Spinks v Co-Operative Bulk Handling Limited trading as CBH Group

[2021] FCCA 1367

FEDERAL CIRCUIT COURT OF AUSTRALIA

Spinks v Co-Operative Bulk Handling Limited trading as CBH Group [2021] FCCA 1367

File number(s):	PEG 463 of 2019
Judgment of:	JUDGE VASTA
Date of judgment:	10 June 2021
Catchwords:	INDUSTRIAL LAW – enterprise agreement – whether interpretation of a clause which prohibited certain actions should follow the methodology used in adverse action cases
Legislation:	Fair Work Act 2009 (Cth) s 50
Number of paragraphs:	55
Date of last submission/s:	10 June 2021
Date of hearing:	10 June 2021
Place:	Perth
Counsel for the Applicant:	Mr L. Edmonds
Solicitor for the Applicant:	The Maritime Union Of Australia
Counsel for the Respondent:	Ms F. Stanton
Solicitor for the Respondent:	Minter Ellison

ORDERS

PEG 463 of 2019

BETWEEN:

RAEMA MARGARET ANNE ROSE SPINKS

Applicant

AND:

CO-OPERATIVE BULK HANDLING LIMITED T/A CBH GROUP ABN 29 256 604 947

Respondent

ORDER MADE BY:	JUDGE VASTA
DATE OF ORDER:	10 JUNE 2020

THE COURT ORDERS:

That the Application filed 27 November 2019 is dismissed.

REASONS FOR JUDGMENT

JUDGE VASTA

1. The Respondent, Co-operative Bulk Handling Limited trades as CBH Group.  It is a business that is responsible for the storage, handling and processing of grain within Western Australia.  When it is harvest time, which is usually from October until January, the company puts on a number of employees.  One of those employees has been the Applicant, who is Raema Margaret Anne Rose Spinks. 

2. The Applicant first worked for the Respondent during harvest time in 1995. Occasionally, the Applicant was also engaged to work for other periods.  Sometimes, she was not engaged at all in a particular year.  The Applicant explained that she would contact CBH around June each year, when she would check to see if they needed employees for the upcoming harvest time.  Every time that she was successful, she would then go through the sample courses and the safety course again.

3. This was casual employment, notwithstanding that the Applicant was employed for harvest time for many, many years between 1995 and 2018.  Part of this employment meant that employees could not be at work with a blood alcohol concentration (“B.A.C”) above zero.  This was a Life Saving Rule.  It had been assigned the number three of such Life Saving Rules.  There were regular random testing of employees at the work site to ensure that this requirement was strictly in force.

4. Employment with CBH Group was regulated by an Enterprise Agreement called the “CBH Geraldton Plant Operators Union Collective Agreement 2015” (“Agreement”).  Relevantly, cl 30.8 of the Agreement provided that:

   If an employee breaches CBH Life Saving Rule #3 and has no breaches of this rule in the previous 12 months, and there are no other disciplinary factors in consideration; they will receive a final warning for the breach.  The employee will be required to participate in counselling and/or an Employer nominated rehabilitation program and submit to additional random testing as required by the Employer for the 12 months immediately following the breach.  Failure to do so, or further breaches of Life Saving Rule #3, may result in termination of employment.

5. Clause 30.9 of that Agreement stated:

   However, in the event the first breach of Life Saving Rule #3 results in an incident or accident where the outcome is either:

   •Injury, impairment or death of any person; or

   •Serious damage to the Employer’s property or equipment; or

   •The investigation finds the employee deliberately disregarded their own safety or that of others

   then termination of employment may occur for a first breach of this rule.

6. The facts in the matter are not truly in dispute.  For reasons I will go into later, where there are some disputes of fact, I have, in the main, accepted the version of the witness Duncan Gray over that of the Applicant.  The relevant facts are these.  On 29 October 2018, the Applicant commenced her most recent casual employment with the Respondent.  The Applicant was tested on a number of occasions to ensure she complied with the zero B.A.C. requirement.

