "Thank you for waking us up." and Don came through and he said the same thing and I said to Don that I did try but nobody answered and Don just said, "Okay" and left it at that".

His observation of their appearance that morning when they arrived at the airport was that they seemed normal and they were in their uniform. During the course of the trip,” Brett had remarked to him that he was tired and that he had to do Albury, Sale and Traralgon afterwards.” He does not remember further conversation. He gave no other evidence of anything else wrong with the flight.

He was asked about drinking with either Brett or Don previously to the events of Friday 4 August 1995 and Saturday 5 August 1995. He conceded he had been out with Captain Garside when he was based in Geelong in March 1995. They had gone to hotels and bars that were in Geelong itself and they both drank alcohol. On that occasion Captain Garside was to passenger out whilst Flight Attendant Kinnell was working as the flight attendant.

Captain Garside was late for the flight and in conversation with Flight Attendant Kinnell suggested he was not feeling well. Flight Attendant Kinnell gave a description of his appearing "tired". He did not recall the time they finished on that occasion in Geelong although he did not think it was very late.

There are a number of inconsistencies in his evidence: Under cross examination by Mr Sweeney counsel for the Applicant, he did not remember the room he was given. At the time of giving his evidence he did not recollect the room numbers but says he knew them at the time of the incident.

He told the Civil Aviation Safety Authority he was drinking light beer when this was clearly not the case. He admits that he was not keeping track of time too precisely, during the evening and they remained at Soden's Hotel between 45 and 60 minutes. They were at The Terminus Hotel for something like the same period. He agreed that he left between 11.00 pm and 11.30 pm.

He confirmed that at the time he left The Terminus Hotel: "Don and Brett were finishing their drinks at the bar and they appeared quite normal and they did not appear drunk.". On his own admission Flight Attendant Kinnell could only have slept between three and a half hours and three and three quarter hours on that morning.

His evidence that he had stayed at the motel previously and had never noticed any difficulty about getting in to the motel after midnight supports the case of the applicants. He maintained that he had never noticed the doors locked so that you could not get in. On the morning of Saturday 5 August 1995, he did not remember them being locked so as to prevent him entering the motel.

He confirmed that at all times Captain Garside and First Officer McGeehan appeared normal and were not drunk. He also agreed that the next morning when they got to the airport, they again appeared normal.

An interesting response from Flight Attendant Kinnell occurred under re-examination by counsel for the respondent: "Are you able to say how it is that you recollect that it was after midnight when you met Don and Brett in Dean Street?‑‑‑Because I was annoyed that I was only going to get sort of four or five hours sleep if I had to get up again. That's why I wanted to get back to the hotel so I could get to sleep". My view is that this response arises out of the evidence of Flight Attendant Meredith Payne who maintains it was she who was daring him to stay out to 1.30 am and not the applicants which in my mind fixes the response as being attributable to the later part of the outing and therefore cannot be relied upon to establish the time of the earlier meeting.

Abusive Telephone Calls

There was an allegation made by Flight Attendant Kinnell that First Officer McGeehan had made abusive phone calls to him. No allegation of that nature was levelled against Captain Garside and it is not necessary to further discuss it in these reasons.

The Night Manager

Mr Thompson, the Night Manager of the Motel gave evidence on behalf of the Respondent.

Until 23 August 1995, Mr Thompson was employed as the Night Manager of the Greentree Inn Motel at Albury. He had held that position for 11 years and prior to then he was employed as general handyman. Before working at the motel he did aircraft maintenance at Albury Airport. He had prior service with the Royal Air Force as a aircraft fitter in the United Kingdom.

As the Night Manager of the Greentree Inn Motel, his normal hours of duty were 10.45 pm till 7.00 am, 7.30 am over five days per week on a roster basis. He testified it was his normal practice to "shut the side door - approximately mid-night, and check the back doors, once all the staff have left; check all ground doors are shut, barring the main doors." When he leaves the reception area he shuts the main doors and locks them.

He drew a sketch of the entry lobby and associated areas of the motel. I am satisfied on the evidence that at all relevant times the applicant came and went through the main doors of the motel, all other doors being locked by about 11.45 pm.

Mr Thompson further testified that the front sliding doors open and close as people enter and leave. If it is a really hot night they are left open. If the doors have not been switched off he remains around the corner near the Manager's office behind the front desk. If the doors are locked off there is a night bell and it operates a beeper that was carried by Mr Thompson. If the night bell is pressed and the beeper operates Mr Thompson goes immediately to the front doors to open them.

Mr Thompson testified he came on duty on the evening of 4 August 1995 at his normal time - 10.45 pm. He recalled a Hazelton crew - two males and one female - arriving at the motel towards half past 11. No arrangements were made for wake up calls. They were the late crew and were not due to leave until the afternoon.

The arrangements for a wake-up call for the early crew are normally booked before Mr Thompson arrives and they are recorded on an early morning call sheet. The call sheet is destroyed. It was part of the duties of Mr Thompson to make sure the aircrew are woken.

Mr Thompson concedes that he did not see Flight Attendant Kinnell return "to the motel". This is consistent with the recollection of Flight Attendant Kinnell.

