Mr Neil Brazell v Viterra Limited

[2014] FWC 9271

[2014] FWC 9271

FAIR WORK COMMISSION

DECISION

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

Mr Neil Brazell
v
Viterra Limited
(U2014/4777)

COMMISSIONER STEEL ADELAIDE, 18 DECEMBER 2014

Termination of employment.

Introduction

[1] This matter is an application for an unfair dismissal remedy by Mr Neil Brazell (the applicant) against Viterra Pty Ltd (the respondent) pursuant to s.394 of the Fair Work Act 2009 (the Act).

[2] The applicant was dismissed for serious and wilful misconduct in that he was alleged to have, as an employee, contravened the “Managing Alcohol in the Workplace Procedure” (the procedure) of the respondent in that he was identified as having attended at work and worked on shift from approximately 6.00 pm with a prescribed alcohol concentration (PAC) of more than 0.02%. The applicant had failed two tests, the first a random test delivered at 7.40 pm approximately and the second at 8.05 pm. Subsequent to the second test he was suspended from work and directed home.

[3] On the 29 January 2014, in a meeting and following investigatory discussions, the applicant was dismissed from his employment. This was confirmed by letter received the next day, being 30 January 2014.

Relevant submissions of the parties

[4] The applicant submits he has a clean employment history in the almost ten years he has worked for the respondent. That the employer’s policy does not specify a zero tolerance approach but is discretionary by its wording. That his levels on record are not high and close to the accepted levels. That the aim of the respondent’s policy accents education, information counselling and rehabilitation and that dismissal is an inconsistent reaction to such an occurrence. That the response of the respondent in the circumstances, including the lack of knowledge of self-testing at the workplace by the applicant, causes the dismissal to be not for a valid reason and hence harsh, unjust and unreasonable.

[5] The applicant submits there was no element of wilfulness in his action and he would accept a sanction of a first and final warning. That he was never warned as to unsatisfactory performance prior to his dismissal. That his dismissal was disproportionate to the infraction and hence harsh and unfair. That the respondent’s policies provide a range of sanctions for such behaviour and there is no basis that the respondent’s most severe sanction of dismissal be applied in this case. The applicant is seeking reinstatement and continuity of service with no compensation for lost income in the period in question or alternatively compensation for economic loss for the relevant period.

[6] The respondent does not contend the applicant’s service was other than good service. The respondent submits the applicant was a night-shift worker working hours of up to 12-hour shifts. That he commenced on 26 January 2014 drinking spirits from 8.30 am, then slept for a period, drove to work and attended for night-shift at approximately 6.00 pm. He was randomly drug tested at 7.40 pm and recorded a reading of 0.034%. He was retested at 8.15 pm and recorded a reading of 0.022%. He was stood down as a consequence of these readings.

[7] The applicant attended a disciplinary meeting on 29 January 2014. The applicant was aware of the allegations against him. He was given an opportunity to respond with a support person present. The respondent took other relevant matters into consideration such as fatigue management and regard for safety of the applicant and other employees. That the applicant had received training in the respondent’s policies in relation to alcohol at work and that he understood the consequences of attending at work in such a condition. The respondent disagrees that the decision to dismiss was excessive and the Commission should not lightly interfere in the employer’s decision in such a case. They say the applicant clearly breached the respondent’s requirements in relation to alcohol. The respondent opposes reinstatement if the Commission found for the applicant in any case as it will affect the respondent’s policy approach. Further, that the respondent has lost all trust and confidence in the applicant. That the applicant is not seeking in any back pay within his submissions for reinstatement.

The evidence

Evidence was provided for the applicantby himself, Mr Rex Tainsh, Mr Campbell Duignan and an expert witness Dr Ken Pidd. The respondent provided evidence from Mr Benjamin Norman, Mr Neil Carr and Mr Brenton Crosby. The Commission considered all witnesses endeavoured to assist by providing direct and relevant testimony. Issues of recall occurred with various witnesses however the Commission considered all generally assisted the hearing of this matter.