7. On 21 November 2018, the Applicant left her home for work at approximately 6:30 am.  The journey to the CBH terminal was approximately 16 kilometres from the Applicant’s residence.  Upon arrival, the Applicant drove through the gates of the terminal.  This time of morning, that is, from about 6:45 am to 7:45 am, is a particularly busy time at the terminal.  The Applicant parked her car and went to the toolbox meeting.

8. She was then breath-tested by Mr Neil Berry at the toolbox meeting.  Mr Berry was her supervisor.  This breath test occurred at 7:20 am.  The Applicant returned a reading of 0.067.  Mr Berry told her to go to the kitchen and to have a drink to wash her mouth out and that she would be retested in about 20 minutes.  The Applicant said that she was shocked by the result of the test and humiliated that the test had occurred in front of her work colleagues.

9. She says she was convinced that the reading was as a result of her using Listerine mouthwash before she went to work that morning.  The Applicant told Mr Berry that she used mouthwash that morning, and also that she had consumed vanilla essence in a glass of milk before coming to work.  The Applicant was retested at 7.40 am in a private area by Mr Berry.  On this occasion, she returned a reading of 0.053.  Mr Berry completed the chain of custody form.  That form is reproduced at CB 300. 

10. Mr Berry recorded that the Applicant had spoken about her use of mouthwash and of vanilla essence.  Mr Berry said that the Applicant told him that she was sorry and she was shocked by the result.  She told Mr Berry that she would never have come to work if she thought she was over the limit. 

11. Mr Berry stood the Applicant down from work.  He told her that because she was over the driving limit, he would drive her home.  The Applicant accepted this offer.  Mr Berry said that the car ride was approximately ten minutes duration and that the Applicant was mostly quiet during the car ride.

12. Mr Berry told the Applicant that he did not know where the matter would end up, but that the Respondent had to make a decision regarding disciplinary action as she had breached a Life Saving Rule.  Mr Berry conceded that he may have indicated to the Applicant that she could be stood down from work until the next harvest season. 

13. Mr Berry took the Applicant inside her house and he was there for a short time before being picked up by another CBH employee and driven back to the site. 

14. The Applicant did not say anything to Mr Berry about consuming wine the night before the test, and there was no discussion about any form of consumption of alcohol.  After Mr Berry arrived back at the site, he received a phone call from the Applicant.  In that phone call, she told Mr Berry that the vanilla essence bottle label said that it had an alcohol content of 35 per cent.  Mr Berry said to the Applicant that he did not think this would have put her over the limit, as she would have had to have drunk the whole bottle.

15. Duncan Gray, the general manager for CBH in Geraldton, was notified by Mr Berry after the positive test.  He said that he told Mr Berry to offer to drive the Applicant home from work.  Mr Berry told Mr Gray that the Applicant was distraught and wanted to see him.  Mr Berry gave Mr Gray the Applicant’s address and telephone number.  Mr Gray then called her and arranged to visit her later that day.

16. When Mr Gray arrived, the Applicant was visibly upset.  She told Mr Gray that she was having a difficult time with the anniversary of her husband’s death and that another family member was terminally ill.  She explained that she had been under a lot of pressure.  Mr Gray spoke to her and tried to calm her down.  The Applicant told Mr Gray that she put vanilla essence in her cup of milk the morning of the positive test.  Mr Gray told her the vanilla essence was unlikely to make a test positive.

17. The Applicant then told Mr Gray that she had three to four glasses of wine the night before to help her sleep.  She showed Mr Gray the glass that she said she drank the wine from.  I do note that there is a photograph of the glass that can be found at CB 30.  The Applicant told Mr Gray that she stopped drinking between 9:00 pm and 10:00 pm the night before.  Mr Gray conceded that the Applicant may have told him that she filled the glass with ice when she consumed wine.

18. The Applicant told Mr Gray she had not eaten much and had slept little the night before the test.  He talked to her about stress and lack of sleep.  Mr Gray said that he was at the Applicant’s house for about an hour.  He said that he wanted to make sure that she understood the process that the Respondent would undertake given the breach of the Life Saving Rule.

19. Mr Gray was at pains to tell the Court that this was not part of any investigation.  He said he was there at the house simply because she had asked him to come and he wanted to make sure that she was okay and understood the situation. 