Mr Thompson testified he saw the second of the two people

“Just after 3 - I’d locked the doors and started to go up in the lift.
And what happened after that in terms of that person?
Well he pressed the night bell, and I came straight back down and let him in.
Right. Did you speak to him?
Yes. I asked him - Oh well, every time anyone comes in, I ask them if they’ve had a good night and how they’re feeling.”

In my view, this was not an answer which can be relied upon as part of the actual recollection by Mr Thompson of what was said between them. Shortly afterwards in his evidence MrThompson says:
“As I say, he muttered something. He wasn’t very coherent at all.”

Mr Thompson was also asked for an opinion about the sobriety of this person. He described him as drunk based on the way he walked and looked. He amplified this:

“When he walked straight across, he looked at something - I don’t know what it was, and then he went to the lift. It took him a couple of goes to get the lift down.
What do you mean by that?
He pressed the little square on the wall that opens the lift doors. It took him a couple of goes to press that.”

Mr Thompson told the court that the second crew came back to the motel “about 4 o’ clock”. I have not included his description of the return of First Officer McGeehan in these reasons. The next involvement of Mr Thompson was to wake the crew. Mr Thompson says he first rang Room 215 and got no answer and then tried 214 and it came out not connected. He then gave 215 a try again, got no answer so he went up and knocked on the doors at about ten past six. He knocked on 215 first and got an answer so he shouted: this is a wake-up call.

He then tried 214 which was the room occupied by Captain Garside and got no answer at all: "so as I say, I used my master key, went in and shook him". Mr Thompson maintains he had to really shake him until he got a reply.

Mr Thompson testified that he next saw this person, who had taken a couple of goes to get the lift down, about 5 past, 10 past 6. “

“I went up and banged on the doors. I got no answer, so I used my master key and went in, shook him by the toes; he was dead to the world, and so I said, “It’s time you were up - your early morning call” and went out the door. Mr Thompson says he went back and did the same thing at 6.30 am.

He “gave him a good shake, told him he was due to take off.” He says “Righto; I’m coming”.
He then saw him “20 to 25 minutes later, he came down the lift with a crowd of people”. He then pointed out Captain Garside describing him as “second on the right, blue shirt and tie on”.

At about 6.25 am - 6.30 am Flight Attendant Kinnell came down to the foyer. Again Mr Thompson could not recall the detail of the conversation except that: "I just told him that the other two - I had only just woken them up".

Mr Thompson agrees with the evidence of Flight Attendant Kinnell that the pre-booked taxi arrived about that time and thereafter Flight Attendant Kinnell went out to the airport and the taxi was to come back or another one summoned. There is a significant difference between the testimony of Mr Thompson and Flight Attendant Kinnell who suggests he asked the Night Manager to go up to their rooms and wake them up.

Mr Thompson went back up and was just about to open the door of Room 215 (the room occupied by First Officer McGeehan) when: "I knocked and he opened it himself. He was three-quarters dressed". Mr Thompson says he told him that the taxi had gone and was on its way back. He recalled that: "Brett came down about 5, 10 minutes later" and he offered him a cup of coffee. I have omitted his description of First Officer McGeehan from these reasons.

At about the time when the taxi came back Mr Thompson told First Officer McGeehan "well, he'd better go and I'll go up and see what I can do with the other fellow". It was at this stage Captain Garside came down in a lift with "other people that were on a coach". There was no oral communication between Captain Garside and Mr Thompson at this time. However Mr Thompson described Captain Garside as:

“Well, he’d got his strides on, his shirt, and tie just strung around his neck, jacket undone, the hat on the back of his head, and he just walked straight past, didn’t say a word or anything.”

At this point in giving his evidence Mr Thompson made a punching gesture with his right hand which I regard as unusual. He suggested that Captain Garside did not look very sober and, “looked virtually the same state as when he went to bed”.”

When asked to explain, he said:

“Well, he didn’t walk in a straight line, for a start off.
Right?
And, as I say, he just walked straight past as though there was nobody there.
Right?
Climbed in the taxi and away he went.”

A short time later, he added that he looked shocking.
Mr Thompson further testified that the girl at the Hazelton desk: "rung me up twice getting very desperate and the second time she rung up I told them they'd just left, the taxi was just pulling out". He concluded his evidence in chief with this observation about their capacity to fly an aircraft: "Well, if I'd have been a passenger, I wouldn't have flown with him".

Under cross examination Mr Thompson conceded:

He told the CAA person that “he was in 214” and was informed that his name           was Captain Don Garside about five weeks later.
He described the person he let in at 3.00 am as about 5”7’ in height, solid build,        dark hair, aged about 30 to 35 years.
The person was about his height but stockier than Mr Thompson was with dark           hair.
He did not need his key and “just meandered through the reception area.”
During his visits to room 214 because of the blanket covering the person, he does      not see him at all, in particular, he does not see his face.
He had been told by Mr Escott that the person in room 214 was named “Don”.
He agreed that his recollection of the events on 4 and 5 August 1996 had “faded       out”.

