Kieran Woodgate v Queensland Rail Transit Authority T/A Queensland Rail - [2024] FWC 3165

[2024] FWC 3165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Kieran Woodgate
v

Queensland Rail Transit Authority T/A Queensland Rail

(U2024/5757)

COMMISSIONER SIMPSON

BRISBANE, 18 NOVEMBER 2024

Application for an unfair dismissal remedy – merits - positive drug test – failure to comply with drug and alcohol policy – valid reason for dismissal – subjective assessment of employee’s impairment irrelevant – circumstances distinguished from Purves v Queensland Rail – insufficient material to establish differential treatment – dismissal not harsh, unjust or unreasonable - application dismissed.

On 21 May 2024, Mr Kieran Woodgate (the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with Queensland Rail Transit Authority T/A Queensland Rail (the Respondent / QR).

On 17 July 2024, I issued a Notice of Listing and Directions to the parties regarding the matter and a hearing was held on 12 September 2024.

The Applicant was represented by Mr Lucas Kennedy and Mr Chris Vicars of the Australian Rail Tram and Bus Industry Union, Queensland Branch (RTBU). Mr Sebastian Harris and Ms Upashna Pala of the Respondent appeared for the Respondent.

The Applicant relied on his own witness statement. The Respondent relied on witness statements of:
·Darren Flynn,[1] General Manager Network Maintenance SEQ, QR
·Emma Grigore, Senior Manager, Health Safety and Wellbeing, QR
·Alan Jones,[2] Senior Manager Safe Working and Incident Response, QR
·Kristy Jordan,[3] Principal Consultant Ethics and Integrity – Team Leader, QR
·Elizabeth Marsh, Acting Senior Manager Rail Safety and Accreditation, QR
·Breeanna Byrnes, Collector, Fit4Duty
·Scott Osborne, Group General Manager, Fit4Duty.

The statements of the Applicant[4] in his own case, and Breeanna Byrnes,[5] Scott Osborne[6] and Emma Grigore[7] and Elizabeth Marsh[8] in the Respondent’s case were entered into evidence uncontested as these witnesses were not required for cross examination.

Background and Evidence

The Applicant was employed with the Respondent between 2008 and 2024, a period of 16 years service.

The Applicant said that he left school at 16 and began working for the Respondent as a Facilities Maintainer before gaining qualifications and becoming a Protection Officer.

Mr Flynn for Queensland Rail gave evidence that its safety vision within its safety strategy is that Safety Comes First. He provided with his evidence a copy of the ‘Our Safety Policy’ and said safety is the number one priority across all of Queensland Rail and certainly for Queensland Rail’s SEQ Network Maintenance business, for which he is responsible.

Mr Flynn said in addition to Queensland Rail’s policy framework, he is also acutely aware of the obligations arising under the Rail Safety National Law (Queensland), Rail Safety National Law (Queensland) Act 2017 and Work Health and Safety Act 2011 obligations, which underpin Queensland Rail’s established safety and environment management system.

He said the legislative obligations arising out of these Acts include his responsibility as the General Manager to ensure safety is actively promoted and enforced. He said the Rail Safety National Law (Queensland) requires Queensland Rail as a rail transport operator to have a safety management system that must include a drug and alcohol management program, and the Rail Safety National Law creates an obligation on Queensland Rail to ensure, so far as is reasonably practicable, that persons conducting rail safety work are not affected by alcohol or drugs.

Mr Flynn gave evidence that Queensland Rail manages this obligation by its established drug and alcohol management program, and this program is underpinned by Queensland Rail’s drug and alcohol (AOD) policy which details that all Queensland Rail workers must be under the prescribed limit for other drugs when signing on for work, in the workplace or rostered on duty. He said this is a fundamental safety requirement and is reflected in the Queensland Rail Code of Conduct.

Mr Flynn said he has a key accountability to ensure the implementation of and compliance with this Alcohol and Other Drugs Standard, in particular, that workers must not be above the prescribed limit for other drugs when signing on for work. He said his accountability in this regard is necessitated by the inherently dangerous rail industry environment. Mr Flynn said he takes this extremely seriously, as not only is it a policy requirement, but it is through his years in this industry that he has galvanised a personal commitment to safety, in particular, understanding that when safety standards are not met, catastrophic consequences can and do result, such as the collision of rolling stock with people and or plant, which is a risk faced daily.

Mr Flynn said he was involved in the investigation, evidence gathering and aftermath of a double fatality with Queensland Rail at Mindee and has managed several near misses where rail plant and equipment has been struck by rolling stock, and said that even when no injury has occurred, the impact of a near miss on workers is still quite stressing.

Mr Flynn said a critical part of mitigating this inherently dangerous environment is the central role of the Protection Officer, Mr Woodgate’s former role, in managing track safety. He said a Protection Officer’s primary purpose is to provide track protection for other rail safety workers (and themselves) to safely access the rail corridor and danger zone by strictly following track safety procedures and applicable safety policies at all times. Trains striking people at work on tracks can kill, and has killed, people – including Queensland Rail employees. Mr Flynn said it is one of, if not the highest, safety risks at Queensland Rail and that it is this work which is most likely to kill workers.

Mr Flynn said he will not accept workers bypassing controls to reduce risks, and said he is aware of other instances where employees have lost their lives in the Danger Zone from not following safe working procedures correctly. The Protection Officer role being performed correctly is crucial to preventing occurrences such as these, including being fit for duty without the presence of drugs or alcohol within an employee’s system in accordance with Queensland Rail’s AOD requirements.

Mr Jones said he had worked for Queensland Rail for 15 years and that as the Senior Manager Safe Working and Incident Response, he has approximately 120 total employees that provide safeworking services to Queensland Rail across the South East Queensland Network.

Mr Jones gave evidence that sadly Queensland Rail, including in his time, has experienced a number of incidents over the years which have resulted in the death of its workers, including a death of an employee performing the role of Protection Officer, the exact role that Mr Woodgate fulfilled.

Mr Jones said it is therefore critical that he, along with his team, maintain robust safety management processes. This is the journey he said they have been on to imbed Queensland Rail's unrelenting commitment to safety. He said this journey, particularly in the context of Protection Officers, has been necessitated not only due to the safety critical risks associated with the rail industry, but Queensland Rail's regrettable experience with a Protection Officer fatally killed in the Danger Zone in 2017, known as the 'Petrie Incident'. The investigation findings identified that the cause of the incident was the Protection Officer did not follow established procedures relating to Personal Continual Vigilance (PCV), ultimately being fatally struck by a train.

Mr Jones said Mr Woodgate's conduct on the day is considered high risk. The risk of collision between rolling stock and person is considered one of the highest-level risks on any rail network, including Queensland Rail. There are safety procedures and processes put in place to ensure all reasonable safety measures are taken. Any negligence or mishap can have serious consequences such as near misses and unfortunately death.

Mr Jones said employees working in a Protection Officer role, which was Mr Woodgate's role, are rail safety workers as they are an individual involved in rail safety work, namely, Mr Woodgate's Protection Officer role:

a.performed work on or about rail infrastructure or associated works or equipment that places, or may place, the person performing the work at risk of exposure to moving rolling stock
b.carried out activities capable of controlling or affecting the movement of rolling stock; and
c.received and relayed communications capable of controlling or affecting the movement of rolling stock.

Mr Jones said Mr Woodgate’s role as a Protection Officer plays a critical role as part of Queensland Rail's Safety and Environment Management System, specifically in planning and supervising worksites in the Rail Corridor ('Danger Zone'). To prevent catastrophic collisions involving workers, Queensland Rail customers and rolling stock, no one can enter the Rail Corridor and Danger Zone without Protection Officer qualifications or supervision, with the Protection Officer's primary duty and responsibility to manage the rail safety component of a worksite/s.

Mr Jones said this responsibility was enshrined in Mr Woodgate's Protection Officer Position Description, which provides:

"To provide protection of the interface between the rail corridor operations and adjoining trackside activities which have the potential to impact upon them in accordance with Queensland Rail's Safety Management System and Safeworking procedures;” and

"Comply with Queensland Rail's Code of Conduct; Observe all legal and safety obligations of the organisation”.