20. After Mr Gray left the house of the Applicant, the Applicant composed a letter.  Mr Gray received that letter sometime later, though I accept that the Applicant delivered the letter by hand the next day.

21. That letter is reproduced at CB 219.  It reads as follows: 

    21/11/2018

    Dear Duncan,

    I started work with CBH in 1995 as a casual. I have loved this job and the people I have worked with so much over that 21 years.  The last thing I would ever do is to make them (work mates) be ashamed of me, because they all matter, young and old – I call them my “CBH family”.

    What happened today was such a shock and I was astounded by my reading. It is totally outside my integrity as a person and a work mate to all. Had I knowingly consumed alcohol before work, I would have rung and said I couldn’t come to work for personal reasons. The only source of alcohol I consumed (unknowingly) was through my Listerine mouthwash and through vanilla essence added to a milk drink for flavour. I have attached scans of the bottles of each product to show the alcohol content. I was unaware they both contain alcohol (the vanilla contains 35%), or I would not have consumed them.  This was an honest mistake – I thought it was just a flavouring.

    I love my job too much to knowingly do anything so silly, because, as I tell everyone, CBH saves my soul and my sanity in this crazy world we live in. CBH is my life line and I wait “all year” to get back to this work.

    I have had a lot of personal ups and downs the past few years with the untimely death of my husband; another family member in palliative care and a possible inquest in a criminal court hearing regarding my husband’s death still to come. The work at CBH has been a lifeline and keeps me pumping in the chaos in my life.  I sincerely love the work and the people and would never jeopardise my position there.

    The incident today came as a complete shock and definitely not the way I would want to leave CBH’s employment.  I strive to make family members, friends and workmates proud to be associated with me.

    I hope you will remember the fact that I have always been honest and hardworking - always doing my best for CBH over the past 21 years - and to consider giving me a second chance.

    Thank you,

    Yours sincerely,

    Raema Rose Spinks

22. Mr Gray then followed protocol and was attempting to set up a meeting.  The policy states that the employee needed to be provided with 24 hours’ notice and advice that they could have a support person to attend the meeting. 

23. In evidence before me, there is an email trail that begins on the morning of 26 November 2018.  Jenny Woods, who is the senior HR advisor for the Respondent, sent an email to Annie Cannon at 8:12 am. The email attached the chain of custody form; that is, the one filled out by Mr Berry. Ms Wood asked Ms Cannon this:

    Hi Aneak,

    Cam just forwarded me this one from Bruce for alcohol – was this a termination too?

    Regards,

24. Ms Cannon replied at 8:33 am saying:

    Hi Jennie,

    Yes this is a termination.  Just a question Raema can apply next year can’t she?

    Kind regards,

25. Ms Woods replied at 9:17 am saying:

    Hi Aneak,

    No, it’s a LSR breach, so it should be a termination – DNR for 24 months.

26. DNR seems to be an acronym for Do Not Re-employ.

27. At 9:26 am, Ms Cannon wrote to Ms Wood saying:

    Hi Jeannie,

    Duncan was saying, could we have an official letter that I can give to the supervisor Neil so he can have a sit down with her and explain.

    She is coming into the office today to pick up her payslips

    Kind Regards

28. Ms Wood replied at 9:36 am saying:

    Please see the attached you will just need to add in the time she was allocated to start shift.

    Regard,

29. Attached to that email was a document headed, “Harvest Casual - LSR.DOCX.”  This document was a blank meeting form, but it already had a number of details filled in. 

30. On 26 November 2018, that same day as these email trails, the Applicant did attend the CBH premises to pick up her payslips, as she explained she needed them to be given to Centrelink so she could start receiving payments.  While she was there, she was told by the receptionist to wait because Mr Gray needed to speak to her.  Mr Gray came out of his office and said that he needed to see the Applicant for a disciplinary meeting, but needed to give her 24 hours’ notice before holding the meeting. 

31. The Applicant replied words to the effect, “I’m here now.  Why wait?  Let’s just do it now”.

32. Mr Gray agreed and went to get Mr Berry so that there could be a third person at the disciplinary meeting.  Mr Gray described the meeting as being brief.  He spoke to the “record of meeting document” (which had been attached to that email I have just mentioned) and gave the Applicant time to respond to the proposal to terminate her employment.  He noted that he had a copy of the letter that she wrote on 21 November 2018 at the meeting, which I have already read into the record. 

