C2017/4121, Transcript of Proceedings [2017] FWCTrans 386 (12 September 2017)

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PN1

DEPUTY PRESIDENT GOSTENCNIK: Yes, good morning. Mr Pollock, you're appearing for the appellant and the cross-respondent in the second matter?

PN2

MR A POLLOCK: Yes, that's right, your Honour.

PN3

DEPUTY PRESIDENT GOSTENCNIK: Ms Doust, for the cross-respondent and the appellant?

PN4

MS L DOUST: Yes. With me is Mr Forsyth, initial L.

PN5

DEPUTY PRESIDENT GOSTENCNIK: Yes, thank you, Ms Doust, permission has already been granted and advised to the parties. Mr Pollock?

PN6

MR POLLOCK: Thank you, your Honour. A couple of administrative matters before I begin my submissions. Firstly, there was an amended notice of appeal which was filed and served, along with our principle submissions. I understand my learned friend has a copy with her, I just want to confirm that your Honours have copies of that notice of appeal?

PN7

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN8

MR POLLOCK: Secondly, I've had some very brief discussions with my learned friend as to how best to approach the running of these submissions in the circumstances that we have, both the appeal proper and the cross-appeal. It strikes me there are two ways that that might be approached, one is to deal with them separately, deal with the appeal proper first and have the oral submissions, in chief, in response and in reply and then deal with the cross-appeal. However, that is somewhat of a lengthy tennis match in going backwards and forwards.

PN9

The second is perhaps to approach it this way, if I deal with my submissions in chief on the appeal proper, my learned friend responds to those submissions and puts her submissions in chief with respect to the cross-appeal, the revers then occurs and then finally my learned friend has an opportunity to reply on her cross-appeal only. Of course, I'm in your hands and I think my learned friend is similarly in your Honours' hands as to how to approach it.

PN10

DEPUTY PRESIDENT GOSTENCNIK: We're content, Mr Pollock, with the second approach.

PN11

MR POLLOCK: Thank you, your Honour. Now, your Honours, I propose to approach these oral submissions in a similar fashion to the structure that is set out at paragraph 2 of our outline. Perhaps, for assistance, before I begin, we've also complied a joint bundle of authorities, which contains all of the authorities referred to in various submissions and also each set of submissions, so we have one bundle. I'm instructed that a copy for my learned friend is being urgently run across here and should be here in a very short period of time. I don't think there's going to be anything that I traverse that my learned friend doesn't have a copy of, it's simply going to be in an easier form.

PN12

I propose to deal with these oral submissions, in accordance with the structure set out at paragraph 2 of our outline, which is behind tab 1 of that folder. This if the outline dated 11 August of 2017. That is, to deal with these seven grounds by way of categories, the first being those grounds which concern Bissett C's consideration of evidence, concerning Farstad's investigation of the 2014 allegations, if I could put it in that category, then to deal with Bissett C's consideration of Farstad's approach to the possible disciplinary outcomes, that is ground 3, then the failure to adequately consider the decision not to self-report, that's ground 4. Then, finally, grounds 5 to 7, which concern the Commissioner's treatment of evidence around Captain Rust's failure to report his taking of prescription medication.

PN13

Now, as to that first category there are effectively three grounds, ground 1 has two sub-grounds, but each of (a) and (b), in ground 2, concern the treatment of that evidence, concerning the 2014 incident and investigation. Ground 1(a) says that those matters were an irrelevant consideration and, in that way, giving rise to an error in the exercise of discretion in House v The King sense. In the alternative, ground 1(b) advances that proposition on the basis that that evidence was given manifestly excessive weight and the discretion, on that basis, miscarried.

PN14

I note in my learned friend's submissions that it's suggested that an error in the weighing exercise cannot amount to an appealable error in the House v The King sense, and that is put by way of answer to ground 1(b) and, if I can recall correctly, ground 4, but you'll see that advanced in my learned friend's written submissions.

PN15

It is not the case that an issue of weight can never amount to an error in the exercise of discretion in the House v The King sense. My learned friend is right to say that simply a difference of opinion between the Full Bench and first instance tribunal involved, which weighing result would ultimately have been reached is not an appealable error, however, we put that at the level of the weighing exercise was so manifestly excessive, in the context of ground 1(b), that it ended up with an manifestly unreasonable outcome.

PN16

Now, my learned friend points to Mt Arthur and the reference in there to the High Court in Gronow v Gronow. If one examines the High Court's decision in Gronow v Gronow it is not authority for the proposition that my learned friend advances, in fact it is authority for the proposition that in circumstances where that manifestly excessive weight or inadequate weight gives rise to an unreasonable outcome that that is an appealable error in that sense.

PN17

One can see, at 534 in Gronow v Gronow, and you'll find Gronow v Gronow at tab 27 of that folder.

PN18

DEPUTY PRESIDENT GOSTENCNIK: It's not tab 27.

PN19

MR POLLOCK: It's tab 27 in the copy that I have, Gronow v Gronow, is that not what your Honours have?

PN20

DEPUTY PRESIDENT GOSTENCNIK: No, tab 27 in my copy is North Sydney Council v North Sydney Leagues Club.

PN21

PN22

MR POLLOCK: Sorry, your Honours, I'm getting some instruction on this.

PN23

DEPUTY PRESIDENT GOSTENCNIK: In fact, at least in the index, I can't see Gronow.

PN24

MR POLLOCK: I apologise for this, your Honour, the copy that I have has that case in here. I'm not quite sure why the copy that you have does not. In any event, perhaps if I can, at the very least, give you the relevant citation and I can point my learned friend to where that is, and the citation is [1979] HCA 63; 144 CLR 513. At 534, in the decision of Aickin J, there's a reference back to Lovell v Lovell and the decision of Latham CJ. This is the relevant principle:

PN25

When the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of the relevant considerations an appellate tribunal should not set aside an order made in the exercise of judicial discretion unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise a discretion actually entrusted to the court.

PN26

Now, it is that form of discretionary error that we point to for ground 1(b). One can also see that principle set out in the decision of the Full Bench, in Sellick(?) v Woolworths, which is behind my fold in tab 24, it's tab 13 in your folder. There the Full bench of Watson VP, Cartwright SDP and Foggo C, at paragraph 24 of this:

PN27

In our view, this ground of appeal seeking to challenge the weight given to a factor can only succeed if it is demonstrated that the giving of weight to this factor meant that other relevant factors were given no weight or that the alleged disproportionate weight led to an unreasonable or plainly unjust outcome.

PN28

Now, the passage that my learned friend points to in Mt Arthur perhaps states the principle a little too bluntly, it should be read in light of those principles and to the extent that that decision says that an error in the weighing exercise can never give rise to a House v The King error then it is plainly wrong.

PN29

So in approaching grounds 1(a) and 1(b) it is useful, first, to step through what Bissett C in fact found, with respect to sections 387(a) through to (g), before we get to the countervailing considerations of 387(h).

PN30

Firstly, the Commission found that there was a valid reason. She found that Captain Rust was tested, in accordance with Farstad's policy, and those findings can be found at paragraph 80 and 83 of the decision. She found that Captain Rust returned a blood alcohol or breath alcohol content reading over twice the cut-off and breached the policies in that regard. Those findings can be found at paragraph 79 and 81 of the decision.

PN31

The Commissioner also found that the fact that the policies did not mandate dismissal and allowed for a lesser penalty did not, on its own, abrogate from the seriousness of Captain Rust's conduct, that's at 98 of the decision.

PN32

Bissett C also found Farstad's policies required Captain Rust to be fit to undertake duties and she found that he could not have done so at the time of testing and there was a real question whether he could have, at the time he boarded the bus, arrived at the supply base or boarded the vessel and that this was a breach as he was required to comply with the policies at that relevant time. That's at 82 and 83 of the decision.

PN33

The Commissioner also found that Captain Rust's status as what was referred to as a supernumerary on that particular swing was irrelevant. That is, he held the status of the Master and he was part of the crew and he was required to comply with Farstad's policies. That finding is at 84 of the decision.

PN34

Bissett C also found that Captain Rust had a number of opportunities and plenty of time to decide what he would do in the face of having encountered a member of his former crew on the afternoon before and following his decision to drink 10 beers on the evening before his shift. That finding is at 96 of the decision.

PN35

Bissett C also found that Captain Rust worked in a safety critical environment and that he could have been called on to perform Master duties, if directed, during the course of that swing. That's at 99 of the decision.

PN36

As to the facts of 387(b) through to G, Bissett C found that Captain Rust was notified of the reason for his dismissal, that's at 102 to 105 of the decision. That he was given an opportunity to respond, that's at 106 and 107 of the decision. That there was no unreasonable refusal of a support person, at 108 and that factors around warnings for performance and the scale of the employer's HR operations were not relevant factors, that's at 109 and 110.

PN37

So the totality of all of those findings, at least to that point in the decision, point squarely toward an overall conclusion that the dismissal was not harsh, unjust or unreasonable. Ultimately what we reach is that the factors in 387(h) displaced that preliminary position.

PN38

It's also clear, on a fair reading of the decision, that of those factors Bissett C's finding, concerning the 2014 investigation, and specifically Farstad's alleged failure to close that investigation out, was the critical issue. One can see that at 127 of the decision where the Commissioner observes this:

PN39

My finding that the decision to dismiss Captain Rust was harsh should not be seen as any vindication of Captain Rust's conduct. He is a very experienced Master. He has worked for Farstad for 16 years. Were it not for the failure of Farstad to close off the 2014 incident my findings may well have been different.

PN40

So what were those findings concerning the 2014 investigation? We set those out, at least in summary form, at paragraphs 5 to 6 of our outline, behind tab 1. But in outline form, that investigation concerned allegations that Captain Rust had made some inappropriate comments to his crew in a discussion around the appropriate manning levels for a particular type of work. It is alleged that he said words to the effect of, "I prefer to see a crew member be killed than to bump the rig."

PN41

Captain Rust was stood down, that matter was investigated by an external HR consultant and that allegation was found to be substantiated, however no ultimate breach of policy was concluded. I think, on a fair reading of that report, it seems that Captain Rust's comments could be interpreted in one of two ways, one of which being, "Well, if you bump the rig, then the vessel could go down and you could lose 100 lives," so on one view there is nothing, perhaps, ultimately inappropriate in what he said. In any event he was provided with the outcome report and he was returned to work. Yes, he was returned to work on the vessel that he had previously worked on so he was working back with the crew who had made allegations against him. He had further issues with the complainant, Mr Ribergaard, culminating in a confrontation in January of 2015.

PN42

The further finding that Bissett C makes is that Captain Rust made a further report to Farstad, in October 2015, concerning Mr Ribergaard's conduct and about the 2014 incident and that he didn't receive a response. That's in October of 2015. We are dealing with an incident that's a year after that, in 2016.

PN43

Ground 1(a) proceeds on a footing that the considerations around that 2014 investigation were simply irrelevant in the consideration of the October 2016 policy breaches. My learned friend's submissions suggest that we submit that there must be a direct relationship of relevance between the matter and the misconduct.

PN44

Now, we don't put the case quite that way and we don't put it quite that highly. Of course section 387(h) is a very broad discretionary factor and, of course, there are some matters which go to the nature of the misconduct, by way of mitigating the seriousness of that misconduct that might be considered. Equally, you might have some considerations that go to the particular characteristics of the employee themselves. The length of their service, their age, some other kind of factor which would render the dismissal harsher than it otherwise might be.

PN45

The way we put it is simply this, where the factor that is advanced by the applicant, under 387(h), relates to the misconduct or is said to relate to the misconduct, by way of some form of mitigation, then there must be, at the very least, some kind of logical connection or some kind of baseline relevance between that matter and the misconduct itself. Of course there will be other considerations that might be raised that relate to the employee and not the misconduct, but where it is advanced, by way of mitigation of the misconduct which is the way it is advanced here, there must be some relevance to it. You have to give meaning to the words "any other matter that the Commission considers relevant," in 387(h), it's not a free for all.

PN46

Now, a practical illustration of that principle is precisely what one sees in the Full Bench's approach on Harbour City Ferries v Toms. That, I'm told, is behind tab 6 of your folders, your Honours. The relevant passage is at paragraph 24 through to 28. You'll see there that there were a range of factors and they're set out, in dot point form, at paragraph 24, that were advanced by way of purported mitigation for the misconduct itself.

PN47

Now, the analysis, at paragraphs 27 and 28, in my submission, is a practical illustration of precisely this point. You'll see the Full Bench says there:

PN48

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 Marjory Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the policy.

PN49

In the first passage at paragraph 28:

PN50

The mitigating factors referred to and relied on by Lawrence DP are not mitigating factors that address the core issue, which was the serious misconduct which led to the dismissal of Mr Toms. The only mitigating factor relevant to this issue was the use of marijuana as pain relief, consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the policy.

PN51

So, in my submission, that is a very practical illustration of precisely that point.

PN52

In my submission there are three bases on which it can be said that the 2014 investigation was simply an irrelevant consideration. The first is this, there was nothing so unusual or so remarkably deficient in Farstad's approach to investigating and closing out that allegation that warranted elevating that matter from some two and a half years prior to a consideration of real substance. That is set out at paragraph 8 of our outline.

PN53

It is, of course, critical in considering that to review precisely where Captain Rust, in fact, left things on that issue, in October of 2015. One can see that at page 375 of the Appeal Book, this is in his own correspondence, which he sent to Captain Hall at Farstad, this is annexure JR10 to Mr Rust's initial statement. You'll see an email there,

PN54

dated Friday, 9 October, and Captain Rust is expressing himself to be taking up Mr Hall's advice to reply to the final report and findings therein, in an effort to clear his reputation. He provides a response, in the subsequent paragraphs, and says that he still feels that the overall handling surrounding his suspension was flawed. But right at the bottom there he details a range of complaints but then he says:

PN55

However, with all that's been said and with the benefit of time I've since recovered from this very hurtful experienced and feel reconfirmed in my new command. Please ensure that this correspondence is entered in my personal file and I'll let you decide who in our organisation should be made aware of both the original complaint and my reply.

PN56

Now, nothing in that email presses for a further reply or pushes for further steps to be taken or the investigation reviewed, it simply records his position. It also makes abundantly clear that, as of October of 2015, Captain Rust had, in effect, got over it. He didn't agree with it, he didn't agree with the investigation outcome but he was drawing a line in the sand. That's the first point.

PN57

The second point is that Captain Rust's account of that matter as a trigger to his drinking 10 beers on 5 and 6 October 2016, a year later, is an account which was, one, inherently unlikely and, two, contrary to the evidence before Bissett C. What's put and what was found was that Captain Rust was triggered, some two years later, by saying a crew member, who wasn't, in fact, the antagonist, this wasn't the complainant and the employee who he had subsequent run ins with, in the six months after, this is an employee who he'd in fact come and apologised to him after the fact for the treatment that he'd received.

PN58

Now, the suggestion that that matter was a trigger is certainly contrary to the fact that Captain Rust didn't raise that issue, didn't raise that this was a trigger, at any point in time in the various discussions he had with managers on the day of the positive BRC result. It wasn't raised until some weeks later.

PN59

Now, one can see those concessions from Captain Rust at paragraph 188 to 194 in the transcript and Captain Rust was taken to a series of - - -

PN60

DEPUTY PRESIDENT GOSTENCNIK: That doesn't mean that the finding is contrary to the evidence, it simply means that at an earlier point in time Mr Rust didn't raise the issue.

PN61

MR POLLOCK: That's right, your Honour, of itself it may not be. But when one - I'll take you to the passage in the decision, the reason I raise that is this, Bissett C seems to suggest that or raises these as potential concerns, that perhaps this isn't an unlikely scenario. The passage in the decision - you'll see this at 95 of the decision. It reads this:

PN62

I am satisfied that the conduct of Captain Rust must be considered in context. The context with respect to this conduct of Captain Rust is that he was felling anxious and stressed because of his encounter with Mr X.

PN63

This was subsequently abrogated from the decision, this is a reference not to the antagonist, this is a reference to another employee entirely.

PN64

It is not clear, however, why Mr X generated these feeling (he was, after all, the person who apologised for the language at least of Mr Ribergaard in the 2014 incident) but no evidence was adduced on this matter. I therefore accept Captain Rust's evidence of the effect of the encounter.

PN65

What I'm suggesting here, your Honours, is that the conclusion, on the basis of there being an absence of evidence on this issue, for a start, is not accurate, there was evidence from which inferences may have been drawn, and the absence of advancing this rigger, as an explanation of the conduct, until some weeks later, is one of those matters that would be considered in the mix.

PN66

Now, one would quite reasonably ask, "Well, what evidence could have Farstad reasonably adduced on this issue?" The absence of which seems to be criticised by Bissett C and form the basis for her accepting Captain Rust's evidence. That's evidence of his subjective feelings about an interaction with an employee. There is no way that Farstad could lead evidence of that nature.

PN67

My submission is simply this, Captain Rust's evidence about how he subjectively felt, following that interaction, had to have properly weighed against the whole totality of the evidence, a number of pieces of which, including that failure to disclose that as an issue until weeks later, and the fact that a year prior his response to the company suggests that he's feeling fine about things, tends to suggest that that version perhaps ought not be accepted.

