Mr Doug Smith v BHP Billiton Petroleum Pty Ltd

[2010] FWA 3349

[2010] FWA 3349

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Doug Smith
v
BHP Billiton Petroleum Pty Ltd
(U2009/13690)

DEPUTY PRESIDENT MCCARTHY PERTH, 28 APRIL 2010

Termination of employment – failed alcohol test – employee due to be made redundant.

The Facts

[1] The Branch Secretary of the Australian Workers Union on 11 November 2009 lodged an application pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”) on behalf of Mr Doug Smith (“the Applicant”) claiming that the applicant had been dismissed unfairly from his employment with BHP Billiton Petroleum Pty Ltd (“the Respondent”). The applicant commenced employment with the Respondent on 15 November 2000 and became permanent on 18 September 2001 as a Production Technician aboard the Griffin Venture floating production, storage and off-take facility (“FPSO”).

[2] On 1 July 2008 the Respondent introduced a heath, safety and environment policy, namely, a drug and alcohol policy (“the AOD”), which applies to (amongst other workplaces) the FPSO.

[3] The Procedure provides (amongst other things):

1. That the threshold for recording a positive test result for breath alcohol is:

• 0.02%or greater breath alcohol content for the initial test; and

• 0.04% or greater breath alcohol content for the confirmation test;

2. That a positive drug or alcohol test result may result in termination of employment; and

3. For an employee assistance program which allows employees to come forward for rehabilitation treatment without risk to themselves or others, or risk of termination.

[4] The Applicant was generally aware that it was contrary to Company policy for employees to attend for work with alcohol (or other drugs) in their blood and that termination of employment could result.

[5] The Applicant was on sick leave and did not work in the week ending 26 October 2009. On 26 October 2009 the Applicant telephoned Michael Haynes, Production Specialist, at the FPSO to say that he would be returning to work on 27 October 2009.

[6] In that same discussion on 26 October 2009, Mr Haynes informed the Applicant that he would be mobilised to the FPSO through Learmonth Heliport and that he, along with all of the Respondent’s personnel returning to the FPSO, would be breathalysed at Learmonth before being permitted to board a helicopter.

[7] On 27 October 2009 at the Learmonth Heliport, the Applicant was initially breath tested for alcohol at 10.37am and returned a reading of 0.05. At 10.53am, the Applicant was again breath tested for alcohol. This confirmation test returned a reading of 0.046.

[8] On 27 October 2009, the Applicant claimed that the medication he was taking at that time may have affected the test results. The Applicant wrote on the Breath Alcohol Testing Form that he was taking Tryzan and Lipitor. The Applicant did not dispute the test results or raise any concerns about the testing procedure or equipment.

[9] On 29 October 2009, the Applicant and the Applicant's support person met with David Cooke, Human Resources Manager, and Ms Nolan. At that meeting the following matters were raised with the Applicant:

• The factsand circumstances relating to the positive breathalyser results of 27 October 2009; and



• That the normal course of action when an employee had a confirmed positive breath alcohol test result for which there was not medically justifiable explanation, and after considering the Applicant’s response, would beto summarily terminate the Applicant's employment (and consequently to provide the Applicant with payment only up to the time of termination of employment, which meant he would not receive payment in lieu of notice or a redundancy payment).

[10] At the meeting on 29 October 2000, the Applicant was then given the opportunity to raise any issues and mitigating factors. There was a brief adjournment of the meeting, during which Ms Nolan and Mr Cooke met without the Applicant to consider what the Applicant had told them. The points raised by the Applicant were not sufficient to persuade them that summary termination was not warranted. The meeting reconvened and Ms Nolan and Mr Cooke informed the Applicant that they proposed to write to senior management in Houston and request approval to terminate his employment effective 30 October 2009.

[11] Ms Nolan and Mr Cooke then asked the Applicant for his response to this proposal. The Applicant:

• Disputed the accuracy of the test results;



• Referred to his unblemished careerwith the Company for nine years;



• Stated that his personal doctor had raid that the effect of the "cocktail" of medicines he was taking could not be quantified; and



• Maintained that his employment could be terminated effective 26 October 2009 provided he received a redundancy payment.