Mr Thompson also maintained:

That the second crew came back together at four o clock.
That the hair or the person he described as coming in at 3 o clock did not appear        to be red.
When he opened the door of room 214, he saw “Oh just a bed with a body on it,      flat on their back, with the blanket right up over”.
His feet were not sticking out of the bottom of the blanket
He shook only one foot
He did not check the telephone because he “had other early calls to do”
At about 6.40 am, he knocked on room 215 and the door opened and “big Brett         was there three quarters dressed” and said he was okay, he then went into 214.
He then opened the door and Captain Garside was in the same position so “I    shook his toes again and shouted at him”. Captain Garside was still covered by       the blanket and he had not moved.
He made a gesture with a closed fist moving the wrist from side to side and     backwards and forwards.
First thing in the morning, he has to deal with “early calls, checking people out,       switching the gear on in the kitchen for when the breakfast staff come in”.

Mr Thompson was asked if he saw anything else around the bed or on the floor. He was pressed on this issue. “No suitcases or anything like that around the bed?” “Didn’t take notice, I mean its a busy period. Its just a case of in, wake them up, out again and downstairs. People queuing up to book out.”

Mr Thomson was asked whether he knew that Captain Garside had lost a foot and wore a prothesis. He denied that he knew this at the time of giving his evidence. At that stage, he was asked if he noticed an artificial leg or foot on the floor next to his bed. After he answered “No”, Mr Goot counsel for the respondent objected to the question on the ground that evidence of this disability had not been given by the applicant. The questions were allowed. There then developed a series of questions from Mr Sweeney to Mr Thompson as to whether or not he had made prior statements referring to the shaking of “feet” in its plural sense. Mr Thompson did not mention to Mr Comerford and Mr Escott the suggestion that Captain Garside had difficulty pushing the button to call the lift. His explanation for this was that he only recalled it later “when I had been thinking hard that I remembered it”.

During his cross examination Mr Thompson disclosed to me for the first time that after 1.30 pm he was balancing the tills at the desk. This is not mentioned in any of his earlier statements.

Mr Thompson first made a statement about these issues to the company on 12th September 1995. That statement incorporates the following matters with respect to Captain Garside:

He recalled the incident some four weeks ago on the 4th and 5th August; "because it was a time when I could not get the crew members out of bed in the morning".

He claimed to be located at the night desk: "with the door locked guests needed to ring the bell at the front desk and I would let them in".

“Shorter fellow in #214(Don) arrived some 2 hours later (about 3.30 am).
           could tell he had considerable amount to drink.
           slurred speech.
           swayed in walk

He is able to ascertain levels of intoxication because : “In my previous role ,a lot of people come in at different levels of intoxication
usually tell by speech and way walk to lifts”

There was no other involvement with the two prior to the early morning call.
Early morning calls were booked for Captain Garside and First Officer      McGeehan
At 5.45 am Don’s phone at #214 was off the hook.
           Brett’s phone rang on #215 for 3 minutes without answering”
He then went to Don’s room (#214)knocked loudly on door.
           No answer (I was concerned about customer’s physical state )
           I used master key to open door .
           Couldn’t stir him .
           Shook his feet
           Stirred
           Knocked on #215 (Brett)
           I also opened door just as he approached
He then went downstairs
           Suggested to flight attendant that he should go and send back taxi for other two (it was close to 7.00 am). Said I will go and get them out!
           Went up to #215 knocked on Brett’s door, said he was coming.
           Knocked on #214.
No answer.
Unlocked door again.
I really shook him this time (I thought he was dead!).
I said taxi waiting and plane due to take off.
He said OK.
I said you are supposed to be in the air.
He said OK.
Went downstairs.
Brett having coffee
Taxi back.
Said Brett better go out ,would get Don there later.
Just then lift door opened with some “coach” passengers and “Don”
Don looked a mess.
Cap on back of head,
Tie not properly on.
Coat carried.
Both walked to taxi.
No comments.
There were a group of crew that came in after “Don” but they clearly were not      in the same state as Don.

He had not heard anything about this incident in the hotel or about the town.

In his view neither were in a fit state to drive a motor vehicle in the morning
He thought on the previous night they were the” late crew”. He was in the English Airforce and if crew reported in that state, I would have reported
them as” incapable of flying”
He volunteered that the “Cactus Bar” is a night club primarily for younger people in the New Albury Hotel

There is a further statement made some two days later to the Civil Aviation Safety Authority by Mr Thompson. This document is dated the 14th September 1995. It is important to note that the statement dated 14 September 1995 varies in a number of significant ways from the document which was prepared by Mr Escott. It includes the following endorsements:-

"This statement made by me accurately sets out the evidence which I will be prepared, if necessary, to give in court as a witness. This statement is true to the best of my knowledge and belief and I make it knowing that if it is tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true."

That endorsement is necessary in order for the statement to be admissible as evidence in any committal proceedings in New South Wales under Section 48A Justices Act 1902 (NSW). Moreover it should be noted that Section 48H Justices Act 1902 provides that if a person makes a false statement then they are subject to penalties. For an offence which is dealt with summarily the maximum penalties are 10 penalty units or imprisonment for a term not exceeding 12 months or both whilst where the offence is dealt with on indictment the penalty is fifty penalty units or imprisonment for a term not exceeding five years or both. In the light of these endorsements it seems to me that this statement although it is later in time then the earlier one is the one to which most attention ought to be directed.