PN68

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock, as I read that paragraph it seems to me the Commissioner was saying that Mr Rust gave evidence about how he felt, it was open to Farstad to lead evidence from a professional psychiatrist or psychologist to suggest that such feelings are remotely likely or most unlikely to come about by an encounter of somebody who wasn't directly involved in the incident, but didn't do so, so she's left with the position of accepting his evidence. Isn't that a fair reading of what she's saying?

PN69

MR POLLOCK: That may be a reading, your Honour, and insofar as there is a criticism of the absence of that expert evidence led from Farstad, then we could say it no higher than of course we did not lead that evidence below.

PN70

DEPUTY PRESIDENT GOSTENCNIK: Other than reading it as a suggesting that you could have called Mr X, who could have denied that there was a discussion, or you could have called Mr X who gave evidence that not only did he have an encounter with Mr Rust but he had nine beers with him, or something to that effect. I don't read it that way, I read it to suggest that some professional evidence could have been called about the likelihood of such an encounter having that effect.

PN71

MR POLLOCK: Well, your Honour, if that's the way in which that passage is read, I think it's fairly opaque, I don't think there's any - one might have expected the reasons to be a little clearer to identify that.

PN72

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN73

MR POLLOCK: In any event, the principle is simply this, when one weighs whether or not to accept that account, on the basis of what is purportedly to be an absence of a specific piece of evidence it needs to be weighed in the broader context, including those issues which I've pointed to. I don't think there's - certainly the opening words of 95 are a correct statement of the approach, that is, it does need to be weighed in context. Our complaint is that those other pieces of the evidence weren't weighed in the balance.

PN74

In any event, the critical reason why the 2014 investigation is simply an irrelevant consideration is this, even if - let's assume that it has some, albeit tenuous, relevance to Captain Rust's decision to drink 10 beers on the evening before, let's assume that for a moment and the way in which it seems to emerge from the decision and the way in which it's advanced by my learned friend is, "Well, notwithstanding that two and a half years had passed, somehow encountering this other employee brought all these memories flooding back and so Captain Rust made an error of judgment and chose to self-medicate." If you're going to find relevance, that's it.

PN75

Let's assume for the moment that that is sufficiently relevant in order to weigh that in the mix of 387(h). It has no relevance whatsoever to do with the actual breach. The actual breach is not his decision to drink 10 beers the night before, the breach is his decision the morning after to report for work, reportedly as fit for work, and to return a positive BAC result, over twice the maximum allowable cut-off. That is the relevant breach and it is that to which that evidence must be relevant. It is plainly not, when one looks at the evidence.

PN76

Now, I'll take your Honours to the transcript, at paragraphs 174 and following. Perhaps I'll take you to 173, just at the bottom of the previous page, first. Captain Rust states, at paragraph 173, he was aware of being tested the following day. And at 174 it was suggested to him that he went to bed, this is an uncontroversial suggestion because it was set out in his witness statement, at paragraph 99, that he went to bed at 9 o'clock because he was conscious of the possibility of being tested for alcohol the following morning.

PN77

Yes, by that I mean that is my normal routine on joining a ship.

PN78

You were thinking clearly enough to go to bed early because you were conscious of the possibility that you might have been tested the next morning?‑‑‑Yes, I was.

PN79

You were thinking clearly enough, at that point in time, to realise that you might be in a bit of trouble the next morning?‑‑‑At that time I didn't think I was going to be in trouble, no.

PN80

You woke up at 5 o'clock in the morning?‑‑‑5 o'clock it was, yes, sir.

PN81

You would agree with me that when you woke up you still felt a bit under the weather?‑‑‑I woke up at 5 o'clock without hearing the alarm. I was in good shape that morning.

PN82

You were in good shape?‑‑‑Yes.

PN83

Captain Rust, you blew, at quarter past 6, when you were tested you blew 0.047, that was an hour and 15 minutes after you woke up. Your body had an hour and 15 minutes to process an amount of alcohol and at 6.15 you blew 0.047. Your evidence is that at 5 am you were in good shape?‑‑‑I was in good shape, yes.

PN84

You had an hour and 15 minutes to think about the prospect that you might have been over the 0.02 limit?‑‑‑Yes, I did.

PN85

You had an hour and a quarter to think about how you might deal with that, what you might do?‑‑‑Yes, I had that time available to me, yes.

PN86

You agree with me that you could have self-reported, that is, you could have put your hand up first thing that morning and said, "I think I might be over the limit"?‑‑‑I did not at that time, but with hindsight absolutely yes.

PN87

At the time you chose not to do that?‑‑‑That's correct.

PN88

With hindsight you say you should have?‑‑‑Yes, sir.

PN89

Now, what's very clear in that passage of the transcript is that whatever impact Captain Rust might have had arising from the 2014 investigation on the afternoon before that caused him to drink 10 full-strength beers, he was thinking clearly enough and in good shape the following morning. On his own evidence he chose to run the risk. There is nothing in the 2014 investigation that impacts on that issue at all. That is the critical matter that was relevant, for the purposes of 387(h).

PN90

Of course, in my submission, the fact that Bissett C placed great emphasis on that matter, critical emphasis, given what Bissett C says at paragraph 127 of the decision that were it not for that matter her decision might well have been different, that that falls precisely foul of the approach that's set out in Harbour City Ferries v Toms. Now, we don't advance that simply on the basis of, "Well, there are a number of factual parallels in that case and this one," although there are. It is really at that level of principle that we advance the error.

PN91

Of course those submissions were put to Bissett C at first instance, you'll see that in the transcript, in the oral closing submissions. That is, Toms is not simply relevant factually but it actually does set out the sorts of matters that you can and cannot have proper regard to. Nowhere in the decision is there any discernible attempt to grapple with those submissions, if they were to be refuted. Given the centrality of that issue to the ultimate outcome, one would have expected to see something in the reasons to account for it. So that's what we say about ground 1(a).

PN92

Grounds 1(b) and 2 can be dealt with pretty clearly together. That is, even if these matters were relevant to the decision, to Captain Rust's decision to report for as fit for work on the 6th, that is the nature of the breach for which he was ultimately dismissed, they were of minimal relevance only.

PN93

Now, in our outline, at paragraph 13, your Honours will see footnoted a very great deal of cases, at footnote 18, that are examples of conscious of breaches of drug and alcohol policies in safety critical environments. Whilst, of course, each one of these cases involves their own factual circumstances and you'd be a foolish advocate to suggest that there's some hard and fast rule that applies in such cases, one can discern a general approach to weighing the seriousness of a conscious drug and alcohol breach, in the context of a safety critical environment. It doesn't mean it can never be outweighed by 387(h) factors, but it's a serious issue and those cases bear that principle out. I won't take your Honours through them, they are all referred to there and there are copies in the folder.

PN94

Now, Bissett C was taken through at least a selection of those cases in the oral submissions in closing and your Honours will see that at paragraphs 1714 to 1758 of the transcript.

PN95

When one reviews the totality of the findings that Bissett C makes, up to the point in time where the needle moves, on the basis of the 2014 investigation, those findings which I stepped your Honours through at the outset, that is, a conscious breach of a critical safety procedure by a senior manager, in fact the most senior operational manager on board the ship, one who's charged with the safety of his crew and piloting a vessel around the ocean for weeks at a time. It becomes clear that the findings around the 2014 investigation, whether by themselves or in conjunction with the other 387(h) factors considered, was given manifestly excessive weight.

PN96

Your Honours will find, in the bundle, another Full Bench decision reviewing a first instance decision of Bissett C, that's Metro Quarries v Ingham, which you'll find at tab 11 of your folders. Do your Honours have that before you? So this was a decision of Watson VP, Hamilton DP and Johns C, again reviewing a first instance decision of Bissett C. In my submission this is a clear example of the same type of error.

PN97

There was some similarities in the factual substratum here. The employee was dismissed, ultimately, for a very slight breach of a drug and alcohol policy, he returned a breath alcohol content result of 0.0006, but in circumstances where here was an absolute zero cut-off. However, the employee was sitting on a first and final warning for a breach of a safety policy, an electrical tag out policy, a year prior.

PN98

What was found was that his breach of the drug and alcohol policy was substantiated, there was no procedural defect in the investigation itself, in fact there was some evidence that this employee had a somewhat dismissive approach to safety, but what tipped the scale on the harshness factors was some identified defects in the investigation into the previous incident that gave rise to the first and final warning. It's on that basis that Bissett C found the dismissal to be harsh.

PN99

Now, the Full Bench approaches the analysis this way, and you'll see this at paragraph 23 and following. It's paragraph 25 that I take your Honour's to. At 25 essentially the Full Bench observes that:

PN100

There was an error in Bissett C's approach of reviewing specific elements of the employment history to determine whether a discrete element may be unfair or unjustified.

PN101

You'll see that at 25:

PN102

An overall assessment needs to be made in relation to the statutory test of whether the dismissal is harsh, unjust or unreasonable. The task is not to review specific elements of the employment history to determine whether a discrete element may be unfair or unjustified.

PN103

At 26:

PN104

Although findings were made by the Commissioner in the extract set out above, regarding Mr Ingham's conduct, that suggested the dismissal was a reasonable response to his conduct and constituted a valid reason for dismissal -

PN105

Pausing here for a moment, that is precisely the scenario that we see in the decision in our case, up to the consideration of the 2014 investigation. Back to 26:

PN106

These considerations do not appear to have been properly taken into account when weighing all of the relevant circumstances and reaching an overall decision on the fairness of the termination.

PN107

And 27:

PN108

In the analysis of the Commissioner the breaches of safety procedure, the poor attitude towards safety and the loss of trust of the employer are significant findings against Mr Ingham. Clearly the company wanted to change the unsatisfactory attitude towards safety that it had inherited from the previous owner.

PN109

On that last point, of course, there was very clear evidence below of there being a step change in Farstad's approach to managing drug and alcohol policy breaches.

PN110

28:

PN111

There does not appear to be clear link between the findings made by the Commissioner and the outcome reached. The Commissioner's ultimate decision appears to us to be counter-intuitive.

PN112

In particular the Full Bench takes issue with the Commissioner's weighing of that 2015 investigation. You'll see that at 33, or 30 to 32 deal with that incident itself. The Full Bench finds that, in fact, there was no error:

PN113

Mr Ingham and his representative at the meeting to discuss the matter and is properly viewed as conduct warranting a serious warning. This reinforces our view that assessing the fairness of a dismissal in 2015 by reference to the circumstances of a first and final warning in 2014 distorted the consideration of the criteria relevant to the finding of fairness.

PN114

Again, in circumstances where the allegations put against Captain Rust in 2014 were substantiated, after a full external investigation, ultimately no disciplinary action was taken against him and he returned to work. And, on his own evidence in October 2015, he's happy to be back in command of a new vessel. It's very difficult to see how that factor can be elevated to effectively determine of his status. It's precisely the same error.

PN115

That lack of a clear link between the findings that Bissett C makes, right up until backing the decision, serious findings on valid reason, no procedural unfairness, matters concerning Captain Rust's longstanding and long service cut both ways. On one he has a long period of experience, but equally he's an experienced Master and he's expected to know and enforce the policies. The elevation of this issue to the determinative status is precisely the sort of manifestly unreasonable outcome to which the second limb of House v The King is directed. Of course these matters are at least adverted to in the decision, it's not as if they're sitting there inscrutably, but the issue we have is that it's impossible to see how one could reasonably give that that level of weight.

PN116

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock, the last sentence in paragraph 127 of the decision:

PN117

Were it not for the failure of Farstad to close off -

PN118

That wasn't the Commissioner's finding, was it? Isn't it the Commissioner's finding that the incident hadn't been closed off in Mr Rust's mind?

PN119

MR POLLOCK: That's exactly right, your Honour. The finding was a subjective one. There is some criticism levelled at Farstad for returning Captain Rust to the same vessel where he would have to deal with the same individuals, but I don't think that criticism is put particularly highly in the decision. In any event, there's nothing particularly unusual about an employee returning after suspension in an investigation having to go back into the same workplace or the same work team, it happens every day of the week.

PN120

COMMISSIONER SAUNDERS: The 2014 report made a number of recommendations, were they complied with?

PN121

MR POLLOCK: There was not a great deal of evidence on that matter, except what my learned friend will likely put, that the evidence that there was, from Mr Rust, to the effect that there was no formal mediation conducted, we accept that. I think the submission that we would make to that, Commissioner, is that, again, whether or not those matters were closed out in the way in which the external HR investigator recommended in neither here nor there. It's not the company undertaking to take those steps, for one. It may well be that an internal investigator says, "You should so X, Y and Z." The company might have very good reasons as to why they wouldn't take that approach. But, in any event, even if those were good steps to take and even if those things weren't, in fact, put in place, it doesn't change the fact that over two years lapsed, subsequently Captain Rust moved to a different vessel and was working with a different team and a year later, in October 2015, his response, albeit that he still effectively maintains his innocence and takes issue with the process, his response is to the effect that he's putting it past him.

PN122

COMMISSIONER SAUNDERS: The evidence was that this repot was given to Captain Rust, I think in about June of 2014.

PN123

MR POLLOCK: That's right.

PN124

COMMISSIONER SAUNDERS: Did the evidence reveal what communication was made to him at that time? Was he just given the report or was he given the report and told something else?

PN125

MR POLLOCK: He was given the report, I think he was emailed the report. I don't think there was - on my recollection there was no evidence around particular follow up meetings, other than that he was told, "Your suspension is lifted and you're going back to the vessel.

PN126

COMMISSIONER SAUNDERS: Did the covering email tell him that?

PN127

MR POLLOCK: I'll need to review that, Commissioner, bear with me just one moment.

PN128

COMMISSIONER SAUNDERS: You can take that on notice.

PN129

MR POLLOCK: My learned friend tells me there's no written communication in the evidence to that effect. That's all I propose to say about grounds 1(a), 1(b) and 2, unless there's anything further I can assist your Honours with on those grounds. I propose to move on to ground 3.

PN130

Now, ground 3 challenges the findings that are set out at paragraph 122 of the decision. There are two principle findings in that paragraph. The first is this:

PN131

It is not apparent that any other disciplinary outcome was considered for Captain Rust. Whilst I accepted above that Mr Scott -

PN132

The decision maker:

PN133

considered Captain Rust's response prior to making the decision to dismiss him I am not convinced that he considered if rehabilitation (as is allowed under the Offshore Policy) or any other penalty was a possibility. It appears that the consideration of penalty was binary � dismissal or no dismissal. In this respect the consideration was, in the circumstances, too narrow.

PN134

COMMISSIONER SAUNDERS: Mr Pollock, was it ever put to Captain Rust, by you or anybody else - sorry, was it ever put to the decision maker, by anybody at the hearing, that he did not consider rehabilitation?

PN135

MR POLLOCK: It was put on a number of occasions that he had effectively, once he found out that there was a breach of - a substantiated breach of the policy then that was it. Effectively he'd made his decision before giving Captain Rust the opportunity to respond. That appears in a number of location in the course of the cross-examination.

PN136

Now, Mr Scott's responses were very clear, that whilst he gave Mr Rust the opportunity to respond and took those responses into account, he considered that any breach of the drug and alcohol policy by a Master was serious and would, ordinarily warrant dismissal. That was hammered home, and I can take you through it, Commissioner, it was hammered home in quite a number of angles in cross-examination below and Mr Scott's evidence was consistent in that regard.

PN137

COMMISSIONER SAUNDERS: My question is directed to the fact that there seems to be a finding that the decision maker did not consider if rehabilitation was a possibility, was that proposition put to him?

PN138

MR POLLOCK: As I recall, I'll just pull up the relevant section of Mr Scott's cross-examination, it was put to him, this is at 1218 of the transcript, put to him in general terms there, 1218:

PN139

Do you accept that the relevant policies give you a discretion about what sanctions to impose, in the event of a breach?‑‑‑I do.

PN140

That means you can choose to terminate or not terminate?‑‑‑Yes.

PN141

Now, that doesn't expressly refer to rehabilitation, for example, but it does avert, in general terms, to there being some outcome short of dismissal.

PN142

Given that there were a number of lines taken, I just want to make clear that I'm not misstating the evidence, though I'm sure my learned friend will correct me of that. One of those areas of attacks is at 1946 and 1947, but there it's not suggested that rehabilitation was a possible approach. Similarly, at 1126 and 1128, but again rehabilitation is not referred to. I think that's the - that's the extent of it. My instructor has just done a text search on the electronic version of the transcript and there doesn't appear to be any reference to rehabilitation in the cross-examination of Mr Scott.

PN143

Now, those two findings, or related findings, that is, it wasn't apparent that any other disciplinary outcome was considered, and that the approach was essentially binary, dismissal or no dismissal, those findings were irrelevant considerations, in our submission. That's for a number of reasons.

PN144

Firstly, the evidence was very clear, and I don't think there's any dispute about this, Farstad's policies clearly proscribe dismissal as a possible outcome. That's found in a range of places amongst the multi-layered policies that applied in this context. There was nothing in those policies that mandate consideration of alternative outcomes. There is nothing, for example, setting out a graded approach, a strike 1, strike 2, strike 3 type scenario, nor is there anything mandating consideration of a certain lesser disciplinary outcome and only if that's considered manifestly inappropriate that one would progress to dismissal. Of course, Bissett C's analysis might have been different and might have been a relevant consideration had there been that sort of evidence, but there was not.