Mr Jones said in his witness statement Mr Woodgate completed critical tasks daily in his role as a Protection Officer, including having to:

“…
a. Investigate the location of the worksite considering geography, access, communication needs, scope of work, time frames and track availability. This is done in the planning phase and pre work discussions with workgroup supervisor to fully understand the works (e.g. What type of work (e.g. assessment of construction work in the area and/or train movements) ?; Where and when is the works being undertaken? Will the work break or obstruct track? Will there be rail traffic movements associated with the works? What are the site communication protocols?) If this isn't actioned correctly, there could be delays for the workgroup or Network Control Officer, or potentially incorrect or insufficient protection put in place for the type of work leaving workers exposed to rail traffic movements or other rail safety incidents.

b. Complete a Detailed Work Plan - this entails marking up a train diagram identifying significant SafeWorking controls related to the SafeWorking Authority being implemented in accordance with MD-18-352 Detailed Work Plan for Worksite Protection. This includes completing an SW01 and marking up relevant maps with the information provided to cross check information and ensure sufficient protection is planned. If this isn't actioned correctly, it could result in missing key information in regards to protection (e.g. set of points not secured away from the worksite) and incorrect/insufficient protection in place (leaving workers exposed to rail traffic movements).

c. Identify the Safe Place/s - this involves liaising with supervisor to verify that the worksite location on the Detailed Work Plan (worksite diagram) and the actual location of work is the same and identify the Safe Place where workers will need to access when protection is suspended or released. If this isn't actioned correctly it could lead to incorrect implementation of protection for a worksite in the wrong location, workers crossing live track to access a safe place or remaining in a location that is not a safe place when rail traffic traverses the section.

d. Brief workers about the rail safety component of worksite protection prior to workers commencing work in the Danger Zone. This briefing is completed utilising the relevant authority and information contained on the Detailed Work Plan. This involves briefing all workers on information gathered above to ensure all protection arrangements are understood. If this isn't actioned correctly it could lead to workers accessing live track prior to protection being in place (Thorneside) or accessing the incorrect track and being exposed to rail traffic movements.

e. Contact Network Control or delegate prior to entering the Rail Corridor (Danger Zone) - contact must be made with the relevant Network Control Officer to implement a SafeWorking Authority. This involved confirmation of location and verification of safeworking details to ensure the safeworking Authority is implemented in accordance with the Protection Officer request. This involves relaying all the relevant information to Network Control, conducting the Assurance of Location process and implementing relevant protection measures. If this is actioned incorrectly could lead to incorrect/insufficient protection in place, or protection being put in the incorrect location leaving workers exposed to rail traffic movements.

…”

Mr Jones said all these tasks have a direct impact on the safety of rail services and the principal task of ensuring the prevention of rail traffic collisions (i.e. interaction with people, plant and other rail traffic). Any failure by Mr Woodgate to complete these tasks to the Queensland Rail standards could have the potential to result in the collision of rolling stock with other workers, passenger services or plant, resulting in injury and/or fatality/s to Queensland Rail employees and/or the public. Given the safety critical nature of Mr Woodgate's role, his compliance with Queensland Rail's safety and AOD policies and directions was essential to ensuring the safety of himself, other workers and the public.

Mr Jones said Mr Woodgate was a trained and experienced Protection Officer, and Mr Woodgate was employed as a Protection Officer at the time of the catastrophic Petrie incident involving the fatality of a Protection Officer, so was a part of the team at the time of the tragic incident and subsequently a part of the team on Queensland Rail’s subsequent endeavours to improve vigilance around the performance of Protection Officer duties, which has included continual refresher training and learnings from the tragic incident.

Mr Jones said this is evidenced by the extensive training and refresher training Mr Woodgate had actively participated and completed, and included qualifications in:

a.Safely Access the Rail Corridor
This course provided Mr Woodgate with the skills and knowledge he required to be able to safely access Queensland Rail's Rail Corridor. The course explains how workers can maintain their safety while working in the Rail Corridor, the policies and procedures relating to accessing the corridor and how to perform risk assessments around identify issues, risks, hazard and equipment that workers may come across while working in this environment.

b.Lookout Working
This course provided Mr Woodgate with the skills and knowledge required to perform lookout duties on the Queensland Rail Network in accordance with enterprise, legislative and regulatory requirements. The course explains the roles and responsibilities of a Lookout including communicating with the workgroup, other Lookouts, supervisors and the Protection Officer, maintaining minimum sight distance, acknowledging the approach of rail traffic and stopping rail traffic in an emergency.

c.Infield Protection
This course provided Mr Woodgate with the skills and knowledge required to identify, place and remove infield protection on the Queensland Rail Network in accordance with enterprise, legislative and regulatory requirements. The course covers the types of infield protection equipment, placement, appearance, colour, orientation and types of signs and hazards associated with placing and removing infield protection

d.Protection Officer 1, 2 (QNRP, TOA, TWA)
This course provided Mr Woodgate with the skills and knowledge required to plan and manage the rail safety component of a worksite/s in the Rail Corridor. The course explains the roles and responsibilities of a Protection Officer including planning worksite protection, methods of protection, developing a detailed work plan, implementing and fulfilling Track Authorities.

Mr Jones said training also extended to wider industry incidents, to highlight the safety criticality of the Protection Officer tasks and duties, and also Non-Technical Skills training covering a broad range of non-technical skill topics including:
1.Threat and Error Management
2.Communication
3.Leadership and Teamwork
4.Workload Management
5.Situational Awareness
6.Decision Making.
Mr Jones said consistent with Queensland Rail's commitment to safety, they take the topic of Alcohol and other Drugs extremely seriously including the expressly and regularly communicated requirement that everyone should be fit for duty and not present to duty with the presence of alcohol or other drugs in their system above the prescribed limits.

He said this requirement is set out in the Alcohol and Other Drugs Standard and Mr Woodgate was trained in these requirements and attended and completed the following All Aboard Refresher trainings including AOD requirements and Code of Conduct requirements.

Mr Jones said for Alcohol and Other Drugs (AOD) Management, since 2018 the AOD training has been incorporated in initial All Aboard training that all employees are required to complete and in an annual All Aboard refresher training. He said this ensures that employees understand Queensland Rail's AOD policy and the importance of complying with it. Mr Jones said Mr Woodgate regularly participated in such training and noted in Mr Woodgate’s learning history with All Aboard Annual Refresher training (including Alcohol and Other Drugs and Code of Conduct) on these dates:

10.03.2016
8.03.2017
30.01.2018
20.03.2019
12.03.2020
17.03.2021

vii.21.02.2022 and 21.02.2023.

Mr Jones said Mr Woodgate successfully attended and completed Toolbox Talks on Alcohol and Other Drugs. Most recently a toolbox talk Alcohol and Other Drugs was conducted and signed off by Mr Woodgate on 25 January 2024.

Mr Jones said Mr Woodgate was trained and competent in the requirements of his role as a Protection Officer and in the relevant Alcohol and Other Drugs Standard and Code of Conduct policies. Mr Woodgate was provided training in the Queensland Rail Alcohol and Other Drugs requirements of employees to ensure they do not attend work with the presence of alcohol or other drugs above the prescribed limits. He was also provided training on the specific support mechanisms available to him should he have concerns about potential substance abuse.

This included the toolbox talk he participated in in January 2024, which stated:

"Self-Referral
If a Queensland Rail employee feels they have a dependency of alcohol and/or other drugs, they can self-refer at any point in time. The self-referral process is just one component of an integrated approach that incorporates policy, treatment and prevention elements. HR Central 892 1000 or 1800 11 5000 can be contacted for more information."

Mr Jones said after reviewing Queensland Rail's system, it revealed that Mr Woodgate did not contact HR Central and made no attempts to report his regular drug use.

Ms Grigore gave evidence concerning the Respondent’s legal requirements to eliminate and manage safety risks as far as reasonably practicable, and the Respondent’s Code of Conduct. Ms Grigore also gave evidence concerning the Respondent’s Alcohol and Other Drugs Standard and AOD Management Procedure.

Ms Marsh, the Acting Senior Manager of Rail Safety and Accreditation for the Respondent, provided an overview of the Respondent’s legislative obligations in relation to safety, and the role of a Protection Officer, as a Rail Safety Worker. Ms Marsh gave evidence concerning the importance of the Protection Officer role from a safety perspective having been highlighted by significant safety incidents across the industry and gave examples.