[8] In evidence the applicant had some issue with recall of events and his statements as recorded by the respondent. He was working on night-shifts from 18 January 2014. On 26 January 2014 his fourth night shift, he got home at about 7.00 am after 35-45 minutes travel. He then cooked a barbeque for his family by 8.30 am and ate a sandwich. He consumed two alcoholic drinks prior to a friend arriving. He stopped drinking about 11.00 am by which time he estimates he had consumed 6-7 drinks and that he and a friend had consumed ‘half a bottle.’ In examination the applicant identified he had about six drinks in total however the relative strength of those drinks is in question and hence the totality of alcohol consumed. He then slept from noon until 5.30 pm and went to work arriving about 6.00 pm. He remained in the crib room until 6.45 pm until he commenced active duty.

[9] The applicant has an ongoing medical condition but does not specifically advocate any influence of that condition on the events in question except for the instigation of his reason for drinking. 1 The applicant was at work from 6.00 pm supervising a one boom operation, loading a ship within a control room on 45 minute rotation of himself and the operator.

[10] He attended the crib room prior to commencing work and then left to relieve the operator. While he was working in the control room two Viterra employees approached and he was required to submit to a breath test (breathalyser) at 7.40 pm. The applicant states he has never before been tested by the respondent in nine and a half years of employment. He denies trying to avoid the test in the above scenario.

[11] His test reading was 0.034 (considered excessive). He was asked to arrange a relief and he did so. That took 15 minutes in which time he sat at the control desk without an operator adjacent to him technically operating the control desk. Neither of the two present Viterra employees relieved him of his duties. 2 The ship loader continued while the other operator arrived without operation of the controls.3. When relieved he returned to the crib room and awaited a further test.

[12] The second drug test he recorded a PAC of 0.022, again above the acceptable level. He was suspended and sent home. He drove himself. He denies he was advised the incident was serious misconduct with regards to the breach of the alcohol policy.

[13] An investigation by the respondent followed and a meeting arranged for 29 January 2014. The applicant had representation at this meeting. The applicant was asked to explain and he again did not reference any health issues. The applicant stated he had a friend over at his home of the morning in question, had been drinking and had gone to bed about midday. The applicant said the incident was poor judgement on his part. He did not feel impaired by alcohol at any time when attending work. 4 He asserts he was accused repeatedly of being above a PAC of 0.08 when he started to drive to work.5

[14] The meeting was adjourned and when resumed the applicant was asked for a further comment. He explained the occurrence of the recorded PAC level was a genuine mistake. He offered exhaustive prospective testing on his behalf. There was a further break in the meeting. The applicant was terminated in employment. The applicant was angry and upset and the meeting broke up after he left. The applicant has been looking for work since that time and has found various work.

The respondent’s alcohol policy

[15] The applicant asserts he had no specific knowledge of the policy referred to by the respondent and the referred to limit of 0.02% PAC and states he was not trained in such a policy in his 10 years of service. 6 However he later agreed he had undergone some training in June 2013.7 The policy the applicant was trained on was Viterra’s Alcohol Policy issued on 2 December 2010.8 This is the earlier policy to that referred to generally by the parties as the applicable policy referenced which was the Viterra Alcohol and Other Drugs policy and a Viterra/Glencore Grain Procedure of Management of Alcohol in the Workplace both issued on 3 July 2013.(2 documents)9

[16] The question of the lawful policy and procedure applying therefore arises. The respondent’s December 2010 policy(former policy) refers to a PAC of 0.00% at all times for all employees and:

“Where an employee is found to have breached any part of this policy, the employee may be subject to disciplinary action up to an including summary dismissal.” 10

[17] Whereas the respondent’s July 2013 policy refers to:

“Our focus is on identification, counselling and, if necessary rehabilitation.” 11

[18] The accompanying procedure requires for:

“1.2 All employees, contractors and visitors contracted to perform activities on an operating site must attend work and maintain a Prescribed Alcohol Concentration of less than 0.02%.