It is clear that there are a number of variations to the story which was told by Mr Thompson although not in my view deliberate but they create sufficient discrepancies to make his evidence unreliable and to require a substantial discount when taking it into account. I have not included in these reasons the discrepancies which I have recorded in respect of First Officer McGeehan.

The first alteration in his statement is as follows:

“At some time after 3.00 am, I was doing my security check when the front night bell/beeper system was activated. I returned to the reception area and allowed a guest subsequently known to me as Don, another Hazleton pilot, entry to the motel. I would describe Don as about 5 feet 7 inches in height, solid build, dark hair, aged about 30 to 35 years.”

It is clear from the way this statement is worded that Mr Thompson could not identify Captain Garside by name at the time he arrived back at the motel and that his description of his appearance at the time therefore is suspect. His description is factually incorrect in at least two aspects, being height and colour of hair.

The statement continues:

“I greeted him in my normal manner, I cannot recall if I gave him his room key or not. In my opinion Don appeared to have had been drinking. I base this opinion on my observation of him when he entered the motel. He staggered when he walked towards the lift and his speech was slurred when I spoke to him and he answered. My normal practice is to greet the guests when they arrive with “How are you, Did you have a good night?” or similar words. Don answered me but I couldn’t recall what he said only his speech it was slurred. In my opinion he was what I would describe as drunk”

He makes the following statement regarding the night security checks: "during the night I conduct security checks of all areas inside and outside the building. When I undertake those tasks I lock the front door when I leave the reception area". There is clearly quite contradictory evidence from at least two or three other members of the Hazelton crews that they were able to come back into the motel and the front door of the premises was not locked.

There is an even more significant difference as follows:

"About 4.00 am three more Hazelton flight crew members, two males and a female arrived. I allowed them entry to the motel, I recall giving room keys to two of them and they went also to the second floor. In my opinion none of those crew members were affected by alcohol."

I find his claim that none of those crew members were affected by alcohol a little difficult to accept given the acknowledgment that they had been out drinking for a considerable period of time. Nevertheless I am not obliged to consider this aspect of the matter in this case. The remainder of this part of the statement is quite clearly wrong because the evidence from Captain Newman, Flight Attendant Meredith Payne and First Officer Waldron is to the effect that First Officer Waldron returned to the motel separately and before Captain Newman and Flight Attendant Meredith Payne who returned together much later in the morning. I am of the opinion that it was First Officer Waldron who returned at 3.30 am to the motel and that this led to some confusion in the mind of Mr Thompson.

There is a further discrepancy in his statement on the question of the time of the early morning calls:

"in respect to rooms 214 (Don's room) and 215 Brett's room I rang them at the requested time 6 am approximately, there was no answer from Brett (Room 215) and Don's (Room 214) was unobtainable indicating the telephone was either broken or disconnected."

He claimed in his earlier statement that he had phoned at 5.45 am.

Again he makes a further claim as follows:

"following this I went to the second floor and knocked on Brett's door, Brett answered I received no answer from Don's room and I then used my master key and entered Don's room. It has been my normal practice to use the master key to gain entry to any room which does not respond to either a telephone or a knock on the door".

This incident is set out in the reverse order to that which was outlined in the earlier statement and there is no mention of opening the door to Room 215.

The statement further goes on to say:

"I entered Don's room 214 he was in the bed with the blanket over his head lying on his back, I shouted and received no answer and then shook him by the toes. He appeared to awake and mumbled something I said “its your wake up call” and then went back down to the foyer. The male flight attendant with Brett and Don's flight was already in the foyer waiting. I would estimate the time to be about 6.30 am. I told the flight attendant that I had just woken his mates up because they did not answer their calls.”

It seems to me that his evidence then coincides with that of Flight Attendant Kinnell who then left to take the taxi to the airport. Although the statement seems to suggest that there was a 20 minute wait for the arrival of a booked taxi due at 6.30 am.

“I then went up to the second floor and knocked on 215. Brett answered the door, partially dressed, I said “the taxi has gone with the flight attendant and will come back for you and Don”. I then went to 214, pounded on the door, I received no reply. I then used my master key to gain entry and went inside. I saw that Don was exactly in the same position as before (dead to the world) I really grabbed his toes strongly this time and shook hell out of him.
I said “you are supposed to be in the air”
He said “ok I’m on my way”
I then left the room and went down to the foyer.
After about 5 minutes, Brett came down and had a cup of coffee.
The taxi then came back.
I said to Brett. “You better get in this taxi and then send it back for your mate”
Brett finished his coffee and as he began to walk towards the taxi, the lift opened and Don arrived with other people in the lift.”

Thereafter his statement again contradicts, the earlier statement about the dress:

“He was dressed in uniform with his tie just hanging around his neck and his cap on the back of his head, his jacket was undone.
He walked straight past me and went straight to the taxi with Brett.
In my opinion that morning Brett appeared to be suffering from a hang over but was dressed properly, Don appeared to be still under the influence of alcohol based on the way he looked and his general appearance."