Ms Marsh also provided evidence concerning the legislative framework for Alcohol and Drugs and the Respondent’s AOD framework, and testing program.

Protected Industrial Action Investigation – June to September 2023

The Applicant submitted that when he participated in Protected Industrial Action and left the worksite with ‘Safe Working Documentation’ in June 2023, the Respondent pursued the issue and excluded him from work while an investigation was undertaken.

The Applicant’s evidence was that he had taken the documentation home as there was no secure place to store it and he felt it was the safest option to ensure nobody mistakenly entered a danger zone. He continued that the Respondent had attempted to contact him while he was sleeping to seek the return of the documents, and when they could not make contact, contacted his father, also an employee of the Respondent. His father woke him and he arranged to return the documents. The allegations being investigated were that the Applicant had inappropriately removed safe working documentation and that he had refused to return the documentation.

The Applicant alleged that due to this investigation he developed high levels of stress, anxiety and depression from being cut off from his workmates who were his normal safety net and confidantes and was concerned about disclosing these conditions to his doctor or the Respondent for fear of it affecting his career and being further excluded from his role.

The Applicant further alleged that in order to cope with the stress during the investigation period, he experimented with cocaine he had received from a friend in June or July 2023. The Applicant stated that he used cocaine about 5 more times during the investigation.

The Applicant received a written warning as the outcome of the investigation. The Applicant stated that once he returned to work, he was able to cut back his cocaine usage and did not take any again until Christmas 2023.

Mr Jones accepted in his oral evidence that the Applicant lost some penalty payments while he was on alternative duties during this period of time and his income would have been lower.

Mr Woodgate said he took protected industrial action on advice from his Union Delegate and left the worksite, and because he was leaving the worksite unprotected, he took safe working documentation home with him to keep and prevent anybody tempering with them. He said he did this as they were working from an unsecured compound with nowhere to store the safe working documentation securely, and this was the safest option to ensure nobody mistakenly entered a danger zone.

Mr Woodgate said Queensland Rail conducted an investigation into why he took the safe working documentation home, alleging that he inappropriately removed safe working documents associated with Cross River Rail, as well as a second allegation that he refused to return the documentation.

Mr Woodgate said the investigation process and thought of losing his job caused him a lot of stress and anxiety, and quickly led to feelings of depression as he was cut off from his work mates who are his normal safety and people who he confides in. He said he thought about seeking professional help, but in his mind, he did not know how to prove or express his feelings. He said he felt the Respondent would use it against him to prove he was not fit for his role as a Protection Officer and would further exclude him from his role.

Mr Woodgate said in or around June or July 2023, he was out with a friend who happened to have some cocaine with him. Mr Woodgate said as he was stressed and anxious about the investigation and his career was in jeopardy, he was not making the best choices, and this is when he made the unfortunate decision to experiment with cocaine. Mr Woodgate said the cocaine made him feel relaxed and helped him forget about the investigation process.

Mr Woodgate said on multiple occasions between June and September he attempted to contact his Senior Manager, Alan Jones, for an update on the investigation, as he was eager to get back to work. He said unfortunately on some occasions Mr Jones did not take his calls, and when they did speak, there was no information that he would disclose. Mr Woodgate said the uncertainty and extended time frame of the investigation continued to create severe stress and anxiety, and he needed to escape. Mr Woodgate said this led to him using cocaine on at least 5 more occasions during the investigation process as it helped take the edge off and allowed him to relax and forget about life.

Mr Woodgate said in September he received a written warning as a result of the investigation with no further action taken against him and he returned to work as normal and got on with his job. Mr Woodgate said upon returning to work he was able to cut back his cocaine usage and didn’t take any again until around Christmas 2023. He said he was not sure why he decided to take cocaine at this time. He said he was not stressed or anxious but wanted that relaxed feeing that cocaine gave him, and his urges won out and he used cocaine again.

The Dismissal Incident

The Applicant submitted that at about 5:30am on 15 March 2024, upon returning home after completing a late shift at 5:00am, he consumed a couple of alcoholic beverages and some cocaine.

At approximately 8:00pm that night, Mr Woodgate commenced work. Mr Woodgate submitted that he had no concerns about his ability to pass a drug test and did not feel any impairment associated with the use of cocaine.

Mr Woodgate commenced completing safety critical work for the Respondent, tasked with securing ‘In Field Protection’ for an Inner City Scheduled Corridor Access System (SCAS) closure covering major construction works within the rail corridor (‘danger zone’) from Bowen Hills to Roma Street. The work involved placing a ‘red board’ (stop sign) within the Rail Corridor danger zone with Mr Brad Law, another Protection Officer. The Respondent submitted that this resulted in a ‘Safe Work Breach’ and, in doing so, the Applicant placed himself at significant risk.

The infield protection (IFP) is put in place by Protection Officers in accordance with the Detailed Work Plan (DWP) and In Field Protection Check List (IFPCL). An “implementing PO team” is required to attend the locations to secure in the IFP, as was required of the Applicant and Mr Law. The Applicant and Mr Law were required to implement 4 stop signs at Bowen Hills.

Mr Jones said on Saturday 16 March 2024, Mr Woodgate was tasked with securing infield track protection for an Inner City SCAS closure covering major construction works within the rail corridor ('danger zone') from Bowen Hills to Roma Street.

Mr Jones said as part of the coordinated protection activity, infield protection is required to protect authority limits, and provides a warning to rail traffic crew operating trains to mitigate the risk of trains entering the zones of track in which other employees and contractors were completing construction works.

The infield protection is put in place by Protection Officers in accordance with the Detailed Work Plan (DWP) and In Field Protection Check List (IFPCL). An 'implementing PO team" is required to attend the locations to secure in the infield protection, as was required of Mr Woodgate on 16 March 2024. Mr Woodgate was one of two POs required to implement 4 stop signs at Bowen Hills.

Mr Jones said on 16 March 2024 Mr Woodgate and Mr Brad Law were briefed and provided documentation detailing the instructions about the location of the infield protection they would be responsible for implementing. Mr Woodgate, along with Mr Brad Law, were given a copy of the DWP, IFPCL and a Train Notice (details of the closure and safe working requirement) advising the location they were required to install the infield protection.

Mr Jones said Mr Noah Hala, as the Superintendent, was advised by Mr Woodgate that he had placed the stop sign in the incorrect location (as otherwise detailed on the DWP), resulting in the stop sign being placed 120m beyond the LPA. Mr Woodgate was not aware that he had put the Stop sign incorrectly, he was only made aware once notification from the Network Control Officer was received.

Mr Jones said at approximately 03:44 hours, the train driver of train A9LO at Bowen Hills reported to Train Control that the IFP was placed on the approach side of Signal ME10 at Bowen Hills. He said the Network Control Officer subsequently called the Protection Officer In Charge (POIC) Ben Willson to alert that a train had stopped attempting to turn back at Bowen Hills as a result of the stop sign placed on the approach side of ME10.

The POIC arranged for the PO assistant Noah Hala to assess and relocate the IFP to the correct location. The PO assistant, Noah Hala (rostered as the PO Assist on the night but whose substantive position is Superintendent) identified that 3 Stop signs and RTS (Rail Traffic Signal) were placed at and adjacent to the ME19 signal on the Down Main, Up Main and Down Suburban lines at Bowen Hills instead of 2 Stop Signs and RTS located at and adjacent to ME10 signal.

The stop sign placed by Mr Woodgate on the Up Main line adjacent to ME19 was on an open track, approximately 120 metres beyond the LPA limit. This meant that Mr Woodgate was walking on 'live' track. If a train had been operating, it could have struck Mr Woodgate and killed him. Mr Jones considered this a very serious breach and the type of error that results in fatalities as Queensland Rail and other rail industry participants have experienced.

At approximately 5:43am Mr Woodgate undertook the testing, declaring medication to the testing provider prior to the testing but did not self-declare cocaine use. He failed that test, producing a not negative result for cocaine.

At approximately 6:04am, a second test was performed which was negative for cocaine. The Applicant was then driven home by his boss. Mr Woodgate said after tests Mr Hala drove him home and he didn’t hear anything from the Respondent until the following Monday when he received an email with a letter of exclusion. He said later in the week he received an email directing him to attend an investigation meeting.