1.3 Operators of equipment such as front end loaders, forklifts and drivers of heavy vehicles (>4 tonne) along with designated rail safety workers must not exceed a Prescribed Alcohol Concentration of 0.00% in accordance with applicable legislation.

...

1.9 Where an employee is found to have breached any part of this policy, the employee may be subject to disciplinary action up to and including summary dismissal.” 12

[19] The procedure further states:

“3.3 When and individual has been directed to attend a medical assessment to undergo random or for cause testing including but not limited to:

3.3.1 Undertake an alcotest in the presence of a nurse or suitably qualified person as deemed by the company.” 13

[20] The applicant was tested at all times by Mr Crosby, deemed the tester by the respondent company. The question arises as to whether this policy relevantly applies at all times because of the reference to medical assessment. However the policy clearly refers to “deemed personnel” not exclusively medical personnel. Hence “medical assessment” may be intended to be more liberal and inclusive and not limited to medical examination etc.

[21] The applicant says he had never, previous to this dismissal, seen the July 2013 policy document. He says he was never trained in this policy but may have completed some online training that he now does not recall. 14 The July 2013 policy focuses on identification, counselling and rehabilitation. None of which was offered or provided to the applicant in the relevant factual scenario. As to self-testing by employees on site, the applicant says he has never seen a sign about self-testing available on site until 29 January 2014.

Mr Tainsh

[22] Mr Tainsh was the applicant’s supervisor. Her had trust and faith in the applicant and commonly appointed him supervisor on shifts. He confirms Mr Norman in the earlier meeting was concerned the applicant had driven to work under the influence of alcohol estimated at 0.08 or 0.05. In reference to the policy about identification and rehabilitation he recalls Mr Norman stated in the interview that he considered these motherhood statements. 15

[23] Mr Tainsh denies the statement of Mr Crosby about the ready availability of self-testing equipment and that if an employee self-tests they can let him know. 16 Mr Tainsh says he never knew of self-testing equipment.17

[24] Mr Tainsh recalled that the Flinders Ports policy on drug and alcohol (the site -owner’s policy) is a zero tolerance policy but had no recall of outcomes in relation to that policy. Flinders Ports is the client of the respondent and owner of the property that the respondent operates from.

[25] Mr Tainsh recalls the applicant saying he went to bed about 12.30 pm or later. 18 He does not recall discussion of a fatigue management issue and says he can recall raising the alcohol policy only once with employees in the eight or nine years he had been a supervisor.19 Mr Tainsh asserted he has been drug tested at work only once in nine years and breath tested once over the same period of time.20

Mr Duignan

[26] Mr Duignan gave evidence primarily on the Flinders Ports drug and alcohol policy in that the consequences of breaches of discipline did not always lead to dismissal. 21 Flinders Ports has a zero tolerance of alcohol in the workplace. Mr Duignan recalls the applicant referring to friends present with the applicant at home not a singular friend.22 He confirms Mr Norman said that the July 2013 policy was just a motherhood statement. Mr Duignan says the applicant should be able to rely on the focus of the policy as to rehabilitation in his submissions.

Dr Pidd

[27] Dr Pidd gave evidence as an “expert witness”. His evidence is that most testing devices have an accuracy of plus or minus 10%. Hence both readings taken may possibly be variable to that degree. 23 He further states that a testing machine holding calibration for 30 days is enough to be compliant within a standard for such devices but outside 30 days the accuracy of the device is questionable. He also raised the question of a contaminated mouthpiece may be considered given the nature of the consecutive readings.24

[28] Dr Pidd also suggests that alcohol disrupts sleep and the applicant may have felt fatigued rather than impaired. He asserted the induction program of the respondent is elementary and more education in recognition, adequacy of rest and the effects of drinking patterns on impact on health etc would have been more appropriate. If the applicant had knowledge of such issues the impact his consumption may have in the workplace may have altered. With a self-testing policy approach employees may be aware of these issues.