He again makes the statement that he would not consider either Brett or Don fit to fly any aircraft that morning. I observe that unfortunately he did not see fit to make any complaint about it at the time although he had two clear opportunities when the "girl at the Hazelton desk rang.”

In my view the exact time of the departure of the applicant and First Officer McGeehan no doubt could have been checked with the records of the taxi company, however I expect that it was between 7.00 am and 7.10 am.

The Night Manager, Mr Thompson, is a witness who had a long aviation background in Britain and Australia before joining the motel as Night Manager. By his answers and demeanour whilst giving evidence he left no doubt in my mind that he was appalled by the behaviour of the air crew on this occasion. Mr Thompson also showed a degree of irritation in his manner towards the two men and I consider that this may have coloured, although not in an intentional way, his evidence to the court.

Moreover he had two clear opportunities being the telephone conversations with the Airport operator when by raising his concerns, he would have been able to put a stop to them flying the plane. For whatever reason, he did not adopt this course of action.

In the light of the discrepancies between his statements and his evidence, I cannot accept that Mr Thompson, albeit with all the goodwill in the world, can be regarded as a sufficiently reliable witness upon which an expert can rely to justify findings as to alcohol intake. My view is reinforced by the differences which have occurred in the various reports he has given of his observations of the applicant and First Officer McGeehan.

In the light, inter alia, of these discrepancies, I am unable on the balance of probabilities to conclude that he entered the room occupied by Captain Garside on more than one occasion. I am satisfied that he entered the room occupied by Captain Garside between about 6.35 am to 6.45 am and shook the foot of Captain Garside who then woke and said words to the effect:

“Ok, I’m on my way”

I am satisfied that Mr Thompson made telephone calls to wake both applicants prior to that occurrence. I am of the opinion that the entry to the room occurred after Flight Attendant Kinnell left to go to the airport. Mr Thompson may also have knocked on the doors of the rooms of the applicants at an earlier time. However I am not satisfied that he then entered either room. I conclude that the telephone to Room 214 was not operating during this period.

Observations made by me of Individuals present in the Public Gallery of the Court Room During the Hearing

Throughout the hearing, a number of male persons, presumably colleagues of the applicants or fellow employees, attended the hearing and sat together with First Officer McGeehan and Captain Garside. Occasionally, some females joined them. This sitting arrangement was, in view of the circumstances, no doubt intended as a forensic exercise to test the identification memory of Mr Thompson. This device failed because Mr. Thompson was able to correctly identify in court Captain Garside and First Officer McGeehan. Although his description of Captain Garside having dark hair was clearly wrong it being red or reddish in colour and he gave an incorrect estimate of his height.

The High Court has considered the question of the “in Court Identification" recently in Dominican v R (1992) 173 CLR 555 and notes that “the Judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed”. Generally, reservations are often held about the identification of persons by eye witnesses. (See also the High Court decision Davies and Cody v. R (1937) 57 CLR 170 at 180 ) The importance of the identification made by Mr Thompson of the two applicants is that his description of their appearance on their return and exit from the motel is the keystone on which the evidence of the expert for the respondent stands. In my view little reliance can be placed on the evidence of Flight Attendant Kinnell on this issue as he consumed the same amount of alcohol as First Officer McGeehan although in a slightly shorter time, nevertheless his observations of their appearance and sobriety is favourable to the applicants. It is clear from the statements made by Mr Thompson and from his cross examination that he has received some assistance after the events in identifying the applicant and First Officer McGeehan. The extent of that assistance in identification is not clear. Although this is not a criminal trial the allegations are quite serious and the standard of evidence falls within the scope of Briginshaw v Briginshaw (1930) 60 CLR 336. My view is that this standard has not been reached.

In my view, this situation means that the respondent cannot be heard to say that it was justified in terminating the employment of the applicant.

I propose to follow what is now a strong line of authority which has been developed following the decision of the High Court in Victoria & Ors v The Commonwealth (1996) 66 IR 392. This line of authority commenced with the decision of Lee J in Nettlefold v Kym SmokerPty Ltd (unreported, IRCA, Lee J., 4 October 1996) and Marshall J in Kerr v Jaroma Pty Ltd (unreported, IRCA, Marshall J, 7 October 1996) respectively. Both of which decisions support the proposition that an employer must justify a termination in the sense that there must be objective and fair grounds.

The evidence in this case leads me to the conclusion that there was not well founded or just grounds for the decision to terminate the employment of the applicant. There was not a valid reason to terminate the employment of the applicant.

Section 170DC: Employee Opportunity to Respond to Allegation

In his opening remarks, Mr Sweeney SC addressed me on the basis that there was a breach of section 170DC and he outlined a number of matters which he intended to raise in the case.