[12] On Friday 30 October, the Applicant (and a support person, Mr Stephen Price, The Australian Workers’ Union, Western Australian Branch Secretary), met with Ms Nolan and Mr Cooke. At the meeting, the Applicant was advised of the Company’s decision to summarily terminate his employment. At that meeting the Applicant denied having consumed alcohol since lunch-time on 26 October 2009.

[13] There was a brief recess after which Mr Price requested that the Company retrospectively bring forward Mr Smith's redundancy date, which was 2 November 2009, to 27 October 2009, in order that he could receive his redundancy payment. This was not acceptable to the Company. Mr Price indicated that he regarded this as harsh and that Mr Smith would seek remedy in Fair Work Australia (“FWA”).

[14] The Applicant was notified of his termination of employment, effective immediately, by letter dated 30 October 2009. On 4 November 2009, and confirmed in writing by letter dated 4 November 2009, the Applicant was informed that, following further consideration by the Respondent, he would not receive any additional payment.

[15] The Griffin Venture is no longer operational. It was demobilised and disconnected from the field on or around 16 November 2009.

Facts regarding the Test Results

[16] The alcohol content test results of 27 October 2009 are accurate.

[17] The Applicant’s breath alcohol content test results of 27 October 2009 were not affected by any of the medications, namely: (a) Titace; (b) Lipitor; (c) Dimetap; (d) Clarinase; or (e) Benadryl.

[18] The only credible explanation for the Applicant's level of breath alcohol content test results of 27 October 2009 is prior consumption of beverages containing alcohol.

[19] The drop in a breath alcohol content reading from an initial reading of 0.05%, to a second test reading (taken 16 minutes later) of 0.046% is normal for a Caucasian male of average height and weight.

Expert Evidence

[20] A statement by Dr David Joyce was tendered by the Respondent. Its content and conclusions were not contested by the Applicant. Dr Joyce is a Professor in the School of Medicine, Dentistry and Health Science at the University of Western Australia and Head of Clinical Pharmacology and Toxicology at Sir Charles Gairdner Hospital and PathWest Laboratory Medicine.

[21] Dr Joyce stated that:

• “Tritace; (ii) Lipitor; (iii) Dimetapp; (iv) Clarinase; and (v) Benadryl, separately, and in any combination, have not affected the Applicant’s breath alcohol result.

• Blood alcohol concentration in an adult male rises while he is drinking, and for a little while afterwards. Then it starts to fall. The average rate of fall for an adult male is 0.016% per hour. This is also the figure adopted by the WA Road Traffic Act for this stage of alcohol elimination. Mr Smith's blood alcohol concentration, as estimated by breath analysis, fell from 0.05% to 0.046% over 16 minutes. This is the same as 0.015% per hour, or almost exactly average for an adult male.

• Alcohol consumed before 2pm on the day before testing would have had more than 20 hours to clear from the body. The blood alcohol concentration at 2pm would have to have been in the region of 0.30% (ie, extremely intoxicated) for there to still be a measurable residual at 20 hours after the last drink, and around 0.35% if that residual was 0.05%

• Alcohol consumed before 8pm on the day before testing would have had more than 14 hours to clear from the body, whether it had come from alcoholic beverages or from medications. The blood alcohol concentration at 8pm would have to have been in the region of 0.22% (ie, very intoxicated) for there to still be a measurable residual at 14 hours after the last drink, and 0.27% if that residual was measured as 0.05%. This would equate to around 13 to 14 standard drinks still in the body at 8pm. It would not be credible to suggest that alcohol from a pharmaceutical preparation had made anything more than a trivial contribution to the overall alcohol load, even if amounts greatly exceeding treatment recommendations had been taken.”

Consideration

Was there a valid reason for the termination of employment?

[22] There is no controversy regarding any of the matters in s.387 (b) to (g) of the FW Act. I have had regard to those matters.

[23] What is asserted by the Applicant is that there was no valid reason for the termination of his employment. He says further that even if there was a valid reason that the termination was harsh, unjust or unreasonable.