[29] Dr Pidd asserted that no Australian standard for the conduct of alcohol testing in the workplace exists. 25 The apparatus used in this matter was accurate in December 2013 and May 2014. Dr Pidd was not comfortable commenting on a peak reading for the applicant on the day in question, given his assertions on the scenario and the two readings attributed to him. He stated this was speculation. The device used for testing the applicant was a Draeger Type 2 device with a minimum calibration duration of 30 days reliability and indicated compliance. However Dr Pidd again asserted to a potential for environment contamination as a relevant issue.

[30] However Dr Pidd accepted it was apparent the applicant’s blood alcohol was higher when he attended work at 6.00 pm than the first reading at 7 40pm, higher still when he departed for work 35-45 minutes earlier and higher still when he woke up from sleep. 26 Likewise, when the applicant was sent home at 8.30 pm his reading would have been lower.

[31] In terms of reliance on a reading for 0.022% PAC Dr Pidd considered it quite a small reading inclusive of a margin for error and in his view should not have been relied upon for punitive purposes. 27

Mr Norman

[32] Mr Norman is the respondent’s Director of Human Resources and states that the respondent operates on land owned by Flinders Ports. That company has a zero tolerance approach to alcohol. Any person wishing to work at the site must obtain a Flinders Ports access card and complete an induction where the zero tolerance policy is explained.

[33] Mr Norman also confirms that the respondent’s July 2013 procedure is relied upon in relation to the applicant. That policy describes that employees must attend work and maintain a PAC of less than 0.02% and that operators of equipment and designated rail safety workers must not exceed a PAC of 0.00%. 28

[34] The PAC required for employees is explained in the respondent’s procedure. 29 This has evolved over the years and relevantly has progressed from a zero reading policy requirement to one prescribing 0.02% PAC for various workers and having an Alcohol and Other Drug Policy and a Management of Alcohol in the Workplace Procedure for operating and non rating sites. That is the 2010 policy has been split into two, an alcohol and a drug policy and relevant procedures.

[35] The applicant worked on an operating site and Mr Norman asserts he was trained in the policies with regard to zero reading tolerance (December 2010 policy) as the new policy of July 2013 had not been rolled out at the time of the event. 30 He considered that issue as non prejudicial to the applicant as it provided further flexibility utilising the new referenced standards. That is the new policy and procedures July 2013 were those that were utilised in the alcohol incident and further discussions with the applicant. Mr Norman explained that the respondent decided the new policy would be rolled out progressively when an employee became due to undergo their mandatory training on drugs and alcohol as:

“...we were not tightening the controls, we were actually slightly loosening, and we were quite comfortable with people still thought they had to be zero.” 31

[36] Previous policies provided a discretion to management in regard to sanction. The 2010 policy removed various preconditions but highlighted a discretionary approach to sanctions being up to and including dismissal. 32

[37] In the discussions with the applicant the respondent did not believe the applicant as to the amount of alcohol he had consumed and that he could think it would not matter given his version of events. 33 The respondent relied upon the readings from the testing machine, not on the issue of whether the applicant thought he was impaired at anytime. Mr Norman identified various cases of dismissal and re-hire and non dismissal sanctions against a number of other employees.

[38] The availability of to self-testing equipment, which is held to be available to employees of the respondent at the worksite, is determined by local management. Usage is not monitored in terms of incidence and consumption of supplies and their promotion by the respondent is generally ad hoc. 34

[39] The particular testing equipment utilised on the applicant in this matter provided a print out record of readings. 35 Mr Norman, under examination indicated that to his knowledge there was not a dedicated education and training program provided to employees which is inconsistent with the policy of the employer relied upon by the respondent.