PN145

The second point is this, Mr Scott, the decision maker, considered that dismissal was the appropriate disciplinary outcome here. That evidence was, of course, consistent with what Mr Homsey and Mr Robinson said around their views about the breach of the drug and alcohol policy by a Master of the ship.

PN146

Now, simply considering that dismissal is the appropriate outcome on that relevant set of facts doesn't indicate, necessarily, a binary approach, dismissal or no dismissal. Rather, it simply suggests that Mr Scott formed a view, after having considered the factual circumstances, that is, a conscious breach by a Master leading to a breath alcohol concentration result over twice the cut-off, was sufficiently serious to render dismissal the appropriate outcome.

PN147

Now, that was something that was plainly open to him, on the facts. It's also consistent with Bissett C's findings that Captain Rust's misconduct amounted to a valid reason for the dismissal.

PN148

What Mr Scott wasn't required to do was to give some kind of extensive consideration, going through the motions, of checking off every other possible lesser disciplinary outcome in order to reach the view that dismissal was the appropriate course. It doesn't suggest that a dismissal can only be fair when one has expressly turned their mind to everything short of dismissal, that would be an absurd scenario. Some forms of misconduct are sufficiently serious that once proven dismissal would be, in the ordinary course, the appropriate outcome, save for, of course, hearing whatever mitigating factors the employee wishes to raise.

PN149

What Bissett C's approach in those findings that are made at 122, what that amounts to really is an attempt to stand in the shoes of the employer. What paragraph 122 of the decision reveals is that Bissett C had formed her own view that notwithstanding the misconduct was a valid reason for dismissal she might have reached a different view. She might've have imposed something less. She might have imposed a first and final warning and rehabilitation for example.

PN150

Paragraph 122 reveals that in the Commissioner's view Mr Scott should have perhaps given some greater consideration to those outcomes but of course that type of analysis is precisely what the Commission is erred not to do in this case. They are not to stand in the shoes of the employer and impose the approach that they might have taken.

PN151

DEPUTY PRESIDENT GOSTENCNIK: Another reading of 122 is that the Commissioner is simply forming a view that the termination or the dismissal was for a valid reason was a disproportionate response and therefore harsh as described by the High Court in Byrne and Frew. It's not standing in the shoes of the employer; it's making an assessment as to whether or not the dismissal was harsh.

PN152

MR POLLOCK: Yes. If that were the appropriate construction of 122 then I don't think you could cavil with it, but there is nothing in paragraph 122 or more broadly in the decision that supports the view that Bissett C found objectively that the dismissal was disproportionate. If anything, the thing that tips the factor towards harshness is what's found in 127, that is, the impact of the 2014 investigation.

PN153

DEPUTY PRESIDENT GOSTENCNIK: But isn't that precisely what the Commissioner is doing at 126? She says, "Whilst I'm satisfied he engaged in the conduct", et cetera:

PN154

I find on balance, that the decision to dismiss him was, in the circumstances harsh.

PN155

That seems to me to be a reference in the circumstances that she's just discussed at 118 through to 124.

PN156

MR POLLOCK: I think that's a fair observation, your Honour. I think one does then need to read 126 in the context of what then follows in 127 because that then sets out, well, which of those factors was ultimately - carried the day.

PN157

DEPUTY PRESIDENT GOSTENCNIK: I accept that. Then you go back to your earlier ‑ ‑ ‑

PN158

MR POLLOCK: Yes, of course.

PN159

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand that. Yes.

PN160

MR POLLOCK: So I think the broad submission simply is there was no error in Mr Scott's approach in not going through a box checking exercise of every lesser possible disciplinary outcome that might have been open to him. Perfectly open on the face of the facts that he found in that investigation and the admitted contraventions of Captain Rust that dismissal was the appropriate outcome then, and there's no relevant 387(h) factor that's enlivened by the fact that he didn't go through some expressed box checking exercise.

PN161

Moving to ground 4, unless there's any further questions with respect to ground 3, your Honours?

PN162

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN163

MR POLLOCK: Ground 4 concerns the choice that Captain Rust made not to self-report on the morning of 6 October. You'd recall when I stepped you through a short while ago, your Honours, that passage of cross-examination taking Captain Rust through the morning of the 6th from the point in time that he woke up at 5 am through to the point in time that he undertook the first of those BAC tests at quarter past 6.

PN164

As adverted to in ground 1(a) (b) and 2 that failure to self-report on that morning was the critical aspect of his misconduct. We deal with this at paragraph 17 through to 20 of our outline, and what's observed there, or in fact there's an extract there from paragraph 95 of the Commissioner's decision. The Commissioner, at least at that point, considered this to be a matter of some significance. The Commissioner finds that there are a number of courses of action open to Captain Rust upon having the reaction that he did to seeing the relevant employee at the airport the day before. He could have refrained from drinking. He could have contacted the relevant manager and advised him he was not able to work to ill health because of the anxiety, or he could have advised the next day that he could not report for duty because he was unwell. He did none of these. Of course, Captain Rust conceded in cross-examination that he was in good shape that next morning, and that he chose not to self-report, but in hindsight he should have.

PN165

That decision not to self-report was something that Mr Scott took critically into account in his decision to dismiss. You find that at paragraphs 1229 to 1233 of the transcript. I'm para-phrasing here but essentially Mr Scott's evidence was that had Captain Rust put his hand up and self-reported then the outcome would've been quite different but that he chose not to do so and here we all are. That was the effect of that evidence at 1229 to 1233.

PN166

Of course that decision to elect not to self-report has been a consideration that was critical in a range of other cases. That of course was a critical consideration in Harbour City Ferries v Toms. You'll see that at paragraph 28 of that decision. That is the only relevant factor that the Full Bench found to be relevant to the misconduct was the use of marijuana as pain relief in that case; similar here, the use of alcohol to self-medicate. The Full Bench in Harbour City Ferries v Toms then, in the same breath, observes the consequence on that explanation is an explanation for why he chose to report for work in that state; precisely the same consideration arises here, and there is no adequate explanation for that.

PN167

Your Honours will also see that form of consideration considered critical in Clayton and Coles Group Supply Chain Pty Ltd [2016] FWC 4724. That's at paragraph 109. I won't take you to that now but suffice to say in that case that failure to self-report was similarly considered to be of importance.

PN168

Of course the Commissioner refers to these matters in the decision and at 95 initially gives them some significant apparent weight, but when one gets to the end result those matters which, in my submission, are critical appear to have been largely if not completely ignored in the weighing process, and that is a House v King error whether one views it through the lens of failing to take into account a relevant consideration or giving manifestly inadequate weight to a relevant consideration such that the discretion was miscarried.

PN169

I propose now to move grounds 5 to 7 unless your Honours have some questions on ground 4?

PN170

DEPUTY PRESIDENT GOSTENCNIK: No. Thank you.

PN171

MR POLLOCK: Grounds 5 to 7 involve essentially the same fundamental error which is a failure to give any or any proper weight to Captain Rust's failure to disclose prescribed medications which you're required to do under Farstad's policies. It arises in two ways under these grounds; the first is at a general level in the course of his employment or certainly the periods for which he was prescribed certain anti-depressant medications. That's ground 5. Then ground 6 and 7 deal with this in the context of his conduct on the night of the 5th and the morning of the 6 October, that is, the impact of drinking 10 beers on his physical state in the context of taking those medications.

PN172

Moving first to ground 5; there are a number of key pieces of evidence that need to be considered here when approaching this ground. The first is the prescribing information for each of Pristiq and Fluoxetine, the two medications that Captain Rust took at various points in time. First it was Pristiq and then he moved on to Fluoxetine in the three months immediately prior to the alcohol incident.

PN173

Prescribing information sets out a range of side effects of those medications variously including insomnia and fatigue, restlessness, poor concentration, uncontrollable shaking and blurred vision. Each of the sets of prescribing information expressly directs patients to avoid operating heavy machinery until they're certain of no adverse side effects. The prescribing information for Pristiq recommends that patients on anti-depressants generally should be monitored and observed closely for suicidality and unusual changes of behaviour especially during the initial few months of a course of therapy or at times of dose changes.

PN174

In cross-examination Dr Wright, who was the only relevant expert here, agreed with the importance of that approach with respect to both Pristiq and Fluoxetine. It's also not in dispute that Captain Rust commenced Pristiq and Fluoxetine at various times throughout his employment and that he changed doses of those medications throughout those periods. There were times when on the manufacturer's warning and on Dr Wright's evidence that he should have been observed closely for changes in behaviour amongst other things. Instead he was captaining an ocean going ship for weeks at a time without a doctor or some kind of psychiatric specialist. Of course, Farstad's policies expressly required Captain Rust to disclose these forms of medications, or any form of prescription medication, prior to boarding a Farstad vessel, and Captain Rust conceded in cross-examination that at no stage did he do so. Again, I think in his reply statement he says that he didn't, and with hindsight he should have.

PN175

The rationale for that sort of policy position of course is pretty unassailable, and one sees that articulated at paragraph 866 of the transcript.

PN176

DEPUTY PRESIDENT GOSTENCNIK: Sorry, which page are you directing us to?

PN177

MR POLLOCK: I'm sorry, this is appeal book 105.

PN178

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN179

MR POLLOCK: This is the cross-examination of Mr Homsey. It was suggested to Mr Homsey that the policies don't tell people that they have to disclose everything. Mr Homsey says:

PN180

You've got a requirement to disclose everything and then you also have a requirement to be able to present at work. If you're concerned about whether you can actually be at work, depending on the treatment that you're on, you need to talk to your doctor about that. When you're actually at work though you need to disclose to the Master so that they're aware of what medications you're on, and there is a variety of reasons for that, also including that if they need to advise, for instance, and we've had this before, if there is an injury or a serious illness on board the Master will have to relay that on to paramedics, doctors, et cetera. They need to be across what people are on. Also since the Master has responsibility for medically treating personnel on board before we can get, say, a paramedic down, rig medic etcetera, they've got to be across it. That's why we have a disclosure. Also the company has to be assured that, you know, we're presenting our workforce in a fit and compliant condition.

PN181

That relevant policy requires crew members to disclose to the Master. It requires Masters to disclose to the, as I recall, the group fleet director. Those considerations are only even more critical for the Master in circumstances where it's the Master who has ultimate control over the safety of the ship.

PN182

Despite that evidence what Bissett C observes is that that policy requirement was "observed more in the breach" and ultimately Bissett C drew no adverse inferences from the matter. Whether that's intended to mean draw no adverse inference as against Captain Rust for failing to disclose is not entirely clear.

PN183

DEPUTY PRESIDENT GOSTENCNIK: That's the way I would read it.

PN184

MR POLLOCK: That's the way I would read it too, but there are a number of ways it could be read. If that is ‑ ‑ ‑

PN185

DEPUTY PRESIDENT GOSTENCNIK: Although she earlier finds at 117 that a failure to disclose was a breach of the policy.

PN186

MR POLLOCK: Yes. That's right. On a review of the evidence, your Honours, the only evidence that could fairly support a conclusion that the policy was "observed more in the breach" was Captain Rust's own evidence to the effect that medication had only been disclosed to him a handful of times in the course of his career.

PN187

What Bissett C failed to have regard to, or at least there's no reference in her reasonings, to that evidence is this; the evidence of both Homsey and Scott was that what Captain Rust had described wasn't their experience, but rather that they were somewhat concerned about Captain Rust's evidence to the effect that there had been only one or two disclosures to him in the course of his career because it indicated that perhaps he'd failed in his responsibility to question the crew about their medications prior to boarding, that is, that the low numbers of disclosures were perhaps attributable more to Captain Rust not asking the questions of his crew as he was required to do rather than there being some widespread culture that employees don't disclose when they are required to disclose. You'll see that evidence of Mr Homsey and Mr Scott at paragraphs 875 to 879 of the transcript for Mr Homsey, and paragraph 1295 for Mr Scott.

PN188

So, in my submission, of course those were not matters which were considered by Mr Scott in reaching his decision to dismiss; those were matters which only came to light in the context of the evidence in these proceedings. There is some criticism that's levelled from my learned friend to suggest that, well, the language of Mr Homsey and Mr Scott was about possible breach and so these things can't be relevant here and no steps were taken to investigate them. Well, that submission really takes my learned friend's case not very far. Of course the employer's witnesses are going to couch their evidence in terms of possible breach, because the matter has not been investigated, and the reason why the matter has not been investigated is because well, it only came to light some months after he was dismissed. That evidence doesn't support a view that somehow Farstad would have simply swept this stuff under the carpet and failed to take it seriously had it been aware of those matters at the time, but rather on the whole of this evidence, that is, the evidence of Mr Homsey and Mr Scott in addition to what Captain Rust says there is no proper basis for a finding that the policy was observed more in the breach and, in my submission, those were matters which the Commission informing its own view as to whether or not there were facts existing at the time of the dismissal that formed a valid reason for that dismissal these things were in the mix. Of course they don't take any � we don't suggest for a moment that they are somehow more serious than the breach of the drug and alcohol policy returned by the BAC test results, but they are things that the Commission needs to take into account. They're not things that the Commissioner could fairly draw no adverse inference whatsoever about.

PN189

That's what we say about ground 5. Ground 6 and 7 concern those matters in the context of 5 and 6 October. I draw your attention, your Honours, to paragraph 27 of our principal outline. This is behind tab 1 in our folder. There I summarise the relevant evidence of Dr Wright, the relevant expert here, and that evidence was to the effect that practitioners are directed by manufacturers of Pristiq and Fluoxetine to advise patients to avoid alcohol whilst taking those medications, and the reason for that direction is because a combination of alcohol and anti-depressants like Pristiq and Fluoxetine can exacerbate some of the impairing effects of those medications. That is an important point. That is something that the GP, Dr Chatfield, disagreed with. Her evidence was, well, primarily the impact of drinking alcohol was to diminish the efficacy or effectiveness of the medication itself, that is, it will do less good rather than the evidence of Dr Wright, which was, well, that's the case but also it is possible that it could impair negative side effects of the medication - exacerbate those impairing side effects. Those concessions of course are found at transcript at 1591 and 1606 to 1607.

PN190

Dr Wright was also given the hypothetical which was in fact the facts of this case but taking to him in a hypothetical that drinking 10 full strength beers whilst taking an anti-depressant like Pristiq or Fluoxetine could possibly have a very real risk of exacerbating the impairing side effects of those medications. He agreed that it was possible, and he also agreed that it's very difficult to predict how severe those side effects might be, and I think there's something quite revealing in the transcript at 1606. I'm sorry, your Honours, it is in the passage from 1590 through to 1595. 1591:

PN191

So you would agree that there is a risk in combining alcohol and an anti-depressant like Pristiq. There is a risk of worsening the side effects of Pristiq?‑‑‑It's possible but, you know, it's a bit of counsel of perfection I think. In the real world, you know, people sometimes use alcohol with anti-depressants and they get away with it.

PN192

You can get away with it?‑‑‑Mm.

PN193

Then he was taken to the hypothetical. 1595:

PN194

Of course you wouldn't nor would a patient be able to predict precisely how severe that added or exacerbating factor of the alcohol might be?. You wouldn't know precisely. You couldn't predict it?‑‑‑No, you can't. It's hard to predict.

PN195

Then the same propositions are put to him with respect to Fluoxetine, that is, the medication that Captain Rust was taking at the time of 5 and 6 October, and you'll find that at 1603 through to 1607. The same concessions are made with respect to that medication.

PN196

So that evidence is critical in circumstances where Captain Rust had drunk 10 full strength beers on the night before. He conceded that he knew he could be tested the next morning. He read the prescribing information. He was aware of side effects. Despite those things he had 75 minutes from 5 am to 6.15 am to decide whether or not to self-report, both with respect to the alcohol that he drank the night before, and to the fact that he was on anti-depressants and the interaction with alcohol of which may impair the effectiveness of that medication and also could exacerbate the impairing effects.

PN197

When you consider all that evidence in totality on any reasonable view that amplifies the seriousness of Captain Rust's misconduct. That's of course not the approach that we see Bissett C in fact taking. Rather Bissett C appears to have accepted Dr Chatfield's evidence that alcohol was more likely to have an adverse impact of the effectiveness of the anti-depressant medication. Of course, Dr Wright also gave evidence that that would be a possible outcome but Bissett C's approach seems to be well, both of those doctors agreed that it would diminish the effectiveness of the medication therefore I can put aside the evidence that it may also exacerbate the impairing effects.

PN198

There was no basis for her to do so, and that's so for two reasons; well, firstly it amounts to effectively displacing Dr Wright's expert evidence. He was a relevant expert. Dr Chatfield accepted in cross-examination that she was not; she was a GP. Of course the rules of evidence don't strictly apply here, but let's assume for the moment that they did. Would a GP's evidence on these sorts of matters be admissible as expert opinion? There'd be a very real argument that it would not be a specialised field of training, study or experience. Even if it were admissible it would be a very serious argument that the weight to be attributed to that would have to give way to the weight of the relevant expert. Of course, this Commission, although not bound by the rules of evidence, still conducts itself in a judicial manner and has regard to those rules in considering questions such as weight, and there is nothing on the fact of the reasons which sets out why that critical piece of Dr Wright's evidence was apparently disregarded.