Mr Flynn said on 16 March 2024, after being notified of the Safe Working Breach involving Mr Woodgate, he first confirmed that there was no injury with the workers or damage to assets, that they had removed the person/s from conducting any further immediate rail safety work, and that network control had been advised and AOD testing was being conducted and appropriate leadership representatives were on site. Mr Flynn stated Safe Working Breaches of this type do occur from time to time in all railways and that Queensland Rail is no different, however, he noted in the case of this breach that the track protection was placed in the wrong location on live tracks where Mr Woodgate himself was at risk of being struck by a train.

Mr Flynn said the breach was identified by a train driver who was travelling on the rail, spotted the board, came to a stop and alerted network control.

Mr Flynn made contact with Alan Jones, Senior Manager Safe Working and Incident Response, who confirmed that they had started the investigation process and involved the relevant representatives from Safety Risk and Assurance.

Mr Flynn said once Mr Woodgate’s non-negative for cocaine was notified to him following the post-incident drug and alcohol tests, he said he ensured they had stood Mr Woodgate down from active duty in line with the AOD policy.

He said he was informed that HR Central would be notified and an investigation would then commence into the not negative cocaine result. He said from there the non-negative test result matter was assigned to Ethics and Investigations to conduct an investigation.

Mr Flynn said in his capacity as General Manager Network Maintenance SEQ, he is the usual decision maker in relation to what discipline (if any) is taken. He said he was the relevant decision maker in relation to Mr Woodgate and that he informed the Executive General Manager (EGM) of his decision to show cause because the EGM (at the time of this process) had to sign off on the actual dismissal, hence he would not proceed if the EGM did not concur with his decision.

Ms Marsh gave evidence that network rule or procedure breaches are Notifiable Occurrences and must be reported to the Office of the National Rail Safety Regulator (ONRSR) in accordance with Section 121 of the Rail Safety National Law (Queensland). Ms Marsh said as both Mr Woodgate and the other PO were on live track while placing the stop sign in the incorrect location, this incident was reported to ONRSR as a Category A Notifiable Occurrence – Network Rule or Procedure Breach. This was because the POs being on live track to place the board resulted in an immediate or direct threat to the safety of the POs, namely, the threat of trains colliding with them. Ms Marsh said Category A Occurrences typically have higher potential for serious safety consequences and must be notified to ONRSR immediately.

Ms Byrnes gave evidence that she is employed as a collector by Fit4Duty, who provide alcohol and other drug testing services to the Respondent. Ms Brynes provided evidence concerning the conduct of Mr Woodgate’s test on 16 March 2024. Ms Byrnes said she asked Mr Woodgate if there were any medications that he would like to declare and he declared Endep taken on 15 March 2024. Ms Brynes said the drug screen showed a ‘lab referral required’ result for cocaine.

Mr Osborne, Group General Manager for Fit4Duty, also gave uncontested evidence for the Respondent concerning the transition from two panel testing devices to five panel testing devices to align with the AS4760:2006 Standard and preparatory for the release of the new oral fluid testing Standard, and testing processes for Oral Fluid and information specific to the testing of Mr Woodgate on 16 March 2024. Mr Osborne said on 19 March 2024, Mr Woodgate’s laboratory analysis reported confirmation of the presence of cocaine and its metabolite, Benzoylecgonine.

The Drug Test Investigation and Show Cause Process

On 18 March 2024, the Applicant was issued with a Letter of Exclusion pending an investigation. The results from the lab testing of the samples were returned, producing a result of cocaine at 46 ng/ml.

Ms Kristy Jordan, the Respondent’s Principal Consultant Ethics and Integrity – Team Leader, who was employed in the position of Senior Employee Relations Advisor as at 18 March 2024, said Mr Woodgate’s matter was assigned to her from HR Central in relation to returning a non-negative result for cocaine during a Post Incident Alcohol and Other Drugs test.

Ms Jordan said on 19 March 2024 she received notification from Fitness for Work that the laboratory test had confirmed a positive result for cocaine.

On 20 March 2024, the Applicant received an email directing him to attend an investigation meeting with Ms Kristy Jordan on 22 March 2024. Ms Jordan said Mr Woodgate was sent a Notice to Attend Letter with a copy of information for interviewees who have received a notification to attend information gathering; a copy of the Discipline Process; a copy of extracts of relevant QR policy which the behaviour had the potential to breach; a copy of the position description; and a copy of the Laboratory Results.

Ms Jordan said that on 22 March 2024 Mr Woodgate attended an Information Gathering meeting with herself and Mr Hala to provide a response to the alleged conduct. Ms Jordan said Mr Lucas Kennedy from the RTBU attended the Information Gathering meeting as Mr Woodgate’s support person. Ms Jordan said during the meeting Mr Woodgate advised that he agreed with the allegation, explaining that he had taken cocaine.

Ms Jordan said on 25 March 2024, she reviewed Mr Woodgate’s training history which showed he had completed the All Aboard Refresher training which included Alcohol and other Drugs Management on 20 March 2019 and an AOD toolbox talk on 24 January 2013.

During the meeting he did a return-to-work drug test and passed. The Applicant was required to remain excluded from the workplace. Mr Woodgate said during the investigation meeting he was truthful with the interviewer and admitted to drug use. He said he was told at the end of the interview that he was required to remain excluded.

Mr Woodgate said that whilst he was excluded from working awaiting further instructions from the Respondent, he attended a Drug Rehabilitation programme he found online. He said he found the Rehab programme to be of limited use, as he wasn’t a frequent user of cocaine, but more an intermittent user if he wasn’t feeling 100% or felt like he needed to escape from the stress of life. He said nonetheless the process was of some use, and he is proud to say that he has not used cocaine since.

Mr Jones said as the event is classified as a safeworking breach, the Network Shift Asset Manager (NSAM) subsequently arranged for AOD testing to be conducted on Mr Woodgate and Mr Brad Law in accordance with the Post Incident Alcohol and Other Drugs testing Procedure. The matter was also referred for a Safety Investigation. Mr Jones attached the Safety Investigation to his statement and he said it reflects how serious an incident this was at Queensland Rail.

Mr Jones said following the safe working incident his team were advised that the Network Control Officer had contacted Fit4Duty to arrange for a post incident test in accordance with Post Incident Alcohol and Other Drugs testing Procedure for Mr Woodgate and Mr Brad Law.

Mr Jones said Mr Brad Law returned a negative AOD result, however from a safeworking duties perspective, given Brad Law was involved in a safeworking breach, he was temporarily relieved from performing safeworking duties until assurance activities could be confirmed.

Mr Jones said Mr Woodgate returned a not negative drug test for cocaine as part of the post incident test and was subsequently excluded from the workplace whilst an information gathering exercise was commenced in accordance with the Queensland Rail policy regarding his not negative cocaine test result.

The Applicant contended that he was open, honest and cooperative through the investigation. Throughout the investigation, the Applicant said he participated in a drug rehabilitation program that he enrolled in himself, though he submitted that it was of little assistance as it was geared towards heavy drug users. The Applicant submitted that he has remained drug free since the incident.

On 26 March 2024, Ms Jordan prepared the investigation report. The report included details of the allegation, the process undertaken to establish facts in relation to the alleged conduct, information about the relevant company policies which the behaviour had the potential to breach, and analysis of the evidence and her findings. Ms Jordan said she also drafted a Communication of Findings letter that would be sent to Mr Woodgate with a copy of the Report for his response.

On 2 April 2024, the Communication of Findings letter was sent to Mr Woodgate with the Report requesting a response by 4:00pm on 5 April 2024.

Ms Jordan said on 4 April 2024, Mr Bellamy, the Acting Senior Manager Safeworking Incident and Response, forwarded her by email the written response of Mr Woodgate. Ms Jordan said on 5 April 2024 she provided Mr Bellamy a Risk Based Outcome Advice for the business to consider.

Mr Flynn said on or around 7 April 2024, he received a copy of the completed Workplace Investigation Report. Mr Jones confirmed he was not present for the conversation between Mr Woodgate and he was not present for the conversation between Mr Noah Hala and Mr Woodgate which Mr Jones refers to at paragraph 40 of his witness statement. Mr Jones was asked if he had ever asked Lead Investigator Mr Michael Poke if Mr Woodgate had ever been interviewed over the safety breach and he said he had not.