Mr Carr

[40] Mr Carr is the respondent’s Adelaide Region Operations Manager and gave evidence on the Draeger testing equipment utilised on the applicant in regard to his positive testing at the workplace.

[41] He further explained the nature of the Flinders Ports induction that the applicant had completed to work on their property. 36 Given the submissions of the parties the Commission accepts that Mr Carr’s evidence introduced this document as being related to the applicant’s induction. Consequently the applicant, though dismissed for an alcohol related matter, had been given a further induction card for working on Flinders Ports premises.

[42] The document indicates the applicant accepted a random testing regime as an employee, to maintain a PAC of 0.00% .Noting he was not an employee of Flinders Ports.

[43] Mr Carr indicated there was not a default outcome in the application of the zero tolerance policy and that due process would take place with involvement of senior personnel. Mr Carr was unable to provide any detail about active education and training to employees and further that the applicant had never had any face-to-face training on such a policy, just on-line training.

[44] In respect to sufficient rest from duty Mr Carr considered the applicant had insufficient rest from work. He emphasised that the applicant had admitted the offence and was remorseful in the discussions that occurred. 37

Mr Crosby

[45] Mr Crosby is the respondent’s Operations Supervisor for the Port Adelaide and Outer Harbour terminals. He gave evidence on random testing and disposal of the mouthpiece after individual use. Mr Crosby was not trained in contamination issues and followed the established procedure in completing random testing of employees. 38

[46] He observed the applicant in the lunch room prior to the commencement of his shift. On announcing random testing to the employees present at that time including the applicant. He noticed the applicant left the room. The witness considered the applicant had heard him and concluded the applicant was trying to avoid him. 39

Legislation

[47] The issue in dispute is whether the applicant has been unfairly dismissed. The provisions of the Act at s.385 provide that a person has been unfairly dismissed if the FWC is satisfied that:

(a) The person has been dismissed;
(b) The dismissal was harsh, unjust or unreasonable;
(c) The dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) The dismissal was not a case of genuine redundancy.

[48] The Small Business Fair Dismissal Code and the issue of genuine redundancy were not relevant in this case.

[49] A dismissal may be:

● harsh, because of its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct;

● unjust, because the employee was not guilty of the misconduct on which the employer acted; and/or

● unreasonable, because it was decided on inferences which would not reasonably have been drawn from the material before the employer.

[50] The criteria that the Commission must take into account in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, are set out in s.387 in the following terms:

(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 the dismissal; and
(e) If the dismissal related to unsatisfactory performance – 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 the Commission considers relevant.

Consideration

[51] The Commission considers the references to the policies of Flinders Ports are a benign matter in regard to the dismissal of the applicant. The requirement that he have an access card and hence permission to enter their property required he submit to an induction process that included various references to zero tolerance on alcohol and requirements. Flinders Ports is not the employer in this matter and at best could withdraw the access card of any employee at anytime or require their contractor, the respondent in this matter, to remove any employee on contractual demand. The induction content of a prescribed approach to alcohol and influence of alcohol on guest workers and visitors within the Flinders Ports property is background to the applicant’s knowledge of such matters and the landlord’s requirements. It is a reference to the applicant in this matter that issues with alcohol and consumption of alcohol may lead to such consequences from Flinders Ports generally and he could not have escaped that requirement and had that knowledge.

[52] The applicant was usually employed as an operator of loading equipment. On the shift in question he was the designated supervisor in the control room in the presence of another operator. The applicant asserts he was not responsible for the loading, that his job was administrative and monitoring. 40 When he was tested, he was, by Mr Crosby’s uncontested evidence, operating the ship loader. Another worker was called to relieve him which took no more than five minutes. Mr Crosby and Mr Faerber remained with the applicant until such worker arrived and relieved the applicant. The evidence is that the control room is on the ship loader and the operators need to be alert to risk of injury to person.41 The Commission finds that the applicant’s position on the shift in question was, or included, ship loading operations.