PN199

Secondly, let's assume for the moment that Bissett C was right to find that on the medical evidence the interaction of alcohol and anti-depressants were more likely to impair the effectiveness of the anti-depressants. Let's assume that that's the case. Even if that were as far as the evidence went, which it's not, that still wouldn't result in there being no amplification of the seriousness of the conduct. Presumably Captain Rust and others who take medication of these types take it for a reason, that is, there is a very real impact in the workplace of their symptoms for which they take this medication to alleviate. In fact, in Captain Rust's reply statement he refers to the fact that his doctor told him he would be better off in the workplace if he was taking these things.

PN200

Follow that through, in drinking 10 full strength beers on the night of 5 October and reporting as fit for work on the 6th he was presenting as fit for work while suffering a major depressive disorder and whilst the effectiveness of his medication was impaired. Again, if he was a check out operator in a supermarket these things might be given very different weight but the Master of a ship falls into, in my submission, a category of safety critical roles, senior operational roles in safety critical environments much like a pilot of an airplane where a higher standard is required for obvious reasons.

PN201

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock, can I ask you this; the Commissioner's conclusion or perhaps summarising the evidence of the medical practitioners at 124 where the Commissioner accepts the evidence of the doctors, plural ‑ ‑ ‑

PN202

MR POLLOCK: Yes.

PN203

DEPUTY PRESIDENT GOSTENCNIK: ‑ ‑ ‑"who appeared in the matter that the consumption of alcohol whilst on the medications is", and these are the words, "more likely to affect", et cetera. Was that the evidence? More likely?

PN204

MR POLLOCK: That was certainly the evidence of Dr Chatfield.

PN205

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN206

MR POLLOCK: That was the GP. The evidence of Dr Wright, the relevant expert, it's fair to say that he does draw attention to that being the likely outcome and I'll again take you to that passage to be clear on what is evidence was. He does say at 1594:

PN207

Sorry, I'm asking you assume this situation; assume that a patient drank 10 full strength beers on an evening whilst taking Pristiq there could be a very real risk that that would exacerbate the impairing side effects of Pristiq?‑‑‑It's possible. I would be probably more concerned about the impairment of the effectiveness of treatment, and that's the line I usually take with patients.

PN208

Of course you would not or could not predict precisely?‑‑‑No, you can't. It's hard to predict.

PN209

So I think it's fair to say that both doctors did draw attention to impairing the effectiveness of the medication.

PN210

DEPUTY PRESIDENT GOSTENCNIK: It's rather unsurprising given that alcohol is a depressant and it would have a ‑ ‑ ‑

PN211

MR POLLOCK: Of course.

PN212

DEPUTY PRESIDENT GOSTENCNIK: ‑ ‑ ‑countervailing effect on anti-depressing medication.

PN213

MR POLLOCK: I think that's exactly right, your Honour, but the critical piece is firstly there was nothing in � they're not either or scenarios. It's not that you accept that the doctors might have felt that this was the more likely scenario, that you put aside the evidence of exacerbating impairing symptoms. And, secondly, even if you did still the impact on the effectiveness of the medication is important in the context of Captain Rust's role in presenting as fit for work.

PN214

DEPUTY PRESIDENT GOSTENCNIK: But isn't what the Commissioner effectively doing there is weighing the balance of the seriousness of the breach of failure to self-report, that is, the risk of an adverse impact on Captain Rust's capacity to carry out his duties was low, and so that the failure to report the taking of medication, whilst a breach, was in that context not a serious breach? Isn't that ‑ ‑ ‑

PN215

MR POLLOCK: That might be right.

PN216

DEPUTY PRESIDENT GOSTENCNIK: I'm just reading ‑ ‑ ‑

PN217

MR POLLOCK: Yes. I ‑ ‑ ‑

PN218

DEPUTY PRESIDENT GOSTENCNIK: Because if one begins at 117 there's a finding that there's a breach and then the Commissioner goes on to consider some other relevant matters, and perhaps I'm revisiting a view that I expressed earlier that perhaps read in context of the words "ultimately I draw no adverse inference" is in fact a reference to the appellant's apparent failure to provide education on the effect of medications, et cetera which is the second-last paragraph.

PN219

MR POLLOCK: That's the other.

PN220

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN221

MR POLLOCK: I think in my responsive submission on the cross-appeal I think I draw attention to those competing constructions of that passage.

PN222

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN223

MR POLLOCK: But if it is the case that it is ultimately a weighing of well, in context the failure to report that is not that serious and ultimately doesn't weigh in the mix ‑ ‑ ‑

PN224

DEPUTY PRESIDENT GOSTENCNIK: It weighs but it's given a low weight.

PN225

MR POLLOCK: Given low weight in the mix, and the response to that is simply this; firstly, there is nothing apparent on those reasons to be able to conclude that the Commissioner had any or any adequate regard to Dr Wright's evidence around the exacerbating effects of the impairing symptoms, and that, in my submission, was a centrally relevant matter when considering what conclusions to draw from his failure to report the medication.

PN226

DEPUTY PRESIDENT GOSTENCNIK: But doesn't she in fact do that? She says the evidence was that the more likely consequence was the effectiveness of the medication, and rather than having an adverse impact so that it's likely that there'd be an adverse impact. She's not ignoring it; she's comparing the two and finding that on the evidence one is more likely than the other.

PN227

MR POLLOCK: Yes. With respect, your Honour, again that grapples with my submission earlier. It's not an either or. Simply because one is more likely than the other doesn't mean that the other is still a real risk, and Dr Wright accepts that. He accepts that it's a very real risk, and that is something which wasn't open for the Commissioner to simply push to the wayside because the impact on the effectiveness of the medication might've been more probable. So that's the first submission; that it's a failure to take into account or a manifest failure to give adequate weight to a relevant consideration; and, secondly, when one weighs the consideration of that as a whole including both the putting aside Wright's evidence on the exacerbating effect of the impairing side effects, but also the evidence of impacting upon the effectiveness of the medication, given the submissions I've made earlier, ultimately the discretion miscarried, that is, those matters should have weighed in the balance and ultimately the Commissioner's has drawn no adverse findings from them whatsoever.

PN228

DEPUTY PRESIDENT GOSTENCNIK: Yes. I understand the submission.

PN229

MR POLLOCK: Your Honours, that's what I propose to say about grounds 6 and 7. Of course, all of these submissions have challenged various aspects of the reasons and we've dealt in some detail through them. Ultimately there is an underlying theme of course in these submissions that a serious and conscious breach of drug and alcohol policies by a captain of a ship blowing over twice the BAC cut off and in circumstances of no procedural unfairness one would expect to see some very significant countervailing 387(h) factors to displace that. In my submission, as we've seen in the course of all of these grounds what was disclosed on the face of those reasons falls very, very far short of that. It is one of those decisions which, when one reads to the end, the outcome given the findings made are sort of counterintuitive.

PN230

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock, just in relation to the question of disposition, your submissions are in the event that we grant permission to uphold the appeal we should rehear the matter and determine to dismiss the application.

PN231

MR POLLOCK: Yes. That's right.

PN232

DEPUTY PRESIDENT GOSTENCNIK: Why wouldn't the appropriate course be that if we were to find, for example, in relation to the first of the grounds why wouldn't the appropriate course be that the matter to be remitted to the Commissioner to give consideration to the outcome having regard to any findings that were made, given that there doesn't appear to be any contention in relation to the earlier statutory considerations and the findings that the Commissioner has made? Isn't she in a better place than us to weigh in the balance all of those matters given that she had the benefit of hearing all the evidence and seeing the witnesses?

PN233

MR POLLOCK: Yes. Your Honour, in response to that I think when one reviews the reasons this isn't a case where there are submissions flung left and right on credibility and competing versions of events. In the main the factual position is not hotly disputed so I don't think on theory the reasons there are there were benefits that Bissett C might have had in seeing the whites of the eyes of the witnesses that your Honours or perhaps by referral under 607(3) that one of your Honours would be deprived of that benefit. That being said, of course, there would be no impediment to it going back to the Bissett C. The corollary of the submission I just put is that there's been no significant adverse credit findings against witnesses which would make it inappropriate to go back before Bissett C. In my submission, it's simply this; that your Honours have the materials before you. You are not impaired in any significant way compared to Bissett C to be able to rehear the matter yourselves or by way of referral to perhaps one of you, and, in my submission, that would be the most efficient course.

PN234

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN235

MR POLLOCK: But at the same time I can't put it any higher than that. I don't say that there's any inherent unfairness in it being dealt with by Bissett C.

PN236

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Mr Pollock. Ms Doust, before you begin we might just adjourn for five or 10 minutes and the parties can have a comfort break.

PN237

MS DOUST: Yes.

PN238

DEPUTY PRESIDENT GOSTENCNIK: As can we.

SHORT ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋� [11.28 AM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [11.40 AM]

PN239

DEPUTY PRESIDENT GOSTENCNIK: Yes, Ms Doust?

PN240

MS DOUST: If it please, the Commission. I'm more indebted than the Bench may ever know for that break. Can I say that as a general proposition we contend that this is a matter where the Commissioner made a finding as to the existence of a valid reason consistent with section 387(a) of the Act, and the Commissioner also made findings to the effect that the breach was a serious one. She then carried out an evaluation having regard to all of the factors set out in section 387 of the Act, and ultimately found that the dismissal was harsh. We say her approach in her reasons are unimpeachable in that respect that she was called to carry out what's been described by Buchanan J in the Federal Court as a broad evaluative task in weighing those relevant factors. We say unfortunately when the Commissioner came to consider the question of remedy an analysis of her reasons shows that she applied the wrong test at that stage and failed to consider relevant matters.

PN241

I'll deal first of all with the submissions made in the company's appeal, in Farstad's appeal, and if I meander somewhat I hope that the Bench will be merciful. We rely principally upon the written submissions that we filed dated 30 August 2017 in response to these grounds but I wish to make a few comments enlarging on those submissions and also at that same time respond to the matters that have been raised by my friend this morning.

PN242

Can I say at the outset just for ease of reference because it's something that's very simple to deal with, your Honour, the Presiding Member, asked a question about the issue of Farstad closing off the investigation, and a query whether the reference in paragraph 127 really was supported by any conclusion about Farstad's failure or whether that was really just a reference to Captain Rust's state of mind and we refer, in particular, back to the first part of paragraph 119 of the reasons where the Commissioner set out there Farstad again failed to close the matter off, but ‑ ‑ ‑

PN243

DEPUTY PRESIDENT GOSTENCNIK: Yes. I did note that and I meant to come back to Mr Pollock and I thank you for that.

PN244

MS DOUST: I'll come back to some of the detail about that in due course, but I just wish to address that before it slipped my mind, your Honour.

PN245

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN246

MS DOUST: Can I say we dealt with the factual background in this matter in some detail in the submissions we made as to our grounds of appeal at paragraph 11 and following and there are a couple of matters I wish to emphasise in particular just to add to those observations about the history of the matter. The first is this; so far as it is alleged in this matter by Captain Rust that he as a person with an exemplary record, the references that support that view appear in his statement at AB261 which is behind tab 11 of the appeal book, and in particular the matters that we say are of note, and they go to all of the issues that arise in these proceedings are these: first of all when one looks at paragraph (c) one can see that Captain Rust was involved in the development of the Farstad anchoring handling training video. That won Farstad's own safety awards competition. It was entered into Seacare's nationwide 2006 awards. Subsequently won that category, best solution to identified workplace and health and safety issue. So it wasn't simply the case that Captain Rust was recognised by his employer for his safety performance. That was something that went beyond the employment relationship and had been recognised within the industry.

PN247

The next matter that we rely upon appears at paragraph 30 on that page. That's page 261 of the appeal book. At paragraph 30 you'll see he was the recipient in 2012 of the Farstad Safety excellence award presented by the safety manager. So those are two important matters that we say put in context the submissions that were made at first instance about his record and how that was a matter that should weigh into the mix. Those were the matters that were considered by the Commissioner.

PN248

Can I go further, just going back to Captain Rust's outline of submissions on his appeal, and these are the submissions which are dated 11 August 2017. I refer there to the issue which arose in that 2014 allegation, and in the last sentence I refer to the question of a preference not to put all the lives on the vessel at risk to avoid a risk to one. Of course it's clear in the investigation report, I don't wish the word "vessel", in my submission, to be misread as referring simply to the vessel that Captain Rust was the Master of. It was the rig that was also at risk, and the rig with hundreds or over 100 employees on it, that was the dimension of the risk that was being discussed in the meeting in March 2014. So it wasn't simply a question of weighing a risk to one rating on the vessel versus all of the other ratings on the vessels; it was the risk to the ratings involved in that anchor handling process, and the risk that was involved both to life safety and the environment if there was a collision between the vessel and the rig itself. So that gives you a sense of the dimension of the issue and it also gives you a sense as to how an allegation such as that that was advanced as against Captain Rust might be something so destructive of his self-esteem, his sense of self, in effect the allegation was that he had preferred property to life whereas in fact the situation that had unfolded in that meeting was one which gave rise to a dilemma that's often discussed whether one should intervene to save one life as compared with many. So that was the nature of the issue and, in my submission, this Bench would readily understand how an allegation against a serving officer with that history that he would prefer property over life would be something that would a profoundly damaging effect upon him.

PN249

My friend dealt with grounds 1, 1(a) and 2 together and this is really a submission that effectively given the nature of the breach that occurred in circumstances there really could be nothing that could be found to outweigh such breach. In my submission, what one sees, or what was apparent from my friend's submissions was an attempt to re-argue matters of weight that were properly the province of the decision maker at first instance. This was an argument to the effect that none of the matters arising out of the 2014 allegations and investigation could ever come into play to counteract, if you like, the breach which had been found and considered pursuant to 387(a).

PN250

The first ground alleges that the Commissioner erred in taking into account an irrelevant consideration, that being Farstad's purported failure to adequately conclude its investigation into the allegations from 2014. In my submission, that matter was demonstrably a matter which might have been brought to bear by the Commission in its consideration. The consideration pursuant to section 387 is one which asks the Commission whether or not the dismissal was harsh, unjust or unreasonable and it is common place in this Commission that matters such as the personal circumstances of an employee or various other matters might come into play and weigh against the existence of any valid reasons that's found pursuant to section 387(a) hence the Commission commonly considers matters such as the employee's age, length of service, prior record, and the like.

PN251

So we say there can be no substance to the ground that that was in fact an irrelevant consideration. Moving to the second way in which this argument is advanced the company has moved away somewhat from its initial argument that there has to be a direct relationship between the mitigating factor referred to under 387(h) and the valid reason in order for that to be properly given consideration. The way in which this argument now seems to be advanced by my friend was this � I made a note of how it was put � he expressly disavowed the concept that factors taken into consideration must directly relate to the valid reason and said this; really there had to be something that was not unusual or remarkably deficient about the employer's conduct of the investigation of the 2014 matter for it to be a matter which could have been called into play by the Commission in considering that broad evaluative question of whether or not the dismissal was harsh, unjust or unreasonable.

PN252

My submission in relation to that is this; there is nothing in the decision of the Full Bench of the Commission in Harbour City Ferries and Toms that purports to establish any general principle that mitigating factors must, in some way, address the core issue of the valid reason that's being relied upon by the employer. Some of the reasons in that case are to that effect but my friend specifically doesn't identify any paragraph where the Full Bench there purports to set that out as a general principle, and we rely upon the interpretation of another Full Bench in the Mt Arthur and Goodall decision that in fact Toms was a decision that was decided on its own facts by the Full Bench and doesn't seek to articulate any broader principle, and we say there isn't a test that a matter must be so unusual or remarkably deficient in order for it to be a matter that might be considered relevant to the test to be applied, section 387, and in fact what my friend said goes remarkably close to the statement in Parmalat v Wililo which was criticised by the Full Court of the Federal Court. Might I hand up a copy of the some of the authorities referred to?

PN253

DEPUTY PRESIDENT GOSTENCNIK: Ms Doust, for what it's worth you only need to persuade at least me that the question of what is relevant for the purposes of (h) ‑ ‑ ‑

PN254

MS DOUST: Yes.

PN255

DEPUTY PRESIDENT GOSTENCNIK: ‑ ‑ ‑is referrable to the question whether the dismissal is harsh, unjust or unreasonable.

PN256

MS DOUST: Yes.

PN257

DEPUTY PRESIDENT GOSTENCNIK: That need not only be by way of mitigation.

PN258

MS DOUST: Yes. There are still two other Members of the Bench, your Honour.

PN259

DEPUTY PRESIDENT GOSTENCNIK: I understand that.

PN260

MS DOUST: Might I ask behind tab 3 is a copy of that decision. It's Buchanan J in which the other Judges on the Court, that's Allsop CJ and Siopis J joined, and the relevant passage is at page 558 onwards. It refers to that statement I've quoted in Parmalat Food Projects Pty Ltd v Wililo. This is at paragraph 98:

PN261

Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open. ...

PN262

Buchanan J is critical of that in the second part of paragraph 100 on the following page where he says:

PN263

It is arguable that the statement in Parmalat which I set out earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broad evaluative task assigned by the Fair Work Act using the principles I have discussed of 'a fair go all round'. But, in a case such as the present, attention must remain focussed on the significance of the statement for the outcome of the present case, not some other case.

PN264

Ultimately to the extent that ground was advanced in that matter his Honour concluded that it didn't show jurisdictional error or what was advanced by the appellant in that case didn't demonstrate jurisdictional error, but we say his comments about the relevant approach are self-evidently correct.