33. He said that the Applicant was very upset and kept telling him how sorry she was.  He said that the Applicant maintained the story that she tested positive because she drank vanilla essence and used mouth wash on the morning of the test. Mr Gray said that he explained to her that if she had been caught by police driving to work, that she would have blown over the limit. 

34. The Applicant’s recollection of the meeting is that Mr Gray read from a document that explained that the Applicant was there for disciplinary reasons as a result of a positive B.A.C test.  She recalls him saying that she would be terminated and could not reapply for employment for two years.  She said that she was asked to provide a response at this meeting, and she explained that she believed the positive test was as a result of using mouthwash in the morning, and because she put vanilla essence in her cup of warm milk instead of Milo. She said that she told the meeting that she did not know vanilla essence contained very significant levels of alcohol at the time. 

35. Mr Berry said that Mr Gray had used the disciplinary meeting record document to conduct the meeting.  He recalls Mr Gray asking the Applicant how things got where they were, and what her version of the events was.  Mr Berry said that the Applicant was upset and very apologetic and kept saying that she loved the Respondent company and that it was like a second family.  He said that the Applicant kept maintaining that she used mouthwash and vanilla essence, which caused the reading. 

36. Mr Berry recalled the Applicant saying that she had not been sleeping or eating well and was under stress from personal and family issues, which included the anniversary of her husband’s death, and a family member being terminally ill.  Mr Berry said that the Applicant admitted that she knew the rules and would never have presented at work if she thought she was over the limit.  He said that she said that the only difference from her usual pre-work routine was putting vanilla essence into her morning cup of milk as she had run out of Milo.

37. Mr Gray said that the decision to terminate the Applicant was his and his alone.  He said that the factors he considered when terminating the Applicant were the dishonesty of the Applicant regarding her alcohol consumption, particularly her repeated statements to the effect that the reason for the positive alcohol test was the consumption of vanilla essence and the use of mouth wash;  the very high readings which were the breach of the Life Saving Rules;  and, the fact that the Applicant drove to work on the morning of the positive test from her home and entered the premises of the Respondent, which is particularly busy at that time, therefore putting persons in the premises of the Respondent at risk.

38. The Applicant, Mr Gray, and Mr Berry all gave evidence before me. 

39. The Applicant was dogmatic that the alcohol that she had drunk the night before was totally irrelevant to her B.A.C reading, and that the only explanation for her B.A.C reading was the use of mouth wash and ingestion of “a dash” of vanilla essence in a mug of milk earlier that morning.  I do not accept her evidence to be truthful.  It seems to me that the Applicant cannot face the truth and has told herself this story that the vanilla essence was responsible.  She has repeated that story to herself so many times that she has convinced herself that it is actually true.

40. Far too many times during her cross-examination, she would not answer the question, but proceeded to give a speech about how she would not have impugned her own integrity.  As Shakespeare so succinctly put it, “The lady doth protest too much, methinks.” 

41. The fallacy of her belief was illustrated by the fact that her immediate thought was that the mouthwash was to blame for her B.A.C level.  When it was pointed out to her that she had used mouthwash on every occasion where she had given a B.A.C reading of zero, she was at a loss to explain why it was that she immediately thought of the mouthwash.

42. As I have said, I have also accepted the evidence of Mr Berry who said that the Applicant told him that she had ingested vanilla essence that morning.  The Applicant gave evidence that she did not know there was any alcoholic content to vanilla essence, yet gave this as a form of explanation to Mr Berry at the time of his conducting the second breath test. 

43. The immediate resort to these two explanations without any resort to the fact that she had, even on her own evidence, ingested alcohol less than 12 hours before the test, truly illustrates that what the Applicant says is “her belief” could not ever be genuine.