[53] The Commission considers on the evidence provided by Dr Pidd and others that the testing equipment was efficient and effective and there is no evidence of potential contamination of the testing results provided by the applicant and others.

[54] The Commission finds also that the applicant must have consumed a significant amount of alcohol such that he could not meet the level of PAC% required to pass such tests that were administered. Further, from Dr Pidd’s evidence as to rates of absorption and decline of PAC levels, the applicant must have been in excess of the level 0.05% when he travelled to work that day.

[55] The respondent has commented on the behaviour of the applicant in doing so and further about his alleged avoidance of testing, his fabrication of a version of events and his contention that he did not feel impaired at work. The Commission has considered the evidence in total and has found that the evidence against the applicant’s version is persuasive.

[56] The commission finds it improbable that the applicant, with little sleep and little food and having drunk various spirit based drinks with a friend, for a substantial period, would not feel the effects of that consumption. Hence he had a responsibility to himself, others and his employer to consider his situation and act accordingly to avoid a risk to his welfare and others.

[57] The applicant submits that the test results are unreliable and if we use the 0.02% PAC level as the applicable level and adjust for error (plus or minus 10%) his results are not in conflict with the policy applied.

[58] On consideration of all the evidence the Commission finds the applicant was trained in the policy of the respondent dated December 2010 in June 2013. On the relevant day of his testing he was operating machinery and therefore his required PAC level was 0.00%. The respondent determined a new policy and procedure dated July 2013 and has seemingly applied those new provisions to the applicant in a beneficial manner, i.e. applying the 0.02% PAC level as a non-operator even though the evidence is that he was operating at times and given that the former policy was more strict in relation to requiring a level of 0.00% PAC at all times. This approach by the respondent cannot be other than non-prejudicial to the applicant in the circumstances. However on both tests the applicant exceeded 0.02% PAC and on both policies the applicant failed the required levels of PAC.

[59] The Commission considers the approach by the respondent in these circumstances to be beneficial to the applicant and more lenient to the applicant as to process, but also an illustration of an obscure policy approach as the new policy and procedure had apparently not been rolled out to all sites and not to the applicant. We therefore have dual policies being referenced. However the referenced applicable standards in both policies required of the applicant are not in conflict and the manner of approach was non-prejudicial in terms of levels.

[60] The current policy document itself in contrast to the previous policy asserts that the respondent shall focus on identification, counselling and if necessary rehabilitation of employees with alcohol and/or drug abuse problems. It is asserted by the applicant that the respondent’s approach did not convey such a focus by them. The Commission finds that is the case as the applicant was not identified save for his performance in this matter to have an alcohol or drug problem or not brought it to the respondent’s notice at anytime. The Commission finds that the accent on safety policy in the former policy is repeated in the current policy.

[61] Notwithstanding the above finding the Commission considers it is of no productive purpose to provide words in a policy that give the impression that such actions shall occur or create an expectation that such an approach shall be available in very limited circumstances. The policy should be clearer.

Conclusions

Was there a valid reason for the applicant’s dismissal?

[62] The applicant, an experienced, mature worker was dismissed after an unblemished record or employment for failing random PAC tests while engaged as an operator/supervisor of a ship loader. The evidence is compelling that the applicant consumed a quantity of alcohol, had little to eat, had slept four to five hours maximum and had travelled to work. Within a few hours he had failed two PAC tests and recorded levels of 0.034% and 0.022% respectively. These levels were above the respondent’s requirement in this circumstance of 0.02%. The Commission has found the level applicable to the applicant and on which he had previously been trained recently was a level of 0.00% PAC.

[63] The respondent chose to give him a leeway in such readings and the Commission is of the view this formed a material benefit to the applicant at the time of the incident. However he failed that amended requirement and failed to concur with the respondent‘s policy on the management of alcohol in the workplace. What the applicant did was unacceptable to the respondent and indicated a repudiation of his responsibilities in regard to his personal safety at work. The applicant, by Dr Pidd’s evidence, must have been impaired by the level of consumption when he travelled and reported to work. He clearly in his actions put himself and others at risk in his work duties.