Mr Jones was asked whether he ever spoke directly to Mr Woodgate about the incident. Mr Jones said they spoke on numerous occasions but more so about the process of the investigation. Mr Jones was asked if Mr Woodgate was ever interviewed by the investigator and he said he imagined he would have had the opportunity to make a statement to the investigator.

Mr Jones was asked if he was present for the interview that occurred between Mr Woodgate and Mr Noah Hala, the Superintendent. He said he was not. He accepted that his evidence at paragraph 40 of his statement was premised on what Mr Hala said occurred.

Mr Jones was also asked whether the Lead Investigator Michael Poke, ever interviewed Mr Woodgate. Mr Jones said he hadn’t asked. Mr Jones was asked, to the best of his knowledge, whether Mr Woodgate had been interviewed by the Respondent about the incident. Mr Jones said to the best of his knowledge, yes. He said the Lead Investigator could take a written statement. He did not know specifically if and when Mr Woodgate was interviewed.

Mr Woodgate’s representatives raised an objection to Mr Jones’ evidence at paragraph 14, and paragraphs 36 to 47 relating the investigation based on hearsay.

He said he considered the brief and associated material, including the material within the Workplace Investigation Report. He said based on the information within the Workplace Investigation Report and the information around the allegations against Mr Woodgate, the allegations were substantiated. He said he noted Mr Woodgate’s conduct of Mr Woodgate was a breach of the Alcohol and Other Drugs Standard, a critical safety policy, and the Code of Conduct.

Mr Flynn said he considered this to be very serious, as Mr Woodgate had consumed cocaine on the same day he knew he was rostered to attend work. Mr Flynn said in his mind, this displayed a disregard for Queensland Rail’s policies about safety. Further, that Mr Woodgate was a Protection Officer and acted in this way, made this event, in his mind, very serious.

Mr Flynn said on 9 April 2024 he approved the issuing of a Show Cause notice and advised Kristy Jordan of Ethics and Investigations of this.

On or about 10 April 2024, the investigator provided a recommendation to Mr Alan Jones that the Respondent issue the Applicant a Show Cause letter.

Mr Jones said following the confirmation of Mr Woodgate's not negative post-incident test, Mr Woodgate was excluded from work. He said as he was on leave at the time, the initial investigation process was managed by Noah Hala and Paul Bellamy, in conjunction with Kristy Jordan from Ethics and Investigations.

Mr Jones said on 10 April 2024, after his return and following the completion of the investigation process, he received a recommendation brief outlining that the investigation was concluded, the allegation that Mr Woodgate had breached the Alcohol and Other Drugs Standard and Code of Conduct had been substantiated and seeking his endorsement to issue Mr Woodgate with a letter requesting that he show cause as to why his employment with Queensland Rail should not be terminated.

Mr Jones said he considered the brief and associated material, including the material contained within the investigation report. Having confirmed the investigation had substantiated the allegation against Mr Woodgate, and noting it was a serious breach of the Alcohol and Other Drugs Standard, Mr Jones said he supported the issuing of a Show Cause Notice and signed the show cause recommendation letter on 15 April 2024.

On 24 April 2024, the Applicant was issued a Show Cause letter dated 23 April 2024.

On 29 April 2024, the Applicant submitted a response to the Show Cause letter. In this letter he expressed:

“…
I made this mistake and deeply regret this decision and I am willing to undergo any program available to keep my current employment. And I again deeply apologise for my actions and if this means anything I have not consumed and alcohol or any substance since this event occurred.

My personal life has not been the easiest one lately, for the past 12 months I have been struggling with my mental health and finances. After I was stood down about matters that arose during the course of the protected industrial action period (and after), I was really struggling with the thought I would lose my career, and I was haemorrhaging money after the significant period that I missed out on my normal night working wages and weekend penalties that I survive on.

This stress and pressure were in my belief the reason that I turned to taking cocaine to deal with that stress and significant worry. It was not the right thing to do, but I have a very small assistance network outside my workmates who I was not able to talk to due to the investigation occurring over a period of months. This does not excuse my behaviour, but I feel that it is important to understand why I was doing something that I would and have never done before this period in my life.

I am a good worker and I did not have the safety net that I normally have to help with the burdens of my personal and work life that I normally had, and I am sorry for it all.

I would never attend the workplace under the influence of alcohol and/or drugs that has lead to this mistake being made. Please be advised that I did not believe I may have been impaired at any stage while being present at the workplace.

I would like to take the opportunity to admit the full responsibility for my actions and I would also like to state that if my response is accepted by yourself and Queensland Rail I will continue work safely and abide by Queensland Rail's Code of Conduct and all other applicable policies.

I have already taken steps to enrol in a rehabilitation program to assist in myself with any possible addiction issues I might have. I would also be willing to attend any program required by Queensland Rail and would welcome the opportunity to work in an ambassador role to promote non use of substances to uphold the values and morals of Queensland Rail.

…”

Mr Flynn said on 29 April 2024 he received Mr Woodgate’s email in response to the Show Cause letter. He said he convened a meeting with Alan Jones to discuss and consider Mr Woodgate’s response in weighing up the decision to terminate his employment. He said he then notified the EGM that having reviewed the response, he was recommending a termination. A meeting was held with the EGM who authorised the dismissal.

Mr Jones said on 29 April 2024 he received a response from Mr Woodgate to the Show Cause Letter. He said he, along with Darren Flynn, considered this response in weighing up and considering the discipline decision.

Mr Flynn said in deciding to terminate Mr Woodgate’s employment, and having consideration of the matters raised by Mr Woodgate in his show cause response, and discussing the material with Alan Jones, he considered the following:

a.Mr Woodgate held the position of Protection Officer which is a safety critical role, operating in an inherently dangerous work environment completing safety critical tasks daily to ensure the protection of other Queensland Rail employees, contractors and the public. Mr Woodgate failed to present to work fit for duty, in presenting to duty with the presence of Cocaine & Benzoylecgonine above the prescribed limit.

b.Queensland Rail takes employees presenting for work with drugs or alcohol in their system extremely seriously. The risks associated with Mr Woodgate knowingly presenting for duty with the presence of cocaine in his system could have had catastrophic consequences on Mr Woodgate, other Queensland Rail employees, contractors and the general public. From his experience in the rail industry, he is aware that self-assessment of impairment is not a reliable indicator of actual impairment. That Mr Woodgate did not consider himself to be impaired, was not, in his view based on his experience, a factor to be given much (if any) weight.

c.The obligations on employees contained in the Alcohol and Other Drugs Standard are lawful and reasonable directions and it is essential that leaders can be assured that their employees will comply with those directions. Failure to do so cannot be accepted by Queensland Rail. These policies have been subject to significant consultation with workers, unions and experts over many decades. Based on his experience in rail, these obligations are well known to workers and regularly reinforced by leaders. He said he had absolute confidence Mr Woodgate was aware of his responsibilities in relation to drugs and alcohol.

d.Whilst each case is considered on a case-by-case basis, termination of employment is the consistent outcome in such cases of this conduct, being presenting to duty with a drug (in this case the presence of cocaine) above the prescribed limit, at Queensland Rail. Mr Flynn noted Mr Woodgate took the cocaine on the day of work.

e.Cocaine is an illicit drug and not available through normal retail means, making him question Mr Woodgate’s culture, behaviour and commitments in the context of his safety critical role. Mr Flynn said having reviewed Mr Woodgate’s statement, specifically at paragraph 11 and 12 of his statement, he was not satisfied Mr Woodgate could control his urges and not use cocaine again leading into a work shift. Mr Flynn said he also noted that Mr Woodgate found limited use of a rehabilitation program, which gave Mr Flynn no confidence that Mr Woodgate would not simply succumb to his urges to use cocaine again before a work shift.

f.In weighing the matters raised by Mr Woodgate in his show cause response, he considered the mitigating factors raised by Mr Woodgate and his circumstances. In particular, he said he considered that Mr Woodgate had 15 years’ service with Queensland Rail. Mr Flynn said he considered that, having this length of service with Queensland Rail, Mr Woodgate would know that safety is the number one priority and would know of his obligation to ensure he is fit for duty, including the requirement to attend duty without the presence of drugs such as cocaine in his system and he noted that Mr Woodgate did not deny understanding that this was his responsibility.