PN265

Might I, while I have that decision open, just take your Honours back to page 544 of that decision. I'm referring in particular to paragraph 28 through to 30 where his Honour discusses the nature of the assessment that's made pursuant to section 387, and does so in the context of an historical examination of the reinstatement jurisdiction which existed in the New South Wales Industrial Relations Commission and which was a progenitor really of the Federal jurisdiction and we rely upon those comments as to the nature of the task before the Commission, and we say it sounds caution in the face of the attempts by my friend to turn that process into something prescriptive.

PN266

DEPUTY PRESIDENT GOSTENCNIK: I'm sorry?

PN267

MS DOUST: Just the Members of the Bench appeared to be focused on that decision. I was just waiting until you were ready to proceed. Can I say even if there was some sort of a rule that mitigating factors, if you like, or factors to be considered under 387(h) had to have some direct bearing on the issue of conduct that was being considered as relevant to the question of valid reason, we say in this case that test, if it did exist, would've been satisfied because the evidence demonstrated that the conduct of the employer from 2014 onwards was connected or had a role in Captain Rust's state of mind at the time of the events in question and was implicated in that conduct.

PN268

Can I just point to some of the relevant aspects of those matters? The first is this; at paragraph 9 and following of Captain Rust's submissions on Farstad's appeal, these are the later submissions dated 30 August 2017, I've set out the relevant features of the matter from 2014 onwards. First of all, one can see at paragraph 9 that the issue that was raised with Captain Rust upon berthing the vessel on 26 March 2014 was described to him as something that shook the core of management resulting in an untenable situation on Far Scimitar.

PN269

What then occurred is there was a delay � I'm sorry, Captain Rust was relieved of his command at that stage; called interstate to a meeting in Melbourne the following day; was told there was to be an investigation; wasn't told the content of the investigation; wasn't given written advice about being relieved of his command or as to the process. The first time at which he was given some detail of the allegation, the seriousness of which I've dealt with previously, was on 9 April when he was given a shorthand email, and that appears at AB357 of the appeal book.

PN270

So that's what's given to Captain Rust about this matter, and that comes from the third party investigator. Significantly the issue there is simply an allegation as to what was said by him. A report which doesn't have a specific date but which is dated April 2014 and that's on the following page, 358, was produced. That report went well beyond the scope of that allegation and went to issues such as Captain Rust's management style and the view of other members of crew on the ship about that management style, and as you'd noted, Commissioner Saunders, it concluded at page 371 and 372 with a number of steps that were recommended there, in particular, at paragraph 2(5) on page 371 the recommendation that there be a formal mediation between Captain Rust and all on board the Far Scimitar and a review of the anchor handling process in question, and various other steps are outlined on the following page following paragraph 4.

PN271

One thing that is apparent from this report is that the claim that had been made by Captain Rust that he had been called something unmentionable by Mr Ribergaard is set out without any apparent demur and that's at page 368 at the top. One can see there that the allegation one can see in this contention that Captain Rust would rather replace a prop guard than a person, what I referred to earlier is the implication this was an allegation that Captain Rust preferred to look after property in preference to people. That's made clear there. Despite the report having been apparently produced in April, some stage in April, the report was not provided to Captain Rust until 4 June 2014.

PN272

The evidence before the Commissioner showed that in that period of May and June 2014 prior to receiving the report he consulted his general practice reporting that he was suffering from stress as a consequence of the investigation and the suspension. That's at AB431 and 432. It was shortly after provision of the report that Captain Rust was diagnosed with signs of depression and prescribed an anti-depressant. No reason was proffered by the employer in its case as to why there was a delay in the provision of the report. There was no evidence called as any steps it took in considering the report, or any steps it determined to take in consequence of the report. Captain Rust was directed to return to the Far Scimitar together with the same crew despite having raised concerns that his effectiveness would be diminished and there would be an inflammation of the relationship and that's in his statement at AB267, paragraph 68; again, not challenged.

PN273

No arrangements were made for a mediation. There was no formal process of adoption of the report or any sort of adjudication as to how or if it would be implemented. The recommendation to engage an expert to review the anchor handling process that had been the subject of the dispute doesn't appear to have been taken up. No evidence of any sanction imposed on Mr Ribergaard for that verbal abuse. So one must ask, the situation that was described by the designated person ashore on 26 March when Captain Rust was relieved of his command, it was described untenable, what steps were taken to resolve that situation and we say unsurprisingly when Captain Rust returned to the command there were further issues with Mr Ribergaard culminating in an incident in January 2015 where Mr Ribergaard was drunk after the vessel concluded its voyage, verbally abused Captain Rust again and attempted to assault him. He used the same language and that is at AB267 to 268 at paragraphs 69 and 71 to 73 of Captain Rust's statement. Again that wasn't challenged in cross-examination.

PN274

One can see marrying up the medical evidence that Captain Rust again raised this issue with his doctor. That's at appeal book 429, and thereafter wrote to Farstad on 25 January, which is at AB373 setting out his concerns about Mr Ribergaard's conduct both on and off the vessel. That appears from the terms of that letter to have been something that was invited by Farstad. Again, there was no evidence from Farstad to show that any of these concerns were acknowledged or responded to in any way.

PN275

The issue was again raised in October 2015 and this is referred to at paragraph 76 of Captain Rust's statement which is at AB268. Captain Rust wrote again to Farstad and one can see, not only is there a covering email where Captain Rust � and this is at AB375, JR10 to Captain Rust's statement:

PN276

I still feel that the overall handling surrounding �

PN277

This is at the fourth paragraph from the bottom �

PN278

my suspension was flawed and as a result I suffered some damage personally and professionally.

PN279

Going on to the following paragraph, one further:

PN280

With hindsight it was incorrect to have me resume command of the vessel after my suspension especially with the complainant and others still serving on that vessel.

PN281

Captain Rust does, we accept, in the following paragraph do what we say is really an attempt to make a good fist of things and say:

PN282

With the benefit of time I've since recovered.

PN283

Look at how he refers to this matter; "Very hurtful experience". So it's obvious that that was something that had triggered something quite profound in him, and I'll come to the evidence of Dr Wright shortly about the significance of this matter. But just going a little bit further to AB378 one can see that he presents there a detailed response to the report where, at paragraph 1, he takes issue to the investigator's finding. Paragraph 2 he says:

PN284

I was never made aware of allegations 2 and 3. I was not under any realisation that my management style was under evaluation.

PN285

Paragraph 3 he refers again to Mr Ribergaard's conduct and the offensive language he used. He says that that's highly inappropriate, deserves an apology. He refers again to the question of the review of the two man operation, and seems to consider there that that is still a live prospect because, of course, that was an approach that he had spearheaded and developed and that was the matter that was in issue in that process in the meeting that occurred in March 2014. So his attempt to use that particular technique, the 2 x 2 technique, for anchor handling was the question in dispute in the meeting. That was the meeting where Mr Ribergaard had been abusive to him and out of which Mr Ribergaard alleged that Captain Rust had demonstrated more concern for property rather than lives and safety.

PN286

So all of those issues were never properly resolved. That letter of 8 October again there's no evidence and, in fact, Captain Rust's evidence was that his email was not acknowledged either in writing or by phone call, and there was no attempt to contradict that. Where that left him was that he was returned to his position but the cloud that had arisen over him was never really dispelled, and, in my submission, it is imminently foreseeable that in those circumstances his distress and anxiety about those matters might be re-enlivened and indeed when one looks at the report of Dr Wright, which is behind tab 15, and this is the second folder, it says that:

PN287

Captain Rust developed what appeared to be an adjustment disorder with depressed and anxious mood in the context of unfair allegations which resulted in him being suspended which occurred in 2014.

PN288

Paragraph 2:

PN289

A sense of lingering bitterness remained.

PN290

PN291

An encounter with one of the participants resulted in a recrudescence of his symptomology to which he reacted by increased consumption of alcohol. Further recurrence of his depressive illness.

PN292

My friend, I think, used the term major depressive disorder previously in submission. I caution the Bench against adopting that submission. That does not reflect the evidence that was before the Commission. What's referred to here is an adjustment disorder, and one can readily appreciate, looking at the opinion of Dr Wright, how a matter such as that might have caused trauma and might, when unresolved, be the cause of future trauma.

PN293

So it's in that way, we submit, that some of the responsibility in respect of Captain Rust's circumstances on 5 and 6 October 2016 can be properly sat at the feet of Farstad. Of course, Bissett C didn't come to the conclusion that these matters negatived the valid reason that existed, and she was you will see quite critical of Captain Rust's conduct. But if the Bench were persuaded that there needed to be some link, if you like, between mitigating factors and the valid reason it was clearly demonstrated on the evidence before the Commission.

PN294

I think my friend has contended in the submissions that there's nothing in this history that discloses a particularly unusual approach to a disciplinary investigation, and if that is the case, then that is a sad state of affairs, because, in my submission, the history of the matter that Bissett C was confronted with was one that doesn't reflect well upon Farstad at all because it appears not to have taken seriously the issues that were likely to impact on Captain Rust on an ongoing basis in the performance of his duties, and they were serious issues that warranted something substantially more than the approach that ‑ ‑ ‑

PN295

DEPUTY PRESIDENT GOSTENCNIK: Ms Doust?

PN296

MS DOUST: Yes.

PN297

DEPUTY PRESIDENT GOSTENCNIK: Ultimately, and I don't want to mispronounce the cross-appellant's surname.

PN298

MS DOUST: Yes.

PN299

DEPUTY PRESIDENT GOSTENCNIK: You said Rust.

PN300

MS DOUST: Yes, I'm in the same situation, Deputy President.

PN301

DEPUTY PRESIDENT GOSTENCNIK: Perhaps, Mr Rust, you're there, what's the correct pronunciation of your surname? You must have the microphone off. Was it Rust or Rust?

PN302

MR RUST: Rust. That's correct, yes.

PN303

MS DOUST: Rust.

PN304

DEPUTY PRESIDENT GOSTENCNIK: Rust.

PN305

MS DOUST: Rust.

PN306

DEPUTY PRESIDENT GOSTENCNIK: Thank you very much.

PN307

MS DOUST: I apologise for my mispronunciation.

PN308

DEPUTY PRESIDENT GOSTENCNIK: That's all right. Ultimately Captain Rust was dismissed because he, in breach of the company's policy, attended for work ‑ ‑ ‑

PN309

MS DOUST: Yes.

PN310

DEPUTY PRESIDENT GOSTENCNIK: ‑ ‑ ‑whilst his blood alcohol level was above an amount set by the company in its policy.

PN311

MS DOUST: Yes.

PN312

DEPUTY PRESIDENT GOSTENCNIK: The events of 2014 and following might explain why he was drinking the day and night before, or evening before.

PN313

MS DOUST: Yes.

PN314

DEPUTY PRESIDENT GOSTENCNIK: But he wasn't dismissed ‑ ‑ ‑

PN315

MR RUST: There is no sound here.

PN316

DEPUTY PRESIDENT GOSTENCNIK: Can you hear me now? No. Can you hear me now, Captain Rust?

PN317

MR RUST: Yes.

PN318

DEPUTY PRESIDENT GOSTENCNIK: Yes. All right. Ultimately he wasn't dismissed because of the drinking activity the day before, and one can see how the encounter with a former colleague might have caused Captain Rust to be upset and therefore have a greater quantity of alcohol than might usually be the case, but how is that encounter and the 2014 incident relevant to his decision to attend for work?

PN319

MS DOUST: In my submission it doesn't need to be.

PN320

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN321

MS DOUST: But there's a couple of answers to this argument, and the first is this; the breach that was first notified in the letter of 11 October was simply having that blood alcohol reading.

PN322

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN323

MS DOUST: It wasn't advanced that, "You failed to take step A, step B" and so on. That was something that really only came out at the point of cross-examination, and they're matters, in my submission, that might go to colour and indeed the Commissioner gave some weight to those matters at paragraph 95 of her reasons. But the fact that those options were open doesn't render that history irrelevant. That history was clearly implicated in the events the night before, and to suggest that there was some sort of bright line at some point between what happened the day prior and what happened very early on that morning is, in my submission, artificial. But for the events of the day before he wouldn't have been in the position that he was in on the morning of 6 October.

PN324

DEPUTY PRESIDENT GOSTENCNIK: But in the evidence to which Mr Pollock took us about how Captain Rust felt on the morning he makes no mention of being stressed or traumatised � traumatised is the wrong word - stressed or anxious because of events earlier.

PN325

MS DOUST: Yes. But he also makes no mention of thinking that he may have been over the limit, and that is a mistake that - the local Magistrates Courts of this country are full of people who make the similar mistake in the calculation of if one has this many drinks ‑ ‑ ‑

PN326

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN327

MS DOUST: ‑ ‑ ‑how long does one need to leave it before one is right to go, and, in my submission, it is readily understandable that someone who has put themselves into bed at 9 o'clock, stopped all drinking, has had a full night's eight hours sleep, wakes up the next morning feeling okay, would think, "Well, you know, I should be right to go", and that it may not occur to them. That's not saying that it shouldn't have occurred to them; that's still a criticism that might be made of the conduct; that the events of 2014 don't need to be relevant to that part of the process in order for them to be relevant to the overall weighing in my submission.

PN328

DEPUTY PRESIDENT GOSTENCNIK: Yes, I understand.

PN329

MS DOUST: Can I say, while we're on that question about the testing, my friend has made a great deal in his submissions about this being a reading that was twice as much, it was twice as much as the limit, which was the 0.2 limit which, in Australian law, applies to certain particular vehicles and certain classes of drivers. Of course he was below the limit for driving a normal vehicle and one would ordinarily expect if one is at 0.47 at something like 6 o'clock in the morning ordinarily one would be below 0.2 within a matter of a couple of hours, and on the timeline that was before the Commissioner one would expect he wouldn't be anywhere near the vessel for some considerable time after that initial testing was carried out. I don't say that in any way to call into question the Commissioner's adverse findings about the conduct. It's simply, can I say, a moist cloth on the submissions that my friend has made seeking to expand the quality of this breach; seeking to expand the quality of the risk that was involved.

PN330

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN331

MS DOUST: This is not something that, on any view, was likely to affect him going into the voyage for any substantial length of time. Yes, there was a policy, and that needed to be complied with, but my friend's suggestion by use of this description twice that there was somehow two times as much risk or it was a greater level of ‑ ‑ ‑

PN332

DEPUTY PRESIDENT CLANCY: But that rather unpacks the policy, doesn't it?

PN333

MS DOUST: I'm sorry?

PN334

DEPUTY PRESIDENT CLANCY: That rather unpacks the policy.

PN335

MS DOUST: To get into ‑ ‑ ‑

PN336

DEPUTY PRESIDENT CLANCY: It leaves us in a situation where you'd have to then view each particular breach in the policy and how that policy might play out to an individual according to how he or she may have consumed alcohol, their body weight, what role they were performing. Doesn't that leave us in that territory?

PN337

MS DOUST: No, it doesn't, with respect. Obviously when one is dealing with any form of policy breach, and one is considering the fairness of the dismissal one will consider the fact of the breach; one might have a look at the terms of the policy; whether there's some sort of fundamental unfairness or difficulty with the policy but one will also look at the individual circumstances. So, for example, where there's a person with particularly sympathetic circumstances, particularly long service or ‑ ‑ ‑

PN338

DEPUTY PRESIDENT CLANCY: That's a different thing though. That's a different thing to having the reading set at a particular level. You're talking about factors that mitigate the response to that reading.

PN339

MS DOUST: Yes. Can I say, I'm not here to criticise the adoption of 0.02.

PN340

DEPUTY PRESIDENT CLANCY: No, I know you're not, but I'm not sure where you're taking us or trying to taking us with the fact of the reading itself.

PN341

MS DOUST: It's simply this; my friend made a great deal about the fact that Captain Rust's reading was twice the standard and, in my submission, the Commission would make very little of that if anything because that's not something that indicates impairment, and under the policy it's simply the fact of the breach itself. I think I'm in agreement with you, Commissioner, about the matter and simply saying that attempts to expand the nature of the breach by reference to the reading are not available in these circumstances.

PN342

Might I turn to ground 2? I think they are the maters that I wish to put in respect of ground 1(a) which is the question of manifestly excessive weight being given to this matter. I'm sorry, just before I move on from that ground, can I say my friend refers to a passage of Aickin J in the matter of Gronow where his Honour says it's only where the failure amounts to a failure to exercise the discretion that the appeal body will intervene, and we say as to that passage what that does is it restates that it's not the role of the appeal body to intervene on questions of weight and we say that, in this matter, there wasn't a failure by Bissett C to exercise the discretion that was reposed in her. She clearly understood that she had to take into account the reason that was relied upon by the employer. She took into account the submissions advanced by the employer in respect of that breach and then took into account other matters that she found were relevant to harshness. The discretion that was reposed was the discretion to determine whether the dismissal was harsh, unjust or unreasonable and, in my submission, she didn't fail to deal with that question or that discretion at all.

