Dismissal too harsh despite breach of zero-tolerance policy in safety critical industry

By Anna Casellas, Karina Hanrahan

20 Jul 2017

Employers should remember that dismissal is not the only form of disciplinary action available.

A failure to close off a workplace incident in 2014 has triggered an unfortunate chain of events, ultimately culminating in the harsh dismissal of a ship captain in late 2016, the Fair Work Commission has found.

Employers should be aware that the investigation of a workplace incident can have long-lasting effects, and the failure to provide closure to an incident can negatively affect employees. Further, while the breach of a zero-tolerance policy may be a valid reason for dismissal, it may still be harsh and accordingly, unfair.

In the decision handed down on 5 July this year, 61 year old Captain Jurgen Rust had been summarily dismissed for registering a blood alcohol concentration of 0.044 on the morning of a crew change. While Commissioner Bissett found this was a breach of the employer's zero-tolerance alcohol policy, the dismissal was still harsh.

The 2014 incident

The saga began in March 2014, when Captain Rust was involved in a verbal altercation with colleagues on board the Far Scimatar in relation to working arrangements. The heated verbal exchange was investigated by the employer, Farstad Shipping Pty Ltd, who found while complaints against the captain were substantiated, they did not warrant disciplinary action beyond the suspension which had already occurred.

Farstad found Captain Rust did not act in breach of his safety obligations, and directed him to rejoin the Far Scimatar after his suspension, despite the colleague involved in the incident remaining “obstructive and intolerant” towards the Captain. Shortly afterwards, Rust was diagnosed with depression and prescribed anti-depressants.

The 2016 dismissal

Over two years pass, and Captain Rust agrees to fill in on the Far Sirius as mentor to a new master. On the day prior to his shift commencing, Rust chanced upon another colleague who was present at the 2014 incident. This run-in left the Captain anxious and depressed, and he found himself relying on 8 to 10 full strength beers to calm himself. Registering on the random blood alcohol test the following morning was enough for Farstad to conclude this Captain's last ship had sailed.

Valid, but too harsh

Captain Rust brought an unfair dismissal application to the Commission, requiring him to make out that the dismissal was harsh, unjust or unreasonable. Commissioner Bissett acknowledged the Captain was operating in a “safety critical industry” and accordingly, the breach of the company's safety policies was a valid reason for dismissal.

However, Commissioner Bissett also took into account Farstad's failure to close off the incident in 2014, which had resulted in a “lingering bitterness” in Captain Rust. Evidence was brought that the Captain appeared to have an adjustment disorder arising from what happened in 2014, which resurfaced after the chance encounter with an old colleague.

Farstad failed to close off the 2014 incident by:

  • not conveying any final decision to Captain Rust in 2014; and
  • failing to respond to a written request by Captain Rust in October 2015 regarding the investigation.

This failure to close off the incident was the starting point in an unfortunate chain of events leading to the consumption of too much alcohol. Further, Commissioner Bissett noted Farstad's consideration of the penalty was binary – "dismissal, or not dismissal". The failure to consider other types of disciplinary action was, in the circumstances, "too narrow".

How to avoid this happening to you

The decision serves as a strong reminder to employees to take appropriate action after any workplace investigation. This includes:

  • providing a final decision to all of the parties involved;
  • taking into consideration whether colleagues can continue to work together after the incident;
  • responding to any requests made by employees in relation to the incident; and
  • following up employees who may be at risk of mental health issues after the investigation.

Employers should also remember that dismissal is not the only form of disciplinary action available, and should not be the only option taken into consideration.

If your business needs assistance with handling a workplace investigation and dealing with the aftermath, our Workplace Relations team at Clayton Utz can help.

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