g.While he considered Mr Woodgate’s length of service and his admissions, he considered they did not mitigate his conduct given the safety criticality of the Protection Officer role Mr Woodgate fulfilled and the potential risk such breach had on himself, other employees and members of the public was of grave nature. Also relevant was that Mr Woodgate had consumed cocaine in the morning before a rostered night shift. Mr Flynn said he considered this to be a very poor and unsafe decision. But for the safe working breach, Mr Woodgate’s actions would have gone undetected and he had little doubt he would have continued his behaviour until either caught in a AOD screening or potentially another breach. Mr Flynn said he considered this against the length of service.

h.As contained in the briefing material that was supplied to Mr Flynn, he considered Mr Woodgate’s age of 31 and that he was remorseful for the breach. He considered Mr Woodgate successfully completed alcohol and other drugs training.

i.Mr Flynn said he formed the view that his circumstances did not outweigh the seriousness of his conduct.

j.Mr Flynn noted that Mr Woodgate’s alleged financial difficulties he claimed to have experienced during a short period in 2023 would likely be mitigated by the total amount of back pay Mr Woodgate received, in the form of a 5% night shift penalty increase and base wage increase of 11% paid to Mr Woodgate in early 2024, back dated from March 2023 as an outcome of the most recent enterprise agreement negotiations.

k.Whilst Mr Woodgate showed remorse for his breach, he also maintained the belief that he did not “feel impaired’’, which indicated a concerning risk appetite for attending work after consuming cocaine only hours before commencing work.

l.Mr Flynn considered safety to be his and the organisation’s number one priority and essential given the rail industry is inherently dangerous and unfortunately people can get hurt and even lose their lives if safety is not adhered to. Mr Woodgate’s role is designated as a rail safety worker, performing critical safety tasks within the rail corridor every day, the rail corridor being one of the most dangerous areas in the rail industry. Mr Flynn said he also had regard to his obligations under the Work Health and Safety Act, in particular his obligation to maintain and enforce the Alcohol and Other Drugs Standard.

m.Mr Flynn said whilst he considered lesser discipline penalty outcomes, he noted this would be inconsistent with previous matters relating to the same conduct, where termination of employment has been the consistent outcome. He said he also considered the message a lesser penalty would send to the wider workforce, given that termination of employment has been a consistent outcome for such breaches, which he considers has driven a safety culture of employees not turning up to work with drugs in their system. He said he also viewed Mr Woodgate’s conduct as incompatible with his duties as a Protection Officer, and had no confidence or trust in the continuation of his employment.

n.Mr Flynn said he had been involved in a number of disciplinary processes regarding breaches of the Alcohol and Other Drugs Standards that resulted in termination of employment. Some of these have involved Protection Officers or other rail safety workers performing protection duties or working in the Danger Zone. Mr Woodgate’s case demonstrates a serious level of breach equal to many of those cases.

o.In deciding to terminate Mr Woodgate’s employment, he also considered and endorsed the payment of 4 weeks base salary in lieu of notice, forming a view this would further mitigate the impacts of Mr Woodgate’s employment ending with Queensland Rail.

Mr Jones said following a consideration of Mr Woodgate's show cause response, and the findings of the investigation, and meeting with Darren Flynn, he considered Mr Woodgate's circumstances and response did not mitigate the serious breach of the AOD policy to which he admitted. Mr Jones said he also considered previous discipline processes he had been involved in of a similar nature resulted in termination of employment. Mr Jones said whilst he was not the ultimate decision maker, he endorsed the decision for termination and signed the recommendation for termination letter on the 2nd of May 2024.

Mr Alan Jones and Mr Darren Flynn, General Manager Network Maintenance, were responsible for the Applicant’s discipline process. The Respondent submitted that Mr Flynn considered the Applicant’s response and was satisfied that on the balance of probabilities the allegation was substantiated and having considered the Applicant’s responses, considered the appropriate disciplinary action in the circumstances was termination of the Applicant’s employment. In weighing this decision, Mr Flynn had regard to the seriousness of the Applicant’s conduct and the fact the Applicant did not raise any new or extenuating circumstances as to the reasons for the Applicant’s conduct.

On 30 April 2024, Mr Flynn recommended to Ms Sarah Dixon, Executive General Manager SEQ Assets, that the Applicant’s employment be terminated.

Mr Jones said Mr Woodgate's statements at paragraph 8 of his statement causes him great concern, noting Mr Woodgate states he started using cocaine on multiple occasions during this time, whilst still attending work. Mr Jones also said Mr Woodgate states he started using cocaine due to stress, however Mr Jones noted at paragraph 11 of Mr Woodgate’s statement, where he states he was not stressed or anxious, he chose to use cocaine because he wanted the feeling. This again caused him great concern.

Mr Jones said he conversed with Mr Woodgate in regards to his employment being terminated and issued him the termination letter. The Applicant’s employment was terminated by letter which stated:

“…
I have considered the issues raised by you in your written response to the show cause letter and I make the following comments in relation to these matters:

It is acknowledged that you have taken responsibility for your actions and have stated that you have taken steps to enrol in a rehabilitation program.
You have stated your understanding of safety and fitness for work, however by your own admission, you took Cocaine on the day of your shift commencing.
Yours is a safety critical role.

Your response to the show cause letter has been given serious consideration; whilst I note your expression of remorse and appreciate your commitments to improving your behaviour along with the impacts you have detailed, I do not believe that these matters sufficiently mitigate the severity of your substantiated conduct.

In Queensland Rail safety comes first. Always. Working safely is a condition of employment and we all take personal accountability for the safety of customers, ourselves, our colleagues, and the general public. In this case, this means that you are required to present to work fit for duty and under the prescribed limit of alcohol and other drugs.

I also note that you have completed Code of Conduct refresher training on eight occasions which includes training on the Alcohol and Other Drugs expectations. Queensland Rail has also, for the duration of your employment, held strict Alcohol and Other Drugs policies and held the clear expectation that safety is its number one priority. These matters are well communicated to all staff and you knew or ought to have been aware of your obligations.
Having regard to all the circumstances in this matter, I have determined that your employment with Queensland Rail will be terminated, effective 10th May, 2024.
…”

Mr Woodgate said he did not know what else he could have said or done to save his job. He said throughout the entire process he had been truthful and expressed remorse for his actions. He said he made a bad decision which he deeply regretted. He said since his termination he has not reverted back to using cocaine.

Submissions and consideration

Section 387 of the Fair Work Act 2009 (Cth) reads as follows:

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

Valid Reason

The Respondent submitted that the Applicant committed a serious safety breach by entering a live rail track. The Applicant did not self-identify the error, rather it was detected by others. That safety breach has, in similar circumstances, killed workers, including workers of the Respondent. It was very serious. Immediate notification of the incident was required to be made to the independent rail regulator, the ONRSR.

The Applicant referred to the Rail Safety National Laws,[9] which place certain legal obligations and duties on rail workers. Amongst these are the regulation of health and fitness for work and alcohol and other drug management, including limits on permittable presence of alcohol and other drugs measured in workers when they are safely carrying out work. The prescribed limit for the presence of illicit drugs is 0. The Respondent also has their own Alcohol and Other Drugs Management Policy (AOD Policy) which is distinct from the National Laws.

The Applicant submitted that depending on the advice received from Queensland Rail’s human resources department, the Respondent can either return an employee after an assessment with a psychologist, or the employee is required to be managed under the discipline process standards (Performance and Behaviour Standard MD-13-327 and Discipline Process Specification MD-10-52). The Applicant contended that at the conclusion of an investigation, the Respondent is able to exercise a number of disciplinary actions, including:

·Discipline action – performance improvement process
·Warning in writing
·Final warning by written letter
·Dismissal from employment.