PN343

Can I say that so far as there's a reference in paragraph 95 by the Commissioner to no evidence being adduced which is in about the middle of the paragraph 95, we adopt what fell from you, Deputy President, the Presiding Member, that that's an observation that there was no contrary evidence as to Captain Rust's mental state having been called by the company, but it is also salient to note that in this matter the employer elected not to call Mr Richardson, who's employee X, referred to in the reasons. Mr X referred to there. It sought to include in Mr Homsey's statement, I believe, a second-hand account as to Mr Richardson's account of the day in question. That was the subject of objection by the representative for Captain Rust on the hearsay grounds, and my friend accepted, in that exchange, that it would be difficult for the Commission to give any weight to that matter, and I'll take the Commission to that passage shortly when I turn up the reference. Might I say before I move on from that area as well, there was no attempt to challenge Dr Wright's conclusion in cross-examination as well, and the passage that I referred to relating Mr Homsey's conversation with Mr Richardson is at AB514 and 515. That's paragraphs 71 to 74 of his statement, and the way in which the matter was dealt with before the Commissioner is at AB54.

PN344

At paragraph number 333:

PN345

I couldn't press a submission that you could provide equal weight to what's asserted as to what Mr Richardson has said or the truth of those things as to what Mr Rust has had to say about it.

PN346

So it's there accepted by my friend that there wasn't a basis for challenging Captain Rust's account on the strength of that material.

PN347

So far as my friend says, "Yes, but it's inherently unlikely that these maters would cause Captain Rust to be distressed later in the piece, I rely upon the history that I've already referred to in respect of this 2014 matter and the opinion of Dr Wright". There doesn't ‑ ‑ ‑

PN348

DEPUTY PRESIDENT CLANCY: Sorry, Ms Doust.

PN349

MS DOUST: I'm sorry.

PN350

DEPUTY PRESIDENT CLANCY: That's the diagnosis at AB470, is it?

PN351

MS DOUST: Yes.

PN352

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN353

MS DOUST: Yes. It doesn't appear that there was any adverse credit finding in respect of Captain Rust in this matter and that is not at all surprising because one of the striking aspects of this matter that the Full Bench would observe on looking at the material is his candour. One can see that he was extremely upfront with Mr Homsey shortly after the incident about what had happened on the day. He volunteered the issue of his own history with depression; he volunteered his use of the anti-depressant materials; he put all of that history before the Commission, and one can see in his cross-examination he accepts repeatedly propositions that are contrary to his interest and properly concedes his own errors without attempting, as one can often see in these sorts of matters, to cavil about the nature of the conduct or about the options that were open to him. So in those circumstances, in my submission, it's entirely unexceptionable that Bissett C would conclude that she accepted Captain Rust's evidence about that matter.

PN354

Can I turn to my friend's � my friend puts this a slightly different way on the basis that the Commissioner's conclusion that the dismissal was harsh was plainly unreasonable. We say when the Commission considers all of the matters that I've addressed thus far one can see that it's anything but. The conclusion was well within the scope of what was open to the Commissioner, and I use that terminology because the task of the Commission on an appeal is not simply to indicate its own view about these matters or how it would've found on this evidence; it's really when confronted with that assertion, the grounds that the decision was plainly unreasonable, it would need to be satisfied that the conclusion as to harshness was something that was not open to the Commissioner. In my submission, it was. One can well imagine that other persons confronted with the same facts might have taken a different view, but that is neither here nor there. This was a conclusion that was well open to the Commissioner.

PN355

So those are the submissions as to the first three grounds, 1(a) and (b) and 2. So far as ground 3 is concerned, which is this question about a binary consideration of possible disciplinary outcomes, I think we simply say this; I think we adopt what fell from your Honour, the Presiding Deputy President, about this matter earlier, that one would see the Commissioner's conclusion in that regard simply as commentary upon the fact that there were alternatives that were available to the employer short of termination that would have been appropriate in the circumstances, and my friend has suggested in his submissions that there's nothing in the submissions that mandated a penalty short of dismissal, and, in my submission, that's incorrect. The fact that disciplinary action in general was indicated in the policy was a mandating penalty short of dismissal. There was nothing that compelled dismissal to be the outcome in respect of a breach of this nature. We don't cavil with the fact that it was on the table that it was a possibility, but we do say that it is entirely proper for the Commission to have regard to the availability of alternative approaches such as warnings, such as demotions. Those sorts of steps might be taken by the employer short of dismissal, and that's really - her comment is a comment about the harshness or the disproportionality of the outcome having regard to all of the factors that were before her.

PN356

Turning to ground 4 that is the argument that the Commission erred in failing to take into account or give sufficient to weight to the applicant's decision not to self-report and to present as fit for work. The claim that that matter was not taken into account is given the lie by paragraph 95 where the Commissioner refers to the other steps available to Captain Rust. He could have refrained from drinking; he could have contacted the relevant manager and so on.

PN357

So far as it's alleged that the Commissioner failed to give sufficient weight, and this is at paragraph 4 of the notice of appeal, to that matter, in my submission, that is not a ground which is available. That doesn't demonstrate any appealable error even if the Commission thought it was made out. This is another attempt to re-argue the merits of the matter and to re-argue the weight of matters considered below. It's evident, looking at paragraph 95, that this was a matter that was weighed into or that weighed in the Commissioner's consideration of the breach as to the question of valid reason and at the end of paragraph 100 the Commissioner says:

PN358

To this extent I do not accept that the range of mitigating factors put to me by Captain Rust balance the seriousness of the policy breach.

PN359

So we have there a finding that the policy breach was indeed a serious one and that was a matter that appears to have played a role in reaching that conclusion. It's hard to see how things could get any higher for the company in that regard.

PN360

Grounds 5, 6 and 7 were dealt with together in my friend's submissions, and they go to this question about the failure to disclose the use of the anti-depressant medication. We say that the summary analysis of the evidence of Dr Chatfield and Dr Wright is absolutely correct. When one reads their evidence they're emphasising that it is a concern about the efficacy of the medication which drives, if you like, the warnings about drinking alcohol or combining alcohol with anti-depressants.

PN361

It's clear that my friend's contention that relevant consideration was not taken into account here, again, cannot sit with the Commissioner's consideration of these matters in her reasons. Sorry, I'll just go to the relevant passage and that's at paragraph 124. The Commissioner there says, "I draw no adverse inferences from this matter". In my submission that's referring back to the first sentence of that paragraph. That is a matter where in respect of harshness the Commissioner is not weighing that against Captain Rust we say because it's clear, we say, at the start of paragraph 124 that frames that issue. It follows the consideration the Commissioner's consideration of Captain Rust's record and the references and this was a matter that might have been put as adverse to him on the question of harshness that it might form the basis of some adverse conclusion about his credit or his conduct and ultimately the Commissioner concludes that she doesn't draw any adverse inferences about that.

PN362

DEPUTY PRESIDENT GOSTENCNIK: How does that sit with the final sentence of 117?

PN363

MS DOUST: It's open, in my submission, for a Commissioner to say, just as I've said in relation to the earlier matters, simply the fact that there was a breach doesn't necessarily mean that that breach will necessarily amount to a valid reason. In many cases it certainly will, but a consideration needs to be undertaken. Equally when one comes to the second stage of the process and that is weighing up all of the factors in 387 the fact of a breach may be something that's either taken into account and given weight as against an applicant or it might be something that's given little weight, and here she's made it clear that she doesn't give adverse weight to that matter, and that was a conclusion that, in my submission, was open to her in relation to that particular issue.

PN364

COMMISSIONER SAUNDERS: Do you say she gave no weight to this issue? This breach of policy by failing to declare?

PN365

MS DOUST: No, I don't say that. She certainly considered it. She accepted that there was a breach, and then she's ultimately seen that breach in context and in particular she's referred in the second line there to the limited evidence. Can I just put this issue in context in the proceedings as they evolved? The question of use of anti-depressants medication or declaration of it was not something that was raised in the initial letter to Captain Rust, and that's not a criticism as my friend suggests. It just didn't arise at that time. It didn't arise at the point in time that the respondent made it's submissions in this matter. It didn't submit that this was a breach that should be taken into account on the issue of valid reason under 387(a), and it didn't submit otherwise that this was a matter that had to be weighed into the mix. So this was a matter that only arose � the question about these medications only arise because Captain Rust adverted to that in his evidence. It was the question of the use of the anti-depressant medication referred to in the final paragraphs of the statements of Mr Homsey and Mr Scott where they say, "Well, there's this other issue about the anti-depressant medication and that's something we might need to investigate". Mr Homsey doesn't say exactly how it's relevant. Mr Scott is clearer. He says that that's a question that goes to reinstatement.

PN366

So this issue, and the question of the operation of policies and so on, really only comes into play right at the heel of the hunt. My friend's argument about the combined effect of the medications and so on is something that only arises because of the approach he decided to take in cross-examination of Dr Wright and Dr Chatfield in the evidence that they gave, so you can't complain that that evidence came out from then and he's stuck with it having elicited it from them. But it comes up very late in the piece and hadn't been the subject of a clearly focused argument either during the dismissal process or during the proceedings. It really comes very late in the day.

PN367

COMMISSIONER SAUNDERS: But the failure to declare is a clear breach of the policy. It's not a trivial breach. Why shouldn't it be given some weight in the overall evaluation exercise?

PN368

MS DOUST: Because, in these circumstances, the Commissioner accepted the evidence of Captain Farstad [sic] that there were really these � I think he says there was one case he could recall where there'd been a declaration of this medication. He says in his own case that he returned to work sometime after commencing on the medication so the issue wasn't fresh in his mind. He hadn't, on the medical evidence that was before the Commission, experienced any side effects that might have enlivened his attention to this matter, and when one has a look at the terms of the policy one can see it's a little bit unclear.

PN369

COMMISSIONER SAUNDERS: Is the relevant policy set out in paragraph 49 of the decision?

PN370

MS DOUST: Can I take you to AB589, and 590 really I'm referring to. Is the Bench at 590?

PN371

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN372

COMMISSIONER SAUNDERS: Yes.

PN373

MS DOUST: The matter that I wish to draw particular attention to is this; paragraph 38:

PN374

Employees using prescribed drugs should ask their doctor or chemist what effects the drug or medication may have and if there is a risk of it causing impairment a doctor's letter regarding the effect of the drug must be obtained outlining any limitation on normal duties and presented to Farstad. Farstad will maintain confidentiality however the Master of the vessel must be informed.

PN375

I accept that the terms of the policy properly read, and we've all had the benefit of law school and so we read through all of the paragraphs and so on and take a particular approach to construction, but there's a deal in this policy that might lead someone on looking at it to think, "Okay, this is relevant where there's some sort of limitation or issue", and, in my submission, it's quite understandable that a person put on common or garden variety anti-depressant that it would not occur to them immediately that this is the sort of thing likely to affect their performance. Everyone is aware now that cold and flu medication might show up and suggest that employees are taking methamphetamines or that different other medication might affect their capacity to operate machinery.

PN376

DEPUTY PRESIDENT GOSTENCNIK: But isn't paragraph 39 in a different category and isn't that the relevant ‑ ‑ ‑

PN377

MS DOUST: I accept that goes to a different matter.

PN378

DEPUTY PRESIDENT GOSTENCNIK: And it goes to this matter, does it not?

PN379

MS DOUST: Yes. It goes to a different matter than the suggestion in paragraph 38.

PN380

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN381

MS DOUST: But as to this matter generally I say that the conclusion of the Commissioner, having regard to all of the evidence, that this was a matter where there was education required, so people's minds needed to be directed to these issues, was a matter that would justify her in saying, "This is not a matter that I weigh in the mix against Captain Rust", and one can see, looking at the cross-examination of Mr Scott, for example, that his understanding of the policy wasn't entirely crystal clear, and this is a matter where, in my submission, the decision maker at first instance had the benefit of seeing that, seeing the way in which the evidence unfolded and getting a sense of the understanding in that workforce of this issue.

PN382

So as to that issue again it's a question of weight. Even if the Bench reached the view that they might regard that issue differently this is not a matter which, in my submission, warrants the Full Bench intervening and finding that there's been some sort of error in the process. It's been taken into account and the Commissioner having had the benefit of seeing all of the evidence, including the evidence I've referred to before, had that view as to weight.

PN383

COMMISSIONER SAUNDERS: But if we formed the view that this matter should have been given and it has not been given any weight isn't that an appellable error?

PN384

MS DOUST: It has been given weight. There's no question that it has been given weight. It has been considered. The evidence about the matter has been weighed and taken into account. Findings have been made. Adverse weight hasn't been given to it. So the view that this is a matter that was adverse to Captain Rust was something that, in my submission, was open to the Commissioner. You can't say that there's a failure to have regard to the matter or that the Commissioner, having set out reasons, has reached a conclusion overall that was not within the bounds of the conclusions available to her, and that is in relation to the ultimate question of harsh, unjust, unreasonable. That's the conclusion that I say is the fundamental conclusion in this matter that would need to be demonstrated to be outside the scope of what was available, because recall Aickin J, it's about when there's a failure to exercise the discretion. What's the discretion? The discretion is in relation to whether or not the dismissal was harsh, unjust, unreasonable. Has the Commissioner misunderstood that; failed to take all the relevant considerations into account; applied a wrong principle? No, she's taken a view about this matter which the company doesn't like but that was a view that she was entitled to take within the scope of exercising that discretion.

PN385

COMMISSIONER SAUNDERS: Was there a proper foundation for the finding about the policy being observed more in the breach than otherwise?

PN386

MS DOUST: Yes, that was Captain Rust's evidence. Sorry, your Honours, he deals with this in his reply statement, and that is at AB397 one can see what Captain Rust's account of this matter, in particular at paragraph 20(b) and following. He says there he didn't turn his mind to the requirements of the various policies. His use of the medication was a matter of routine. He was advised there was no indication of any potential side effects that could possibly affect his work performance. At (e):

PN387

In my 17 years with Farstad only on one occasion have I witnessed a crew member declare that he or she was taking prescription medicine on joining the vessel.

PN388

Again, having regard to � sorry, the Commissioner was in the best position to make an assessment as to whether or not she accepted that evidence from Captain Rust. She saw him give his evidence and she saw the evidence from the company's witnesses. So, in my submission, there was a basis for that conclusion.

PN389

DEPUTY PRESIDENT GOSTENCNIK: Ms Doust, is this a convenient time, or would you prefer to complete your submissions on the Farstad appeal and then we'll adjourn?

PN390

MS DOUST: It's a convenient time.

PN391

DEPUTY PRESIDENT GOSTENCNIK: We'll adjourn until 2.

PN392

MS DOUST: As the Commission pleases.

LUNCHEON ADJOURNMENT牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [1.06 PM]

RESUMED牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [2.03 PM]

PN393

DEPUTY PRESIDENT GOSTENCNIK: Yes, Ms Doust.

PN394

MS DOUST: Thank you. Could I just conclude my submission in relation to those final grounds in Farstad's appeal with two references. Your Honours should have a copy of the decision of the High Court in Gronow. Do your Honours have that? There is a passage that starts at page 537 that I rely upon. It is in the judgment of Aickin J to which my friend referred earlier.

PN395

DEPUTY PRESIDENT GOSTENCNIK: Where do we have Gronow? Is it in one of the folders?

PN396

MS DOUST: I thought that you had been given a copy of Gronow earlier on. I'm sorry.

PN397

DEPUTY PRESIDENT GOSTENCNIK: There was reference made to it, but it wasn't in our folders.

PN398

MS DOUST: Yes.

PN399

MR POLLOCK: Apologies, your Honour. I think there was some discrepancy in the version I have and the version that has been provided.

PN400

DEPUTY PRESIDENT GOSTENCNIK: That's all right.

PN401

MR POLLOCK: I understand it is to be handed up now.

PN402

DEPUTY PRESIDENT GOSTENCNIK: Thank you.

PN403

MS DOUST: It is the passage commencing at page 537 of that decision, about the second to last full paragraph commencing "Statements of the general principles to be applied by an appellate court" and so on. His Honour there goes to restate this principle that a question of weight doesn't enliven the appellate court in intervening to set aside a decision below; that it's only where there has been a failure to exercise the discretion. Over the page one can see the final sentence in the paragraph that commences at the top of the page:

PN404

The fact that a decision on custody depends upon the exercise of a judicial discretion recognises that in many cases different minds may arrive at different conclusions.

PN405

Obviously custody is a slightly different question to harsh, unjust, unreasonable, but they're comparable in the sense that a broad evaluative judgment is being made. The paragraph thereafter commencing "The advantage" is one that I particularly draw your Honours attention to. There his Honour refers to the advantage the trial judge has of seeing and hearing the witnesses and importance of that process. That was the advantage, of course, that Bissett C had in this matter. That's what Gronow has to say on this matter of excessive weight or inadequate weight and so on.

PN406

Can I also refer your Honours to the decision in Mt Arthur Coal. I think that should be behind tab 4 of the folder that I handed up earlier. It's a passage at page 409 and following. Perhaps the relevant passage starts at paragraph 40:

PN407

It verges on being trite to say that the task of determining whether the dismissal of a person who is protected from unfair dismissal was harsh, unjust or unreasonable involves the exercise of a discretion. That discretion is a wide one, constrained only by the requirement to take into account the matters specified in paragraphs (a) to (h) of section 387. Section 387(h) itself confers on the decision‑maker a wide scope to take into account matters which he or she considers to be relevant.

PN408

Going further down:

PN409

In those circumstances, no one consideration and no combination of considerations is necessarily determinative of the result and the decision‑maker has some latitude as to the choice of decision to be made.