Again, the evidence given by the parties to the Court was deficient in that no evidence was called by the respondent from Mr Escott and Mr Terrell. It appears to me that it is likely that during the course of the interview the applicants had the opportunity to address the various issues as known to them on 8 September 1995. However, on 8 September 1995, they were suspended to allow the matter to be investigated. It is not my intention to make any finding against the respondent as being in breach of section 170DC in terms of the procedures followed at the actual interview. I note that at the second interview, Captain Peter Larsen was present as a witness for the applicant It is suggested that as well as being a pilot, he was a qualified lawyer. In those circumstances, on the surface, it appears to me that the procedural aspects of the interview may have been sufficient.

The letter dated 15 September 1995 was issued two days after the company was informed by the Civil Aviation Safety Authority, through its Chief Pilot, that the Authority was investigating the incident. According to the report of Mr Comerford, the Chief Pilot knew nothing of the incident, until shortly before the discussion with Mr Comerford and after the suspension of the applicant had occurred. It seems to me, in the light of the importance of the Chief Pilot understanding what is happening with the pilots and Air Crew under his command, a very large breakdown in communications occurred on behalf of the company. That is not a matter for me to investigate.

I note the advice of Mr Comerford that once that matter was brought to attention, the officers of the company co-operated in every way possible with his investigation. It seems to that, as at 13 September 1995 the company was well aware that the Civil Aviation Safety Authority was undertaking an investigation of its own. The report of Mr Comerford on his investigation was dated 13 October 1995.

In Perrin v Des Taylor Pty Limited (1994) 58 IR 254 at 256-7, Moore J said the following about the purpose of section 170DC:

"Its purpose is at least twofold. It is to give the employee the opportunity to demonstrate that the allegations have no foundation in fact or they should not be viewed as reflecting on the employee's capacity. In the present case, the applicant may have been able to show that the complaints about slow delivery of parts had no factual foundation or that there was an explanation for their slow delivery that did not relate to any want of effort on his behalf.
A second purpose of s 170DC is that an employee with whom an allegation has been raised may be able to persuade the employer that, while the allegation is of substance, there are factors that should persuade the employer not to terminate the employment. They may be extenuating personal circumstances or they may involve undertakings about future conduct."

In order to provide the applicant with an opportunity to defend the major allegation against him, that is the allegation of a probable breach of the “Civil Aviation Act, Orders and Regulations” it was necessary for him to have available the result of the inquiry which Hazelton knew was in progress at 13 September 1995. There is no evidence that such an opportunity was given to the Applicant. In the circumstance, the applicant should have been suspended with out pay, if necessary, until the result was known. The respondent with the benefit of the report could then have given the applicant the opportunity to defend himself. After considering the report and any representations, the company would have then been in a position to continue to dismiss the applicant without contravening the section. Mr Comerford’s report indicated that there should be no prosecution against First Officer McGeehan and there would be no prosecution against Captain Garside however, he would be counselled. In my view, the company has breached section 170DC of the Act, in that it should have given the applicant the opportunity of receiving the report of Mr Comerford and making representations based on the recommendation that he not be prosecuted.

There is a public interest aspect to this situation. In coming to the conclusion that there was a breach of Section 170DC, I have taken into account Section 170DF(1)(e) makes it quite clear that it is unlawful for an employer to terminate a person who has against his employer, undertaken:

“the filing of a complaint, or the participation in proceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities”.

In this case, Captain Garside, as he was obliged to do, reported the matter to the Civil Aviation Safety Authority. In my view, the reporting of incidents involving breaches of Aviation Safety is to be encouraged and therefore there is a public interest in ensuring that where somebody reports a matter to the Authority they do not immediately jeopardise their employment. In my opinion, Section 170DC operates to protect him until the enquiries that have been initiated by his report, can be determined. In this case, I am of the view that Captain Garside was entitled to have recourse to the competent administrative authority which he did and to have the respondent await the report of the Civil Aviation Safety Authority before terminating his employment. He should have been given the opportunity to make representations based on that report.

In addition he may have wished to give “undertakings about future conduct” to Hazleton following his counselling session with the Civil Aviation Safety Authority. In those circumstances I propose to make a finding against the company that there was a contravention of Section 170DC. In my view, the company would have been justified in the circumstances as known to it on 15 September 1995 of advising the applicant that they proposed to suspend him without pay until the completion of the investigation by Mr Comerford.

IS IT IMPRACTICAL TO RE-INSTATE THE APPLICANT?

I am required by the provisions of the legislation to determine the impracticability of the reinstatement. Some early views were expressed on this issue in Liddell v Lembke, ICR 466. Based on the discussion on this issue in that case, I am satisfied that I have only a limited discretion not to re-instate the applicant. Nevertheless I am obliged by Section 170EE (1) to take into account all the circumstances of the case.

In view of the findings which I have made in the light of the opinion expressed by Dr Chesher, and the finding that Captain Garside had a zero blood alcohol content at the time of the departure of the aircraft, reinstatement appears to be required. There is a suggestion in the evidence that there was previous incident of late night drinking when he was off duty and was not part of the crew in the case of Captain Garside. However, I am not satisfied with the responses by either pilot, to the questions raised by me regarding their view, as at the date of hearing, of the possible affect of the amount of alcohol that was consumed by them on that night. It may be that the applicant needs to have a better understanding of the rate of metabolism of alcohol in his blood. This response appears to me to give me grounds on which I could exercise the discretion and find that it is impracticable to reinstate Captain Garside. In my view, Section 170EE (1) allows me to take account the legitimate concerns of the company and the public interest in air safety as to the possibility, however remote, that there might be a repeat performance.