The Applicant outlined the Discipline Process Specification MD-10-52 regarding dismissal where it notes that prior to recommending dismissal, the delegate must be sure that:

·The specification has been applied fully and fairly
·The grounds for justifying dismissal are clear
·It can be proven that:
oOn the balance of probabilities that the conduct has occurred; and
oThat there is a sufficient reason for the dismissal

·In cases of unacceptable behaviour or unresolved performance concerns, clear warning was given to the employee that continuation may lead to dismissal
·All documentation required by this specification has been retained and reviewed.

Once dismissal has been recommended, the Applicant must be given an opportunity to Show Cause as to why they should not be dismissed. In this case, the Applicant was provided the opportunity, however the delegate was not satisfied that it was appropriate for the Applicant’s employment to continue.

The Applicant referred to the case of Smith v Bank of Queensland Ltd[2021] FWC 4 at [125]-[126] where then Deputy President Asbury cited then Vice President Hatcher’s decision in Bista v Group Pty Ltd t/a Glad Commercial Cleaning[2016] FWC 3009 to note that an imposed penalty must be proportionate to the gravity of the misconduct and mitigating factors must be considered.

The Respondent noted that Smith is distinguishable to this case as then Deputy President Asbury in that case went on to make a finding that the employee’s lack of training, undue pressure on the employee due to impending holiday leave and factual errors relied on by the employer in relation to the investigation and business process, served as mitigations to the gravity of the conduct and therefore eroded the validity of the reason for dismissal. None of the circumstances in Smith described exist in the present circumstances. The Respondent therefore concluded that there are no circumstances here, either factually or contended by the Applicant, that mitigate the valid reason for dismissal.

The Applicant contended that the mere presence of cocaine in his body does not denote a sound, defensible and well-founded reason for dismissal. Further, it does not follow that simply because the alleged misconduct of obtaining a positive test result occurred, termination of employment was warranted.

The Respondent submitted that the Applicant consumed cocaine on the same day as he was required to present for work. The shift was not unexpected overtime but a rostered shift with prior notice. Therefore, despite having finished work early that morning, he ought to have considered his shift that evening in making the decision to consume cocaine.

The Respondent outlined that the Applicant had been trained in the Respondent’s policies and completed multiple modules relevant to the requirements of the AOD Policy and Code of Conduct. This included Code of Conduct Refresher training (completed 21 February 2023 and annually since 2016) and the All Aboard Annual Refresher which covered refresher training in the AOD Policy requirements on 21 February 2023 (and annually since 2019), with specific additional Alcohol and Other Drugs (AOD) Management training on 20 March 2019 and 24 January 2013 and a targeted AOD toolbox talk as recently as January 2024.

Further, the Applicant’s own evidence in the investigation was that he was aware of the requirements under the AOD Policy, including the Applicant’s understanding of his requirement in creating and maintaining a safe work environment for those around the Applicant.

The Respondent referred to the case of Singh v Sydney Trains[2019] FWC 182 where it was found that in the context of rail operations, it has been accepted that a breach of a critical safety policy serves as a valid reason for dismissal. Deputy President Sams explained:

“[327] In my view, the conduct in question need not necessarily be wilful, deliberate or reckless to constitute a valid reason for dismissal. Conduct which is negligent, accidental, inadvertent or careless, particularly in the rail industry, can have disastrous, life-threatening consequences. Adherence to safe working policies and practices, particularly where persons are specifically trained to be aware of ever present dangers, is a cardinal principle for any workplace, but even more so in the rail industry where the risk to the safety of employees and the public is obviously so much more acute. It involves fast moving trains and potentially dangerous infrastructure. Employees are commonly working in high risk track environments as a daily feature of the working environment. Such conduct need not be repeated behaviour, but may involve a single instance of conduct which threatens the safety of employees or others...”.

The Respondent also referred to their specific operations, where it has been found that a breach of the Respondent’s AOD Policy served as a valid reason for dismissal. In Purves v Queensland Rail [2022] FWC 3343, where I considered a breach of the exact same AOD Policy here, in the form of a positive alcohol result from a rail safety worker whilst on duty, I explained:

“[135] I accept the Respondent’s submission that considering the nature of the industry in which the Respondent operates, including the types of hazards and the potentially extreme consequences of accidents, and considering the regulatory impost on the Respondent and the Applicant’s particular employment, the Respondent’s alcohol and other drug standard is lawful and reasonable in all the circumstances. The Applicant did not contest that his conduct was in breach of the Respondent’s policy. […]

[137] I am satisfied that the Applicant’s breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal.”

The Respondent concluded that their AOD Policy, in the same form as it was considered in Purves, continues to serve as a lawful and reasonable requirement in all the circumstances. Analogous to Purves, the Applicant here does not contest his conduct was in breach of the Respondent’s AOD Policy and code of conduct. It follows, the Applicant’s admitted conduct here, as found in Purves, constitutes a valid reason for dismissal.

I have considered the objection made on behalf of Mr Woodgate that certain evidence going to the conduct of the investigation contained in the witness statement of Mr Jones’ witness contained hearsay. I have concluded this issue does not have a significant impact on the determination of the matter as Mr Woodgate did not contest in his witness statement the conclusions concerning the safety breach in the investigation, or that he consumed cocaine on the same day that the shift commenced when the safety breach occurred.

I have considered the evidence and the respective submissions and am satisfied that the Respondent had a valid reason for termination of Mr Woodgate’s employment based on his conduct in consuming cocaine on the day of his rostered shift. In the context of the hazardous nature of the Respondent’s industry, and its legislative duties, the fact that Mr Woodgate’s primary role was directed to protecting the safety of other staff and the public, and that it was a safety critical role, he had clearly been trained in his obligations under the AOD Policy and received multiple refresher trainings and accepted he was in breach of the Policy, and his decision to consume cocaine on the same day as his planned shift, resulted in his failure to comply with the lawful and reasonable direction to comply with the Alcohol and Other Drugs Standards requirements and in this case is a valid reason for dismissal.

Whether the person was notified of that reason

There is no dispute that Mr Woodgate was notified of the reason for his dismissal.

Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

Mr Woodgate accepted that he had been given an opportunity to respond to the reason related to his conduct.

Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

It was not disputed that Mr Woodgate was not denied access by the Respondent to a support person during the investigation and disciplinary process.

If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal

The dismissal did not relate to Mr Woodgate’s performance and this is a neutral consideration.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal

The Respondent is a very large employer and so this is a neutral consideration.

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

The Respondent has sophisticated internal human resources expertise and so this is a neutral consideration.

Harshness of dismissal – safety / non impairment

The Applicant submitted that he had presented to work on 15 March 2024 as he did not feel impaired by the cocaine he had ingested several hours prior. He submitted during the investigation that he would not and never had presented to work when he had felt impaired. He submitted that he took safety very seriously and was aware of the Respondent’s AOD policy.

In response, the Respondent referred to the case of Harbour City Ferries v Toms[2014] FWCFB 6249, where a Full Bench of the Commission observed:

“[27] The lack of any impairment arising from drug use, the absence of a link between drug use and the accident and the absence of substantial damage to the Marjorie Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the Policy. The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.”

The Respondent also referred to Sydney Trains v Hilder [2020] FWCFB 1373 at [32]-[33] to support Mr Flynn’s evidence that subjective assessments of impairment are dangerous and unreliable. Subjective assessment of impairment and intent are all but wholly irrelevant. The Respondent equally submitted that alleged impairment or the fact that the Applicant’s safety breach did not result in a catastrophic incident are not factors relevant to the ground of misconduct identified as non-compliance with its AOD Policy. It follows, the Applicant’s submission regarding his alleged ‘non impairment’ or otherwise is not a relevant factor to be weighed by the Commission here. If anything, the Applicant’s submission here evidences an attempt by the Applicant to defend what is a plain risk appetite to consume cocaine hours before fulfilling safety critical duties.

The Respondent submitted that the role of a Protection Officer is a safety critical role and is designated as a rail safety worker under Rail Safety National Law (the RSNL). A rail safety worker is an individual (whether employee or contractor) who has carried out, is carrying out, or is about to carry out, rail safety work. The Applicant’s Protection Officer role exists to prevent catastrophic collisions with workers, Queensland Rail customers and rolling stock. No one can enter the Rail Corridor and Danger Zone without Protection Officer qualifications or supervision, with the Protection Officer’s primary duty and responsibility to manage the rail safety component of a worksite/s.