PN410

MS DOUST: At paragraph 41, the majority decision of Hatcher VP and Wells DP refer to the oft quoted passage in House v The King. It goes on to say at 42:

PN411

It follows that an appellate tribunal is not authorised to set aside a discretionary decision on the basis of a preference for an outcome different to that determined by the first instance decision‑maker.

PN412

The passage from Norbis v Norbis is set out there. Paragraph 43 in particular we rely upon:

PN413

Nor is appealable error demonstrated by a contention that the decision‑maker should have given more or less weight to a particular consideration.

PN414

Reference is made there to the passage in Gronow v Gronow of Aickin J, with whom Mason and Wilson JJ agreed:

PN415

It is, however, a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. It is only where a relevant matter has been given no weight because it was not considered at all that error in the exercise of the discretion will be demonstrated.

PN416

The balance of the majority decision conclusion there, their reasons are consistent with the approach that we contend for by this Full Bench in considering the way in which Bissett C below considered the factors relevant to the exercise of her discretion. We also rely on the passage commencing at page 412, at paragraph 51 and following, the way in which the majority of the Full Bench there dealt with an argument about unreasonableness or irrationality or illogicality. In particular, paragraph 53:

PN417

Although we are dealing here with an appeal by way of rehearing and not an application for judicial review, we consider that we should apply the principles set out above with respect to Mt Arthur Coal's invocation of irrationality and illogicality.

PN418

The question to be posed is whether, as is set out in paragraph 55:

PN419

There was room for a logical and rational person to adopt the Commissioner's process of reasoning and to reach the conclusion that he reached using this process of reasoning.

PN420

We say it's a high hurdle indeed and it's not for a party to come before the Full Bench to point selectively to all the matters that they relied upon in the proceeding below and to simply assert then, "Well, the proper view that should be taken of these matters is to have found in our favour; therefore, there is error." We say that that is the approach that has been taken by the employer in this matter.

PN421

Can I turn then to Captain Rust's appeal on the question of reinstatement and, mercifully, these submissions should take a great deal less time than the time that I have taken thus far because these points can be put in a fairly short compass. Can I ask the bench to turn to paragraph 130 and following of the decision of the Commissioner below, which is at appeal book page 18. Dealing with those reasons, which are brief, there are some fundamental elements. First of all, it's noted that, "Farstad opposes reinstatement", on the basis:

PN422

That it has lost trust and confidence in Captain Rust.

PN423

That is recorded at paragraph 131. The Commissioner sets out, at paragraph 132, the common invocation in such matters; that these matters need to be assessed objectively. Then we say, contrary to that approach, she goes on really to apply what is a subjective assessment of the question of trust and confidence, and there are a number of ways in which the Commissioner's reasoning in this respect demonstrates error. First of all, at paragraph 133, the Commissioner says this:

PN424

I am satisfied that Farstad has grounds to claim that it has lost trust and confidence in Captain Rust.

PN425

First, 134 is the breach of policy in relation to the blood alcohol concentration. Second is the failure to report the reportable medications. The Commissioner goes on to reason, in paragraph 136, that she is satisfied:

PN426

There are objective grounds on which Farstad has lost confidence in Captain Rust.

PN427

A couple of points need to be made about this. First is this � and this is clear from the decision of the Full Bench in Nguyen. This is a passage that is set out in paragraph 53 of Captain Rust's submissions, dated 11 August 2017. This is at page 8 of those submissions. The bench there refers to the question of trust and confidence so far as that is an issue that bears on the question of reinstatement. Of course it has often been said reinstatement is really the principal remedy or the default position in this division of the Act.

PN428

So far as trust and confidence are concerned, several points are made. First of all, it is a relevant consideration in determining whether reinstatement is appropriate and it's that appropriateness which is the fundamental question for the exercise of this discretion. Of course Buchanan J in the Full Court decision in Harbour City Ferries v Toms says there are fundamentally two stages in this process. The first is the broad evaluative judgment in respect of harshness, unfairness, unreasonableness. The second is the question about reinstatement.

PN429

The first proposition is loss of trust and confidence is relevant, but it's not the sole criterion or even a necessary one; so it's not the only matter. Second, each case must be decided on its own facts. Third, an allegation that there has been a loss of trust and confidence must be soundly and rationally based. It's important to carefully scrutinise a claim that reinstatement is inappropriate for that reason.

PN430

The reluctance of an employer to shift from a view, despite the tribunal's assessment about a matter, doesn't provide a sound basis to conclude that the relationship is irreparably damaged or destroyed. Difficulty or embarrassment are not necessarily indicative of a loss of trust and confidence.

PN431

In this matter, one of the factors that was relied upon by the Commissioner was the question of the apparent breaches of the prescribed medications policy. That is at paragraph 135 of the Commissioner's reasons. You will recall that, at paragraph 124, the Commissioner having considered those matters and then having considered various other considerations, concluded, "I draw no adverse inferences from this matter."

PN432

That is, we say, an objective assessment of the quality of those instances of conduct so far as they reflected upon Captain Rust's judgment, his conduct and the like. They were not, in the Commissioner's view, deserving of adverse inferences being drawn at the point at which she was considering whether or not the dismissal was harsh, unjust or unreasonable.

PN433

One can see from her reasons that there were a number of reasons for that. One was her conclusion that the policies were observed in the breach than otherwise and also the view that there should be education on the effect of those medications and the purpose of reporting. We say that is the conclusion the Commissioner reached having regard to that matter objectively.

PN434

That demonstrates, we say, that when she came to approach the question in paragraphs 130 to 137, the matter was approached on the basis as to whether or not subjectively the employer had a sense of loss of trust and confidence. It was in the nature of a conclusion about whether or not the employer's feelings about the matter were valid; whether it had some basis to reach its own subjective view rather than an assessment of those matters on an objective basis.

PN435

Having found that the question of the failure to declare the prescribed medications wasn't worthy of an adverse inference in respect of harshness and the like, it couldn't then be said, in my submission, that that was a matter that went to whether or not reinstatement was appropriate and whether or not a relationship of employment could be re‑established unless one looked at that purely from the subjective perspective and said, well, would an employer looking at this be entitled to feel aggrieved about it?

PN436

Yes, that might be right subjectively that the employer would be entitled to feel aggrieved about it, but it doesn't follow from that, that that is a matter that would logically mean the relationship could not be re‑established, which is the test for reinstatement. It's significant, in my submission, that in this passage where the Commissioner considers the question of remedy, she doesn't there refer to what we say are the very powerful factors that should have touched on the question of the appropriateness of reinstatement.

PN437

In particular, Captain Rust's length of service and, furthermore, his exemplary record, particularly where safety was concerned. I took the bench to those instances earlier on. Those factors don't appear to come into play and when one reads the Commissioner's reasons, on a fair analysis the Commissioner is really making an assessment as to whether or not the employer was justified in having had a diminution of its view of Captain Rust as a result of the conduct and not addressing the proper question, which is made clear in Nguyen and many other authorities, which is whether or not there is a basis for the restoration of the relationship.

PN438

That approach, we say, can be characterised in different ways. One might characterise is as failing to address the question whether in all the circumstances it was possible to make the relationship workable - which is how we've cast ground 2 - failure to have regard to relevant considerations and those are the considerations of length of service and Captain Rust's prior record, or having regard only to the question of trust and confidence which the Full Bench makes clear in Nguyen is but one consideration relevant to the question of remedy.

PN439

So far as this part of the Commissioner's decision is concerned, we say that she has applied the wrong approach and we say given the centrality of reinstatement as a remedy in respect of harsh, unjust, unreasonable dismissals, that is a matter that warrants the Full Bench in granting permission to appeal but also setting aside that part of the decision. We say there is sufficient before the Commission in that respect that it can deal with the matter by itself and determine the remedy for itself. Those are the submissions in relation to Captain Rust's appeal.

PN440

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Ms Doust.

PN441

MS DOUST: If it please the Commission.

PN442

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock?

PN443

MR POLLOCK: Thank you, your Honour. I will deal firstly with my submissions in reply on our appeal proper and then deal in response with matters concerning Captain Rust's appeal. To perhaps start close to the end of my learned friend submissions there, there were some references back to the High Court in Gronow and also to the Mt Arthur Full Bench. My learned friend took you to some passages first in Gronow and then in Mt Arthur to underpin a submission that it is a very high bar indeed in order to establish appealable error in the context of submissions concerning weight to be given.

PN444

Now, I suspect me and my learned friend are really not terribly far apart on what the test in fact is. I think on a fair reading of Gronow and the references to Lovell within Gronow that I took your Honours to earlier this morning, Gronow does not stand for the proposition that matters concerning weight can never give rise to an error of the exercise of discretion.

PN445

Rather, Gronow and Lovell both make the point - which is uncontroversial and certainly I wouldn't cavil with at all - that mere submissions around weight do not ordinarily give rise to appealable error or error in the exercise of discretion. Rather, it must be such manifestly excessive or such manifestly inadequate weight given to a particular relevant consideration that one could say that discretion is miscarried.

PN446

Now, that is a high bar that is simply cavilling with the particular weight that a first instance decision‑maker might have given and that reasonable minds might have differed. We're not in that space and I'm not advancing that submission. Rather, the submissions that we advance with respect to ground 1(b), ground 2 and the remaining grounds that deal with submissions concerning weight, are that they rise to the level of giving manifestly excessive or manifestly inadequate weight to a relevant consideration such that the discretion miscarries. That's consistent with Gronow. That is consistent with Lovell.

PN447

My learned friend took you to one particular passage in Mt Arthur; at paragraph 43 of that decision. My learned friend took you to the reference in paragraph 43 to that passage of Aickin J's decision, where his Honour said:

PN448

It is, however, a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is �

PN449

and here are the important words:

PN450

in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge.

PN451

When one reads the balance of Aickin J's decision referring to Lovell and the decision of Gronow as a whole � that is, the reasonings of the remaining Justices constituting the polarity there - it is quite clear that where that inadequate or excessive weight amounts to miscarriage of the discretion, that an appealable error will arise. Now, the following sentence here � that is, the final concluding sentence in 43 of Mt Arthur:

PN452

It is only where a relevant matter has been given no weight because it was not considered at all that error in the exercise of the discretion will be demonstrated.

PN453

With respect, that proposition is not right. When one tracks through the supporting authorities that are footnoted, paragraph 20 refers to:

PN454

See Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at 58 and the authorities cited there.

PN455

If one then goes to the authorities there cited, the support is derived from Milillo v Konnecke, which is a decision of the New South Wales Court of Appeal - that is medium neutral citation [2009] COA 109. The particular passages that are relied upon purportedly are of Ipp JA. Those are at 90 to 95.

PN456

When one reviews those passages, again it becomes clear there is a distinction between saying that excessive or inadequate weight can never be an error in the exercise of discretion on the one hand - which we say is plainly wrong, and none of these authorities on a close review of the facts support that proposition. On the other, saying that, well, the mere difference of opinion of weight doesn't amount to an appealable error, but where a weighing of such manifestly excessive or inadequate weight to those considerations - that can give rise to appealable error. That's the proposition we put that underpins all our appeal grounds where we cavil with weight.

PN457

Now, my learned friend also drew your Honours' attention to those passages in Gronow that refer to the advantage that a first instance decision‑maker might have in reviewing the evidence. Of course again that's an uncontroversial proposition, but as we have traversed in the course of our submissions this morning and this afternoon, this isn't a matter that goes to reconciling fundamentally inconsistent versions of the facts.

PN458

It's not a he said/she said type of case where questions of witness credit and observation of their performance in the witness box would be critical issues. With respect, I think the extent to which that advantage � although again we don't cavil with that as a matter of principle � in this case doesn't take the matter very far.

PN459

Now, I think earlier on in my learned friend's responsive submissions she took your Honours to some evidence around Captain Rust's reputation and his prior safety performance. Again, there is no argument there. There is no argument that Captain Rust over a long period of time was a strong performer in the safety space and received a number of awards, and he was a very senior operation employee. Of course, in our submission though there are matters which obviously cut both ways. They are relevant in a 387(h) context by way of perhaps to his merit, but equally they set the bar on what is expected in terms of his performance, his knowledge of policies and his application of them.

PN460

Turning to what my learned friend said about ground 1(a), my learned friend is, with respect, creating somewhat of a straw man with respect to this ground. We have not and have never put a submission that there is required a direct relationship between the matter in mitigation and the misconduct. One won't find those words in our outline of submissions. Rather, there needs to be a logical or rational basis, rational connection, and we don't put that any matter that is advanced with respect to 387(h) must relate to the misconduct. I think I made that very clear in my oral submissions this morning.

PN461

There can be matters that go to misconduct by way of mitigating that misconduct. There can be matters going to the characteristics of the employee themselves; their length of service, any particular disadvantages they might face. Consistent of course, your Honour I think made the observation that you wouldn't need to be persuaded that ultimately the question of relevance is as to whether the decision is harsh, unjust or unreasonable.

PN462

I agree with that completely, but where the matter is said to be relevant to that assessment of whether the dismissal was harsh, unjust or unreasonable because of its mitigating effect on the conduct and which is the basis on which it's advanced here � it's not going to be every factor, but where it is advanced for that reason, it must have some baseline relevance to that misconduct, otherwise there is absolutely no meaning to be given to the word "relevant" in the context of 387(h).

PN463

I think your Honours pressed my learned friend to articulate how it was said that the 2014 investigation on the one hand and, secondly, the interaction that Captain Rust had with Mr Richardson � or Mr X as he appears in the decision on the 5th � whether or not that might have had a bearing or been relevant to his decision to drink 10 beers. Your Honours pressed my learned friend to articulate the basis for its relevance to his decision on the following morning, when his evidence was that he was in good shape; for his decision to run the risk and present as fit for work, which was the relevant breach.

PN464

Now, my learned friend was unable to articulate a basis for that relevance. Rather, we were taken to some arguments around, well, in Magistrates Courts across this country plenty of people make the mistake that they thought they were right when they weren't. Whether or not that might be the case that in Magistrates Courts around this country people run those arguments on blowing over .05 is, for a start, not to the point. There is a very clear policy requirement at .02 for a very good reason.

PN465

DEPUTY PRESIDENT GOSTENCNIK: I'm not sure many jurisdictions confer on Magistrates anymore any discretion - - -

PN466

MR POLLOCK: That might be right, too, your Honour, but even if that were the case, what does that have at all to do with the 2014 investigation or the stress of the day before? The answer is absolutely nothing. There is a reason why my learned friend was unable to articulate any rational connection between the two and the answer is because there is none. Given again the centrality of that issue to the overall finding which one sees at 127, it's an irrelevant consideration. It is an appealable error.

PN467

DEPUTY PRESIDENT GOSTENCNIK: I guess as I understand the gist of Ms Doust's submission on that point, it is that it's artificial to separate the two. It's a continuum.

PN468

MR POLLOCK: A continuum, yes.

PN469

DEPUTY PRESIDENT GOSTENCNIK: But for one, the other would not have occurred.

PN470

MR POLLOCK: Well, that point might have more force were it not for Captain Rust's very clear evidence in his cross‑examination. If his evidence had been, "Look, the following morning I was still in a tizz. I was still, you know, stressed out. I didn't know what to do. In the heat of the moment I went downstairs," that might have been an argument that would have some force, but his evidence was � and again I invite you to go back to the transcript and review carefully what he said.

PN471

There can be no submission on the evidence fairly that he was still stressed or anxious or under the effects of those symptoms that he was suffering the day before, if in fact he was suffering. The idea again that it's all some continuum, (a) is belied by that relevant passage in the evidence and again, your Honour, I guess it becomes very difficult to see how one would separate out what is relevant and what is not if one can look at this as effectively a "but for" test.

PN472

Now, there was again some submissions seeking to challenge or impugn the approach taken by Farstad in 2014 and the failure to close off that investigation. I think, your Honour, you asked some questions around whether or not there were findings whether it was in fact closed off. As my learned friend took you to 119 in the decision, there is one sentence that makes that observation. It is not clear the evidentiary basis for that. That is the factual underpinnings leading to that conclusion are not clearly set out, but in any event we accept that there is a finding there.

PN473

The importance of that is said to be the ongoing impact that this had on Captain Rust and I think my learned friend suggested this was something that was hanging over his head. Now, I took your Honours this morning to the final response that he gave and I don't need to take you to that again. I think I made much of the final observations that he, in effect, was getting over it.

PN474

If it was the case that in fact Captain Rust continued to feel as if this was hanging over his head and it had not been resolved, where was the evidence between October 2015 and October 2016 of any further attempt to follow it up or any further query around what was happening with his email? If that was something that he was expecting a response to, one would expect there to be some evidence of a further follow‑up. Now, that was in October 2015.

PN475

If one tracks back to Captain Rust's evidence in his witness statements, he refers to an earlier communication with the company in January of 2015, but that concerned simply some issues with integrated rating, Ribergaard. It didn't concern the investigation specifically into his alleged misconduct.

PN476

Now, I think your Honour Deputy President Clancy put some propositions or asked some questions of my learned friend around some submissions that my learned friend made about the .02 versus .047 question and whether or not one should make much at all of the degree of the breach. I accept what my learned friend says, which is the policy doesn't speak to impairment. Of course it doesn't. In fact the evidence of the Farstad witnesses was quite clear on that basis. Rather, it speaks to a prescribed limit and a cut‑off.