44. Consistent with the evidence, it would seem to me that the Applicant understood the gravity of the situation from her conversation with Mr Berry as he drove her home.  Knowing that there would be a response by CBH regarding the B.A.C level, she attempted to “get in first” by asking Mr Berry to tell Mr Gray that she wanted to see him.  She was hoping to minimise the damage she had done, and to hopefully save her employment.  I accept that Mr Gray attended the house of the Applicant because of her request, and I accept that the Applicant did tell him that she had been drinking until 9:00 pm or 10:00 pm the previous evening.

45. I accept the evidence of Mr Gray that he did not have a predetermined outcome for the disciplinary meeting in his mind on 26 November 2018.  Whilst it may be that the other employees of CBH (Ms Cannon and Ms Wood) did consider the policies of CBH meant that the Applicant would be terminated, those employees may not have been familiar with the terms of the EA that was in place for the Geraldton site.  I accept Mr Gray when he said, in effect, that each case must be assessed on its own facts and circumstances. 

46. I also accept that the matters that Mr Gray said that he had looked at with regard to assessing the facts and circumstances were: the honesty and ownership of the breach and any remorse that is displayed because of the breach. I accept that those are the matters he looks at each and every time there is a breach of any of the Life Saving Rule; whether it be rule number three or any of the other five. 

1. However, consistent with his evidence, I am of the view that Mr Gray did approach the disciplinary task as a show cause matter; that is, termination was the default position, and that one then looks at all other facts and circumstances to decide whether termination is the proper conclusion. 

2. I have come to that view given the manner in which Mr Gray gave his evidence and the manner with which he approached the task.  Consistent with the EA and clause 30.8, it seems to me that, for a breach of Life Saving Rule #3, the default position is a final warning unless there are previous breaches or other disciplinary factors in consideration. 

3. The question before me then, is whether the Applicant has proven that the Respondent has breached the Agreement in clause 30.8, and thereby breached s. 50 of the Fair Work Act 2009. 

4. Unlike the considerations that a Court must take into account in an adverse action procedure, in this case, the Court must look at whether the relevant clause has been complied with on an objective basis.  The Applicant has based their case on a subjective examination of what must have been in the mind of Mr Gray when he made his decision, which is the manner in which adverse action cases must be examined.  On my view of the evidence, subjectively speaking, I have determined that Mr Gray approached the disciplinary task as a show cause matter. 

5. Because of this, the Applicant has submitted that Mr Gray’s approach therefore breached clause 30.8 of the Agreement.  I do not accept that reasoning.  In assessing whether clause 30.8 has been breached, the Court must objectively decide:

   (1) Whether the Life Saving Rule #3 had been breached;

   (2) Did the Applicant have any previous breaches of this Rule in the previous 12 months;

   (3) Were there any other disciplinary factors in consideration.

6. Clause 30.8 does not set out the manner in which breaches of Life Saving Rule #3 must be dealt with.  That is done by the policies and procedures of the Respondent.  Clause 30.8 simply prescribes that the result must be a final warning unless there are those other two factors in play.  Whether those other two factors are in play is a matter for objective judgment.  The Applicant submits that a proper construction of clause 30.8 would see that the other disciplinary factors are matters that are totally unconnected with the breach.

7. The Applicant contends that it would be an absurdity for the other factors to also be related to the breach of Life Saving Rule #3 and the objective circumstances around that.  The Applicant submits that “other disciplinary factors” are a very wide matter that can include any form of previous disciplining of the person who has breached Life Saving Rule #3.  It may be as trivial as being late for work. 

8. The Applicant submits that any previous disciplinary factor means that the default position of the result of a breach being a final warning is no longer applicable because there is “another disciplinary factor”. But unless the “other disciplinary factor” is covered by clause 30.9, it cannot be considered if it arises out of the circumstances that surround the breach of Life Saving Rule #3.

9. Whilst it seems to me that there may be some merit in the submission about the wide interpretation of “other disciplinary factors”, the fact is that that does not mean that any of the circumstances surrounding the breach cannot be “other disciplinary matters”.  In other words, the fact that the “other disciplinary factors” arise from the circumstances around the breach does not mean that they are excluded from consideration unless they are covered by clause 30.9.

10. The Applicant submits that there could not have been any other disciplinary matters or factors in consideration.  The Applicant contends that the Applicant was honest and that she holds a genuine belief that the cause of the B.A.C reading was the ingestion of vanilla essence. 