[64] The respondent’s actions of not disseminating comprehensively and clearly their applicable policies and articulating the available and intended courses of action are a limitation on the veracity of their documentation. Similarly there are obvious resources having been applied to such policies but minimum resources evident in the training of employees in such new policies. However in this matter and in full consideration of all the evidence. The Commission does not consider such issues amount to a fatal flaw in the respondent’s position considered against the actions of the applicant such that the Commission should intervene. The behaviour of the applicant measured against all the referenced policies is too extreme and the risk so significant to occupational health and welfare in the workplace that it cannot be ignored or condoned.

[65] Accordingly the Commission has therefore formed the view that the respondent had a valid reason for dismissal being the applicant’s breach of their policy on alcohol at work.

Was the applicant given the reasons for dismissal?

[66] The applicant was given the reasons for his dismissal.

Was the applicant given an opportunity to respond to any reason related to his capacity or conduct?

[67] It was not contentious that the applicant was not given such an opportunity and the evidence does not instigate a concern to the Commission.

Was there an unreasonable refusal by the employer to allow a support person?

[68] The applicant had representation and support during the relevant process.

Was there a warning about unsatisfactory performance before the dismissal?

[69] The applicant was dismissed for serious misconduct and breach of policy of the respondent.

Was there an impact due to the size of the employer on the procedures followed in affecting the dismissal?

[70] It is not contentious the employer has a substantial workforce. The Commission has provided some criticism of the employer’s policies, however has found those issue are insufficient to warrant intervention and review in this matter.

Was there an impact due to a lack of dedicated human resource management specialists or expertise in the enterprise that affected the procedures followed in affecting the dismissal?

[71] There was no absence of such specialists and the Commission has found no cause for intervention as to this consideration.

Any other matters?

[72] The applicant had significant service and is a skilled experienced employee. He has endeavoured to gain work and that goes to his favour and character. The breach of policy by his behaviour stands out however and the significance cannot be overlooked as a mistake or an “unwitting infraction” as put by his counsel.

[73] After weighing up the relevant criteria I have concluded that the applicant’s dismissal was not harsh, unjust or unreasonable and hence the Commission shall not intervene in the respondent’s decision to dismiss the applicant.

[74] The application is dismissed.

COMMISSIONER

Appearances:

Mr M Ats for the applicant

Mr A Short for the respondent

Hearing details:

2014:

Adelaide

23 and 24 July

 1   Exhibit A1 at para 16

 2   Ibid at para 29

 3   PN 391

 4   Exhibit A1 at para 42

 5   Ibid at para 43

 6   Ibid at para 66

 7   PN 192

 8   Exhibit R6

 9   Exhibit A3, Annexures RT-1 and RT-2

 10   Exhibit R6 at p 2

 11   Exhibit A3, Annexure RT-1

 12   Ibid, Annexure RT-2

 13   Ibid

 14   Exhibit A1 at paras 75-76

 15   Exhibit A3 at para 24

 16   Exhibit A4 at para 38

 17   Ibid at para 39

 18   PN 551

 19   PN 601-604

 20   PN 616-623

 21   Exhibit A5 at para 8

 22   PN 833

 23   PN 1058

 24   PN 892-912

 25   PN 929

 26   PN 1017

 27   PN 1073

 28   Exhibit R5 at para 8

 29   Exhibit A3, Annexure RT-2

 30   PN 1142, 1156-1157

 31   PN 1157

 32   PN 1232

 33   PN 1287

 34   PN 1476

 35   Exhibit R10

 36   Exhibit R1

 37   PN 1981

 38   PN 2053

 39   Exhibit R12 at para 18

 40   PN 2274

 41   Exhibit R12 at para 18-20

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