At the conclusion of Mr Garside’s evidence and cross-examination, I asked him a question along the following lines: If given the information that he now had in his possession in relation to the events that occurred on that night and the other material, would he make the same decision to fly again? Captain Garside immediately answered me: “I don’t feel that I was fatigued”. I then pointed out that this was not answering my question and repeated the question. He answered “Yes I would”. I noticed that he immediately left the court room in an agitated state. The hearing then proceeded with Mr McGeehan giving his evidence, and after lunch, I was asked by Mr Sweeney SC if his client could be recalled to provide me with a further answer to my question. This proposal was objected to by Mr Goot, however I allowed the recall of Captain Garside on the basis that Mr Goot would be able to further cross-examine him.

On his returned, he continued his answer as follows:

You wanted to elaborate on that answer? --- Yes. When I first heard the question, I guess I didn’t really understand what you were asking, sir. I’ve had a chance now to think about that specific question and as soon as I walked out of the court room I knew I’d answered incorrectly. I’m certainly not going to admit to being drunk and I’m certainly not going to admit to being fatigued but what I am concerned about is, as far as being out at such a late hour and having to fly an aircraft at such an early hour, I believe that there’s been an error. An error in my professional judgment in relation to that. Hazelton Airlines, I have been employed with for the past 10 years. I valued my employment with Hazelton Airlines, in fact, it was more that employment. It was - with my career, it was my life. I’d like to think that I’ve contributed a great delay to the Hazelton Airline network. As I said, I’ve been there for 10 years. Hazelton’s have been a good employer for me in that I’ve been promoted through the ranks and to ultimately attain the position as Fleet Manager SAAB 340. As I said, I now know that there has been a professional error in my judgment. I’d like to give an undertaking to the court and certainly to Hazelton Air Services that given the opportunity I’ve certainly learned the error of my way. It’s been a long, drawn out process - it’s six months - it’s been a very costly exercise and I’d just like to, as I said, give an undertaking that I’ve learned a valuable lesson from this and that certainly - it certainly will not happen again given the opportunity.”

Mr Goot was allowed to further cross-examine him which he did.

It seems to me that there is a need on behalf of the respondent and the public interest, that I impose a condition precedent to a finding that it is not impracticable to reinstate the applicant. Such a condition will ensure that the company is able to take practical steps towards ensuring greater certainty about the alcohol intake of the applicant. It will also restore the confidence of the general public in the capacity of the applicant to conduct himself more appropriately in the future.

It will be a condition of a finding that it is not impracticable to reinstate the Applicant that he agree to the monitoring of his usage of alcohol over a period of twelve months. It would be expected that such monitoring be of the same standard and nature as that required of a “Special Category Driver” or by the Rail Safety Act 1993 (NSW).

In the circumstances, I propose to find that it is not impracticable to re-instate Captain Garside provided he gives a written consent to the respondent that he will satisfactorily attend a recognised education and counselling program on alcohol and drug addiction nominated by his Chief Pilot.

In addition, he is to sign a written consent addressed to the respondent that if required by his Chief Pilot he consents to the random monitoring of his drug and alcohol intake upon reporting for any period of duty or during such duty. His agreement is to include consent to breath analysis and to a supply of blood or urine samples if required. I propose that the monitoring program is to last for 12 months from the date of signing of the consent. The standard that he is required to meet is that of the “Special Category of Driver” under the NSW Traffic Laws or the Rail Safety Act 1993.

The form of orders will be set out in a preliminary form. There will then be allowed a period of ten days for the applicant and respondent to consider the implementation of the orders.

I will arrange to list the matter before me in the event that either counsel wish to put forward any practical difficulties during the period of ten days. For example, if there can be an agreement between the parties as to the rehabilitation program and the form of monitoring, then that can be incorporated into my orders. In the absence of agreement, the applicant may sign a general consent as I have outlined and serve it on his Chief Pilot and file it in court.

Another issue arises as to whether is impracticable to reinstate Captain Garside in the position he held as “Check and Training Captain” with the company. During the course of the hearing, I expressed my reservations that there would be difficulty in reinstating Captain Garside, based on his own admissions, to that position. He also held the position of “Specialist SAAB Type 340” and that of a Captain. I draw a distinction between the checking and training role and that of “Type Specialist SAAB 340”, because in my view, it contemplates a leadership role. I consider that Captain Garside, whilst off duty, failed to exhibit the leadership that is required of a person who holds that position with the company. Counsel for the respondent and for the applicant submitted to me that if I used Section 170EE(a)(ii) and reappointed him to another position, that is a position as a “Captain-Pilot” and “Type Specialist SAAB 340”, the provisions of the legislation were such that the company would still be obliged to pay him the salary which he was receiving prior to his termination. This is so because of the use of the words: “on terms and conditions no less favourable than those on which the employee was employed immediately before the termination” are included in the legislation. In my view, if I decide that it is impracticable to appoint him as the “Checking and Training Officer”, then that could lead to an inequitable result in so far as the respondent is concerned.