[24] The Applicant argues that he had not commenced work when the test was taken and that by the time he would have commenced work the level of alcohol present in his blood would have continued to reduce to below the allowable level.

[25] I do not accept this argument. The Respondent’s testing practices and procedures involve testing prior to the boarding of the helicopter that transports personnel to the Griffin Venture. For the purposes of the Procedure when on the helicopter, persons are regarded as being at a work site.

[26] No person is permitted on the helicopter if they are affected by alcohol or drugs. The Applicant was aware of these practices.

[27] I also consider it entirely appropriate for the Respondent to use the time that the test was taken as the relevant time for the purposes of measurement of alcohol in the Applicant’s blood. The Respondent has responsibilities for the safety of persons travelling to and from the FPSO and is entirely within its rights to require those travelling by helicopter to be in the same condition as though they were at work.

[28] It is also relevant to consider the seriousness of the breach by the Applicant in the context of whether the termination was a proportionate response by the Respondent to the conduct that occurred. I do not consider that the response of the Respondent to the conduct of the Applicant was a disproportionate one. The conduct was serious and the Respondent was not unreasonable in treating it as seriously as they did.

[29] I find that there was a valid reason for the termination.

Was the termination harsh, unjust or unreasonable?

[30] Had the Applicant's employment not been terminated and he completed the next three days of his roster, then his employment would have come to an end in any event as the Griffin Venture was being demobilised. The Applicant was aware of this prior to his breath test.

[31] A consequence of his employment being terminated summarily was that the Applicant was not entitled to a redundancy payment. The entitlement would have been substantial. A summary termination in those circumstances might by some be regarded as being harsh, or unreasonable.

[32] A further issue relevant includes the Applicant’s responses and explanations regarding his conduct. I do not consider that the Applicant was fully forthcoming in his explanations regarding in his breath test results. His story seemed to change as each of his explanations was countered by the Respondent. For example, his explanation that he “had a few beers” the day before, ended by on his own account as being a total of six pints of lager before and during lunch and some wine during and after lunch. He said lunch concluded at about 2pm.

[33] As stated above I consider the Respondent’s AOD policies and procedures to be reasonable. The Applicant knew of those policies and procedures and also knew that he would be breath tested when he was.

[34] What in essence the Applicant is requesting this tribunal to find is that his conduct was less serious than the Respondent asserts for reasons including the monetary loss the Applicant suffered through not becoming entitled to a redundancy payment.

[35] In considerations of this nature I do not consider that it is for me to place myself in the shoes of the Respondent and make a decision on the basis of what I would have done if I were in those shoes. Indeed one employer might take one approach to an employee’s conduct and another employer might take a quite different approach. My role is to determine whether the response of the Respondent was outside the band of reasonable responses by an employer given the nature of the conduct and the relevant circumstances.

[36] The Respondent considered the conduct extremely seriously and was not unreasonable in doing so. Clearly the Respondent considered the level of alcohol in the Applicant’s blood as impairing his capacity whilst traveling on the helicopter or whilst on the Griffin Venture. Evidence of Dr. Joyce supported the Respondent’s view regarding the effects of alcohol on an employee’s capacity.

[37] In my view the Respondent was not unreasonable in taking a strict view of the conduct notwithstanding the consequences for and circumstances of the Applicant. In essence the Respondent appears to have decided it was not prepared to compromise their safety policies because of the personal consequences for the Applicant. I do not consider the Respondent’s approach in that regard is outside the band of reasonableness or harshness that a reasonable employer would have taken.

[38] It also does not appear to me that the Applicant was treated differently to the way any other employee in similar circumstances would have been treated.

[39] I do not regard the termination of the Applicant’s employment to have been harsh, unjust or unreasonable. I therefore find that the termination was not an unfair one and dismiss the application.

DEPUTY PRESIDENT

Appearances:

Mr A Dzieciol, for Mr D Smith

Mr P Quinlan of counsel with Mr D Scanlan for BHP Billiton Petroleum Pty Ltd

Hearing details:

2010.

Perth:

April, 19.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR996523>