11. As I have already said, this contention of the Applicant is not truly a “belief” nor could it ever be described as either “honest” or “genuine”.  The Applicant still refuses to countenance that her ingestion of alcohol the night before the test could have had any bearing on her B.A.C readings the following morning.  It is often said that “there are none so blind as those who will not see”; and the ability of the Respondent to trust the Applicant is damaged and diminished by the actions of the Applicant behaving in such a dishonest manner.

12. The material before me also contains the affidavit and report of a Dr Euan James Thompson.  Dr Thompson was not required for cross-examination in this matter.  Dr Thompson is an expert who has studied the B.A.C readings.  It is his opinion that the Applicant’s contention that the Applicant had drunk up to 200 millilitres of wine or had two drinks, in her parlance, and had stopped drinking at 8:00 pm could not account for the readings that were given the next morning. 

13. The report of Dr Thompson does not allow for any reasonable conclusion that the ingestion of a dash of vanilla essence in a mug of hot milk could account for those readings either.  The fact that the Applicant refuses to countenance those matters, that lack of honesty, that lack of owning the breach and the lack of remorse is, to my mind, a circumstance that fits into the category of “other disciplinary factors”. 

14. It is something that is quite apart from the actual breach.   The actual breach is returning a B.A.C of over 0.00.  The actions of the Applicant in her dealings with the Respondent, and what I will term as her dishonesty, does fit into the category of “other disciplinary factors”.

15. The Applicant also takes issue with the Respondent characterising the Applicant’s driving as a disciplinary factor.  The Applicant contends that this is outside the employer’s ability to supervise the conduct of employees and is tantamount to an attempt by the Respondent to pass judgment upon the out-of-hours conduct of the Applicant. 

16. However, it seems to me that the Applicant was driving from her home to the CBH terminal and, very importantly, drove her vehicle onto CBH premises during a time when the activity of the terminal was very busy.  To drive both on a public road and then onto CBH premises with a B.A.C that one can safely infer was over 0.067, could only be something that would be considered dangerous and deleterious to the rights of other CBH employees to be safe at work. 

17. This is consistent with the evidence that Mr Gray had given as the serious aspect of what the Applicant had done that day.  Again, the driving is a totally separate aspect and is not part of a “single course of conduct”.  The conduct or misconduct is returning a B.A.C of over zero.  The Applicant presented for work with a B.A.C of over 0.00.  That is the breach.  The breach does not matter how the Applicant got there. 

18. As I said to Counsel during the course of submissions, it would not matter whether the Applicant drove to work or whether the Applicant was given a lift to work with someone else, or if little green men teleported the Applicant to work.  The breach is that she presented with a B.A.C of over 0.00.  The fact that she drove with a B.A.C over the legal limit to work as an employee of CBH and then onto the premises, during a very busy period, is something that is separate to the breach but will constitute an “other disciplinary factor”.

19. The Applicant maintains that Mr Gray simply read from the meeting record that was prepared earlier and that, that was the only reason why the Applicant was terminated.  As I have said earlier, I accept the evidence of Mr Gray that he did take into consideration the matters that he spoke of in making his final decision.  I therefore reject the contention of the Applicant on this aspect.

20. What it is that I have to do is to look at clause 30.8 and objectively assess whether the Respondent complied with that clause.  There is no question that the Applicant breached Life Saving Rule #3.  There is also no question that the Applicant did not have any breaches of this rule in the previous 12 months.  But there are other disciplinary factors in consideration.  I am of the view that those other disciplinary considerations do not need to actually be subjectively “in the mind” of the person when it is that they are making the decision, but it must be able to be objectively identified and to be sufficient to justify the actual conclusion made. 

21. But even if I am wrong in that, it is clear to me that these factors were in the mind of Mr Gray at the time.

22. Because of those reasons, I am of the view that the Respondent has not breached cl 30.8 of the EA and therefore has not breached s 50 of the Fair Work Act 2009. 

23. The Applicant has failed to prove its case. 

24. I therefore dismiss the application. 

I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta.

Dated:       25 June 2020