In the circumstances, I propose to deal separately with the question of the impracticality of Captain Garside being re-appointed as “Checking and Training Officer”. In my view, this position requires the consent of the Civil Aviation Safety Authority. I note that the recommendation was that he be counselled and this has happened. At the time of the report that Mr Comerford prepared, he was aware that the employment of Captain Garside had been terminated and therefore the question of Captain Garside remaining the “Checking and Training Officer” was not relevant In the circumstances, I consider that the applicant should have a period of ten days to approach the Civil Aviation Safety Authority to ascertain whether it has any objection to his re-appointment as a “Checking and Training Officer”. If the applicant needs more time, or the authority needs more time, then I propose that he be re-instated as a “Captain-Pilot” or “Type Specialist SAAB 340”, and this issue of a “Checking and Training Officer” be reserved. However, it would seem to me to be more appropriate if this matter could be resolved within the ten day period.

COMPENSATION

Ordinarily an order for the payment of remuneration lost by the employer commences from the date of termination. I propose to vary the usual order so that the payment of lost remuneration will start from 13 October 1995.In my view, the remuneration lost should be paid only from the date of the report of Mr Comerford. The period between 15 September 1995 and that 13 October 1995 will be counted as unpaid leave although classified as service of the applicant with the respondent for all other purposes.

Should Captain Garside determine that he does not wish to sign the agreement, then the matter will be relisted on a date convenient to the parties to provide assistance to the Court on the question of compensation, if any, payable in such circumstances. The applicant is to disclose to the respondent all income earned (excluding social security payments) from 13 October 1995 to 9 April 1997 within 7 days. The employer is to pay only the difference between the remuneration which he lost, less any paid employment during the period. The applicant is entitled to have taken into account in calculation of his lost remuneration any expenses incurred in maintaining his license to fly.

The findings I propose are:

The company did not have a valid reason for the termination of the applicant.

The respondent contravened Section 170DC of the Act.

Subject to a written agreement being given to the respondent, within 7 days of today, by the applicant to the monitoring of his drug and alcohol usage for a period of one year and to satisfactorily attend a recognised educational and counselling program on Alcohol and Drug addiction nominated by his chief Pilot, it is not impractical to reinstate the applicant to the positions of “Captain-Pilot” and “Type Specialist SAAB 340” in which he was employed before his termination.

The respondent to re-instate the applicant to the position in which he was employed immediately before the termination being that of “Captain-Pilot” and “Type Specialist SAAB 340”.

The respondent to reinstate the applicant in those positions on the same terms and conditions as applied to the applicant at the date of termination and that such period commence from the date of termination.

The period between the date of termination and the date of this decision be treated as continuous employment of the applicant by the respondent for all purposes.

The respondent to pay to the applicant the remuneration lost by the employee because of the termination from 13 October 1995 to 9 April 1996 within twenty one days of the date of receiving the signed agreement from the applicant.

The applicant has a period of Seven days to produce evidence to the court of the concurrence of the Civil Aviation Safety Authority to his re-instatement as Check and Training Captain.

In the event that the parties are unable to agree on the amount to be paid or other proposed orders by 4 pm on 16 April 1997, they have liberty to apply to the court to relist the matter.

In the circumstances, I am directing counsel for the applicant to bring forward for consideration by the court, draft orders in accordance with the indication which I have given in this judgment. Those orders should be filed with the court by 4.00 pm 18 April 1997. It will be preferable if they can be agreed with counsel for the respondent, if they cannot be agreed then I shall provide a time commencing in the week beginning 21 April 1997 to hear the matter and finalise the orders in this matter.

Upon completion of the orders I propose to refer this judgment to the relevant authorities for consideration of the recommendations which have been made regarding the need for further legislation.

The applicant is to provide the respondent with details of his income from paid employment and expenditure on maintaining his licence to fly within 7 days to enable the calculation of “lost remuneration”.

I certify that this and the preceding 102 pages are a true copy of the reasons for decision of Judicial Registrar McIlwaine.

Associate:
Date: 9 April 1997

APPEARANCES

Counsel appearing for the applicant: Mr M Sweeney SC

Solicitors for the applicant: Glover & Glover

Counsel appearing for the respondent: Mr R Goot

Solicitors for the respondent: Minter Ellison

Garside	McGeehan	Kinnell	Shout	Time
Soden’s	1 Schooner	1 Schooner	1 Schooner	Kinnell	8.45
1 Schooner	1 Schooner	1 Schooner	Garside	commenced
1 Schooner	1 Schooner`	1 Schooner	McGeehan
Terminus	1 Schooner	1 Schooner	1 Schooner	Kinnell	9.45
1 Schooner	1 Schooner	1 Schooner	Garside	commenced
1 Schooner	no drink	orange juice	McGeehan

Counsel appearing for the applicant:	Mr M Sweeney SC
Solicitors for the applicant:	Glover & Glover
Counsel appearing for the respondent:	Mr R Goot
Solicitors for the respondent:	Minter Ellison

[1997] IRCA 119

09 April 1997