The Respondent contended that there is an extensive history of rail incidents in Australia which highlight the consequences when things go wrong, and sadly the Respondent has experienced a number of incidents over the years which have resulted in the death of its workers, including a death of an employee performing the role of Protection Officer, the identical role the Applicant fulfilled. It is therefore critical that the Respondent maintains robust safety management processes, including in relation to ensuring workers are fit to work.

The Respondent disagreed that the termination of employment was harsh, submitting that the Applicant, whilst properly expressing remorse, had led no persuasive evidence of rehabilitation or an ability to control urges. The Applicant says of an online drug rehabilitation programme (the objective evidence of which has not been led) that it was of ‘limited use’, and he does not consider himself a ‘frequent user’.

Further, the Applicant says he only consumed cocaine ‘if [he] wasn’t feeling 100% or felt like [he] a needed an escape from the stress of life’ – given this, the Respondent submitted that it and the Commission could have no confidence that the Applicant would not again consume cocaine on the day of work if he confronted similar life obstacles.

The recent Full Bench decision in Sydney Trains v Reece Goodsell[2024] FWCFB 401 concluded that generally it is not appropriate for the Commission to seek to assess the level of impairment of an employee in breach of a AOD Policy in the absence of clear and cogent evidence. Mr Woodgate’s subjective opinion on the matter is not clear and cogent evidence concerning the level of impairment at the relevant time.

Harshness of dismissal – length of employment

The Applicant submitted that the dismissal was harsh due to his 16 years of service and lack of performance or disciplinary issues (bar the warning in September 2023 as outlined earlier) with the Respondent.

The Respondent referred to the case of Harbour City Ferries v Toms[2014] FWCFB 6249 at [25] where a Full Bench of the Fair Work Commission, in overturning a decision of the Commission at first instance to reinstate a Ferry Master that breached an AOD policy following a post incident test, observed that a length of 17 years of satisfactory service, whilst a factor that attracts sympathy, equally demands a high level of compliance with policy and did not render the dismissal harsh. In this case, the 16 year length of service of the Applicant here equally demands a high level of compliance with the Respondent’s AOD policy. This factor is coupled with the Applicant receiving a recent warning that put the Applicant squarely on notice any further breaches of the Respondent’s code of conduct may result in the termination of the Applicant’s employment, and weighs in favour of a finding that the dismissal was not harsh in the circumstances.

The Respondent said that it considered the Applicant’s length of service and age were not factors to weigh in favour of a lesser discipline action, particularly given the safety critical role the Applicant fulfilled, the Applicant’s knowledge of the applicable policies and experience in this role and the potential catastrophic consequences the Applicant’s conduct, in presenting to duty with cocaine in his system, could have had on himself, other colleagues and the wider public.

It is true that Mr Woodgate has had a lengthy period of service with the Respondent, although he had received a warning in respect to the earlier incident addressed in the evidence above. Mr Woodgate is still a relatively young man at 31 years of age and whilst the termination of his employment has had a significant impact on him, it could not be said that the degree of harshness would be comparable on the basis of his length of service to the case in the Purves matter relied on by Mr Woodgate.

Harshness of dismissal – re-employment prospects

The Applicant submitted that the dismissal was harsh in the circumstances and sought reinstatement. He contended that due to his limited education and specialised skillset as a Protection Officer, his options are limited to finding suitable substantial alternative work outside that role.

The Respondent disagreed with this assertion and submitted that apart from the role being a safety role operating in the context of the rail industry, the skills and knowledge the Applicant holds as part of this role are universal in application in the context of any workplace health and safety management systems. Specifically, the Applicant was trained and deemed competent in:

a)High level of interpersonal, communication and people management skills;
b)Knowledge of safety standards, rules and procedures in the context of operational safety;
c)Sound knowledge of Workplace Health and Safety Legislation and Environment Protection Policies;
d)Managing an interface between workgroups and worksites (including large scale construction sites) to ensure compliance with the Respondent’s safety system;
e)Ability to work proactively and autonomously to ensure compliance with the Respondent’s standards and policies

The Applicant further submitted that as the Respondent owns a majority of the rail network in Queensland, he has effectively been banned from working in the rail sector unless he uproots his entire life to relocate to Central Queensland to find work with another rail provider.

It was submitted the Applicant’s qualifications and experience are primarily relevant to the railway industry, and Queensland Rail’s effective monopoly over rail infrastructure in Queensland severely limits his employment opportunities. This restraint of trade exacerbates the harshness and unreasonableness of the dismissal.

The Respondent submitted that the Applicant has transferrable skills and education that will apply to other employment contexts. The Respondent submitted the Applicant’s assertions that he must leave South East Queensland, at the age of 31, with transferable skills and at a time of low unemployment, are overstated, and his prospects of new employment are very high.

The fact that Mr Woodgate had been employed with the same employer for his entire adult life does mean that he does not have the breadth of varied experience that many other persons at his age would have. However, I accept that he has obtained qualifications and experience that, whilst primarily relate to the railway industry, are also transferable in some respects. Given his relatively young age he is in a far better position to forge a new career than a much older person in the same situation.

Harshness of dismissal – differential treatment

The Applicant submitted that since 2017, with the introduction of the Respondent’s new alcohol and drug management policy, there have been several employees who have not had their employment terminated following a positive result in the workplace. The Applicant alleged that therefore it flowed that he had been treated in a harsher manner than those other employees.

The Respondent referred to the case of Darvell v Australian Postal Commission[2010] FWAFB 4082 at [36] to put the position that there must be sufficient evidence of the circumstances of the allegedly comparable cases to enable a proper comparison to be made. The Respondent stated that the Applicant has not advanced any evidence regarding this assertion, and noted that termination of employment has been the consistent outcome for breaches of the AOD Policy, specifically where employees have presented to work with the presence of cocaine in their system, per the evidence of the investigator, Ms Jordan.

Ultimately cases of this nature turn on their own facts. There has been insufficient material put for Mr Woodgate to make out his claim that his termination of employment has resulted in differential treatment as compared to other employees of the Respondent.

Conclusion on any other matters that the FWC considers relevant

The Respondent concluded that whilst it sympathised with the Applicant’s circumstances, Mr Flynn decided the seriousness of the Applicant’s conduct outweighed the mitigating circumstances and dismissal was appropriate in the circumstances, also considering this is the consistent outcome for such breaches in similar circumstances to that of the Applicant.

The Union has placed particular emphasis on the difficulty the Applicant will have in obtaining other work given his skill set and length of employment with the Respondent. The Applicant in closing submissions placed particular emphasis on the decision in Trevor Purves v Queensland Rail.

As already stated, each case turns on its own particular set of facts and the circumstances here are distinguishable from those in Purves. The Applicant’s length of service is far shorter than that of Mr Purves and the specific impact on Mr Purves is distinguishable given his age and personal circumstances. Mr Woodgate’s role was a safety critical role. Mr Woodgate’s conduct in this case undermined the central function of his role. Mr Woodgate is 31 years of age, far younger than Mr Purves. Mr Purves’ record of over forty plus years was unblemished whereas Mr Woodgate had received a warning approximately 6 months prior to his termination of employment.

I have taken into account that Mr Woodgate has expressed remorse however this needs to be balanced against the seriousness of the breach that occurred.

Conclusion

I have considered each of the matters that are required to be considered in s.387 of the Act to determine the matter. I have concluded that the Respondent had a valid reason for dismissal, that the dismissal was not procedurally unfair, and that despite the significant impact the termination has had on Mr Woodgate, the degree of harshness is not so great as to outweigh the other matters that must be taken into account. On that basis I have determined that the dismissal was not harsh, unjust or unreasonable, and therefore I have determined to dismiss the application.

An order to this effect will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

L Kennedy and C Vicars, of the RTBU for the Applicant
S Harris and U Pala, of the Respondent

Hearing details:

2024
Brisbane
12 September.

Final written submissions:

30 September 2024.

[1] Exhibit 6.

[2] Exhibit 8.

[3] Exhibit 9.

[4] Exhibit 1.

[5] Exhibit 4.

[6] Exhibit 5.

[7] Exhibit 2.

[8] Exhibit 3.

[9] Rail Safety National Law (Queensland) Act 2017 (Qld).

Printed by authority of the Commonwealth Government Printer