PN477

Now, we don't make any submissions around whether at .047 or at .044 Captain Rust would have been impaired in his performance of his duties or otherwise. It gives rise to precisely the difficulties that, Deputy President Clancy, you identified. One would need to unpick this on a case by case basis and invite nebulous evidence and submissions around what constitutes impairment in that particular type of work.

PN478

What we say though, of course, is that the policy required strict compliance with those limits. That was the relevance breach. Again, one can go back to what the Full Bench in Harbour City Ferries v Toms said at 27. This is perhaps a well‑worn passage, but it bears repeating:

PN479

The fact is that Harbour City required its policy complied with without discussion or variation. 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.

PN480

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.

PN481

That, again, underpins the submission here. This is not a question of impairment. This is a question of clear contravention of the policy itself. Now, insofar as Captain Rust was over twice the limit, we don't make a submission as to whether or not he was impaired, but what it might bear upon is whether or not he knew or should have known that there was a risk that he would have blown over and what that says about whether he should have taken the option to self‑report. In any event, his evidence was clear that he knew that he could be tested and he knew that he could self‑report, and he chose not to. That is really as far as it goes.

PN482

My learned friend also took issue with the fact that Dr Wright, the relevant expert, had not been challenged in his evidence concerning the effect of the meeting between Captain Rust and Mr Richardson on 5 October. Although not clearly put, I would take from that submission that it's suggested that we accepted his evidence in that regard. What we say about that is quite simple. Dr Wright didn't see Captain Rust until four months after the incident. Cross‑examining Dr Wright on the truthfulness, accuracy or otherwise of Captain Rust's subjective recollection of what happened on that day would be futile. Dr Wright can only report what Captain Rust tells him about how he was feeling on that day.

PN483

My learned friend also made the submission that Captain Rust was extremely up‑front on the day. Now, again we don't cavil with that submission at all. What that of course leads to, your Honours, is, well, if Captain Rust was up‑front on that day - which we say he was and we don't disagree with - the version of events he gives makes no reference on that day to the interaction with Mr Richardson being the �

PN484

MS DOUST: It does.

PN485

MR POLLOCK: He made concessions in cross‑examination that he didn't raise � well, let's be clear about this. Sorry, I do not want to misstate the evidence here. This is at transcript 188. This is at appeal book 41:

PN486

When you spoke with Brett first that morning � he says it's around 10 o'clock in the morning. Whether or not you can recall precisely when it is � the first time you spoke with him that morning, you didn't mention anything about being triggered into bad memories by seeing a former crew member, did you?‑‑‑No, I did not.

PN487

You spoke with Brett Robinson again about an hour and a half later, didn't you?‑‑‑Yes, we did.

PN488

You didn't mention anything about being triggered into bad memories by seeing this former crew member in that conversation either, did you?‑‑‑Not to � no � yes. That's correct, yes.

PN489

You spoke with Chris Homsey, the HR director, later that evening, didn't you?‑‑‑Yes, I did.

PN490

You didn't tell Chris Homsey that the reason you drank heavily the night before was because you were triggered into bad memories by seeing a former crew member, did you?‑‑‑No, I did not.

PN491

In fact the first occasion that you raised this reason � that is being triggered into bad memories by seeing this former crew member � the first occasion you raised that as the reason why you drank heavily on 5 October was in a letter to the company dated 27 October, wasn't it?‑‑‑Yes.

PN492

That was the letter that was prepared on your behalf by your union, after you had spoken with your union, wasn't it?‑‑‑That's correct, sir.

PN493

Now, with respect to ground 4 and also this applies equally to ground 5, my learned friend advanced submissions to the effect that referring to a matter in the course of the � well, the effect of the submission, as I understood it, was this: that one could find that a certain factor had been taken into account for the purposes of weight in the weighing equation by the fact that it's referred to in the decision.

PN494

That is, the decision is not silent on that issue. There is some reference to it. It must have been taken into account in the weighing process and, therefore simply an issue of weight, therefore, no appealable error. That appears to be the thrust of what my learned friend said with respect to ground 4 and equally with respect to ground 5.

PN495

Of course simply referring to the matter, whether by way of background or even with respect to findings made, doesn't of itself show that the matter was in fact weighed or taken into account in the ultimate conclusion. Often it's difficult in those circumstances to pinpoint of course the error and that's why the second limb of House v The King is there.

PN496

It's there in circumstances where perhaps a decision is silent on some matters or perhaps when a matter is referred to, but ultimately you get to the end of the road and the decision is manifestly unreasonable, and you can't figure out precisely where the error has ultimately occurred in the weighing, but you get to the end and it doesn't add up.

PN497

Of course it's our submission that that is precisely the type of error that has occurred with respect to ground 4 and ground 5. That is, simply that these things are referred to in the decision doesn't show the weighing and when one considers, well, what weight would have that properly been given, it has fallen so manifestly short of that that there is an error in the exercise of the discretion.

PN498

Commissioner Saunders, I think you raised a question around the proper construction of paragraph 124. That is, the reference in the last sentence to:

PN499

Ultimately, I draw no adverse inferences from this matter.

PN500

I think you put to my learned friend, "Well, do you say that that, in conjunction with the consideration of Captain Rust's apparent failure to advise Farstad of the medications he was taking," that is at the top of paragraph 124, and 117, that is the finding that that constituted a breach - I think you asked my learned friend whether the last sentence means that the Commissioner didn't give it any weight. My learned friend backed away from agreeing with that proposition and suggested that it was weighed up in the mix, but wasn't given any adverse weight, I think was the way it was put.

PN501

With respect, the only fair and reasonable conclusion to draw from reading paragraphs 117 and 124 is that the conduct with respect to failure to disclose the medication was established. It was a breach, but ultimately was given no weight at all. That is the only reasonable conclusion to draw from that last sentence of paragraph 124 and of course we say that that is an error.

PN502

My learned friend sought to make much of what was said to be raising this issue late in the piece. Of course it was a matter that only came up in the course of the evidence, because it was a matter that was first brought to Farstad's attention in Captain Rust's evidence. That being said, Captain Rust was cross‑examined on it. Oral submissions were made about it in some detail. You'll see that at paragraphs 1786 and following in the transcript. I see no basis on which it can be said at this point it wasn't properly argued or evidence led on it. There plainly was.

PN503

My learned friend also suggested there was ambiguity in the policy position. The relevant passages and policies are found at appeal book 590 and appeal book 597. I need not take you through those in detail, your Honours, but the position is pretty straightforward. Lastly, my learned friend made some submissions around, well, perhaps it wasn't reasonable to expect Captain Rust to have understood what the possible side‑effects of the medication might have been and whether or not that in fact was required to be disclosed.

PN504

Again, I would simply refer back to Captain Rust's evidence in cross‑examination that he read the prescribing information. The prescribing information sets out in clear terms what some possible side‑effects � in some cases greater than 10 per cent of cases, in other cases lower than 10 per cent of cases, but they are side‑effects which Captain Rust either knew about or should have known about and should have reported in accordance with the policy.

PN505

That is all I propose to say in reply on our appeal proper, unless there are any additional questions from your Honours.

PN506

DEPUTY PRESIDENT GOSTENCNIK: Just one. Going back to the issue of whether the sentence, "I draw no adverse inference," means that the Commissioner didn't give that issue any weight, I acknowledge that that is one characterisation of the reasoning. Another might be that having found in 117 that there was a breach, then in 124 acknowledges the breach, takes into account the enforcement of the policies, the medical impact on capacity to perform one's job and the absence of any apparent education as to medication at work and its effects, and ultimately concludes that that consideration in those circumstances is neutral, that in itself is a weighing exercise.

PN507

MR POLLOCK: Yes. I will re‑cast the submission I made previously. I do accept that that is one possible interpretation of that conclusion. Whether or not that possible interpretation is the one that was in fact applied is a separate question.

PN508

DEPUTY PRESIDENT GOSTENCNIK: Unfortunately, we're left with words that require that interpretation.

PN509

MR POLLOCK: Well, that's right. The ambiguity in those reasons does make our task somewhat difficult, but what might be said in response there, your Honour � the observation there is that:

PN510

Whilst it is clear such medications should be reported, the limited evidence on this aspect of Farstad policies suggests it is observed more in the breach than otherwise.

PN511

I took you this morning to some difficulties there. That is, the only evidence that would support that proposition was Captain Rust's evidence that he had only noted once or twice employees disclosing this in - - -

PN512

MS DOUST: Once.

PN513

MR POLLOCK: Once, I'm sorry.

PN514

MS DOUST: Don't just make it up.

PN515

MR POLLOCK: That was the only piece of evidence that could sustain that finding. The difficulty there of course is that no reference is made at all to the evidence � consistent evidence � of both Mr Homsey and Mr Scott. I took you this morning, your Honour, to the relevant passages in the transcript that puts a very different complexion on that evidence; not only saying that wasn't their experience and, secondly, noting that that would give rise to a concern that Captain Rust hadn't been properly discharging his obligations under the policy to ask his crew members, "Are you taking medication at the moment?"

PN516

Now, that makes that factual finding - the limited evidence on this aspect of Farstad policies suggests it's observed more in the breach than otherwise - difficult to sustain, if not impossible to sustain. Certainly in the absence of any reference to that evidence of Mr Homsey and Mr Scott, that of itself suggests that a relevant consideration was not taken into account.

PN517

Again, whilst I can accept, your Honour, that at least on one view � albeit perhaps a stray one � that would be a construction that's open, if that was the approach that was taken, that weighing exercise again produced a manifestly unreasonable outcome given the failure to take into account that evidence of Mr Homsey and Mr Scott. Given also again this issue that I took your Honours to this morning, the finding here:

PN518

I accept the evidence of the doctors who appeared in the matter that the consumption of alcohol whilst on the medications is more likely to affect the effectiveness of the medication rather than have an adverse impact on Captain Rust's ability to do his job.

PN519

That finding, for the reasons I articulated this morning, was simply not open on that evidence.

PN520

DEPUTY PRESIDENT GOSTENCNIK: Yes.

PN521

MR POLLOCK: So subject to any further questions, I propose to briefly respond to my learned friend's submissions on the cross‑appeal. Now, my learned friend's oral submissions really traversed grounds 2 to 4. There were not, at least as I recall, any detailed oral submissions concerning ground 1. Certainly my learned friend didn't abandon it, so I'm not suggesting that she has, but to the extent that it is still pressed, I would simply rely on what we say at paragraphs 3 to 8 in our written responsive submissions.

PN522

That was an issue which I ventilated with � it was also relevant to our appeal proper. This is simply the question of, well, when did Farstad become aware of these breaches concerning the prescribed medication? The fact that Farstad didn't investigate ground 1, that's put that those matters were perhaps not so serious and Farstad's failure to investigate them supports that view.

PN523

Now, again as I say at paragraphs 3 to 8, that's explained simply on the basis that, well, we only discovered those things in the context of this evidence and so it's utterly unreasonable to expect that Farstad would conduct an ex post facto investigation of a dismissed employee to determine whether there was in fact another possible valid reason for his dismissal. So we deal with that in very short compass; there is simply no merit to that ground.

PN524

The meat really of my learned friend's cross‑appeal is grounds 2 to 4 and what is said about the Commissioner's approach to applying the correct tests for reinstatement. As we say at paragraph 10 of our outline, of course we accept that Nguyen is the relevant principle to apply insofar as the question of appropriateness of reinstatement concerns questions of trust and confidence. Of course the question of whether or not reinstatement is appropriate is not limited to whether or not trust and confidence remains.

PN525

That's one of the factors that can govern that, but insofar as the Commissioner's analysis concerns trust and confidence, Nguyen is the appropriate principle. In my submission, simply, the Commissioner didn't fail to apply Nguyen. There are certainly some infelicities in the way that she has expressed her reasons, but on the totality of the reasons one can see that those principles have been applied, firstly, and, secondly, even if they hadn't, there is ample basis on the findings that the Commissioner made to make good an analysis, applying Nguyen, that reinstatement is inappropriate.

PN526

So let's have a look at those relevant passages of the decision. This is at 130 to 136 of the decision. Your Honours of course see at 132, the Commissioner says:

PN527

It is the case that a loss of trust and confidence must be objectively assessed.

PN528

MR POLLOCK: That's perfectly consistent with Nguyen.

PN529

It is also the case that loss of trust and confidence is a common reprise amongst employers when an employee is found to have been unfairly dismissed by the Commission and reinstatement is sought.

PN530

That is perhaps not as precisely expressed as it is in Nguyen, but it is expressing the same principle that a claim that trust and confidence has been lost must be carefully scrutinised, because it is a common reprise. Every employer faced with a reinstatement application � or most of them � will run that argument perhaps baldly without any considered submissions or evidence to support it.

PN531

Now, what does the Commissioner then go on to do? Well, she goes on to consider the reasons why trust and confidence has been lost, and why reinstatement is inappropriate. She finds, at 133:

PN532

I am satisfied that Farstad has grounds to claim that it has lost trust and confidence.

PN533

She observes a breach of a series of policies at 134.

PN534

Also, over time, failed to report...he has been on medications reportable pursuant to Farstad's policies.

PN535

Further, the breaches over time. Then at 136:

PN536

Captain Rust held a senior position within Farstad. He is a master and captain of a sea‑going vessel that can be away for weeks at a time. He is responsible for the safety of the vessel and crew, pollution prevention and overall operation of the vessel. He works in a safety critical industry. In circumstances where Farstad must have confidence in its masters, I am satisfied in these circumstances that there are objective grounds on which Farstad has lost confidence in Captain Rust.

PN537

DEPUTY PRESIDENT GOSTENCNIK: Mr Pollock, noting your criticisms of 124 earlier how does one reconcile 124 and 135?

PN538

MR POLLOCK: Well, that is the "ultimately make no adverse inferences".

PN539

DEPUTY PRESIDENT GOSTENCNIK: Because it seems to me that if the matter is not sufficiently adverse so as to not make the dismissal unfair, how does it then become significant in assessing whether or not there is trust and confidence lost?

PN540

MR POLLOCK: That observation is a fair one in circumstances where, particularly given in 124, there is some ambiguity as to precisely what is meant by "adverse inferences". What we say about that, firstly, it is perhaps not necessarily the case that whether or not a factor carried the day on an analysis of 387(a) through to (h) - whether it went to valid reason or whether it went to a 387(h) factor. I don't think we would put it so highly as to say that once a factor � if a factor doesn't carry the day under 387(a) to (h), it cannot be relevant to the question of appropriateness of reinstatement.

PN541

There might be some aspect of that that perhaps wasn't relevant or sufficiently relevant to carry the day in the assessment of whether or not it's harsh, unjust or unreasonable, but does bear upon forward looking at whether or not reinstatement is or is not appropriate.

PN542

DEPUTY PRESIDENT GOSTENCNIK: Perhaps it's in the context of your client wasn't aware of that issue until after the event and now that it's aware of the issue, given that it appears to have taken place over a long period of time, that that might have taken effect.

PN543

MR POLLOCK: Well, that's exactly right, your Honour. Those are the submissions we make with respect to ground 1 of the cross‑appeal. Again those are matters which, by reason of � as your Honour quite rightly identifies, they were discovered after the fact and so perhaps, we say wrongly, the Commissioner has failed to give any or adequate weight to them in the context of 387, but they do bear upon whether or not reinstatement is appropriate in those circumstances.

PN544

I can't give a particularly neat answer to that and there is, I agree, some tension in a factor being either not weighed at all in the balance for 387 or given little weight in 387, but then relied upon in reinstatement. What we say is that that factor was relevant and critical to the assessment both of 387(a) through to (h) and also on reinstatement if we got that far.

PN545

We, of course, say that the Commissioner was in error to give no weight or manifestly inadequate weight to those ongoing breaches in the context of 387(h). We say that was an error, but the fact that the Commissioner appears on the face of it - at reasons at 136 - to have weighed that in the context of reinstatement, is correct, because it is relevant to that question. Now, of course on our view of the world it should have been take into account at the 387 stage such that we never got to the question of reinstatement. Perhaps a cute submission to say better late than never that it was taken into account, but that's the position we're left with.

PN546

I think the thrust of my learned friend's criticism of the Commissioner's approach, at least on the face of her written submissions, was what was said to be a failure to properly consider whether or not trust and confidence could be restored. True it is that there is no express advertence to that question in the course of paragraph 136, but we say two things about that.

PN547

Firstly, simply because the test hasn't been as finely expressed in this case as it might have been in Nguyen, doesn't mean that on the totality of the evidence, on the totality of the analysis, that consideration of whether moving forward or whether there is a basis to say that there could be a rejuvenation of trust and confidence, hasn't been considered.

PN548

As you quite rightly point out, your Honour, there is consideration here of ongoing policy breaches with respect to the prescribed medication issue which, on a reasonable view if one was looking at this again, one would form the view that the test in Nguyen would be satisfied. Perhaps the reasons could be expressed with a greater degree of precision, but attacking those reasons on that basis is the sort of � and I think I make this point in the written outline � fine toothcomb approach that - - -

PN549

DEPUTY PRESIDENT GOSTENCNIK: You adopted in your principal appeal.

PN550

MR POLLOCK: I appreciate the difficulty in advancing that submission. Of course I don't put it too highly. The distinction, of course, we say is - - -

PN551

DEPUTY PRESIDENT GOSTENCNIK: I understand.

PN552

MR POLLOCK: - - - the findings here ably support that. We say that the findings on the evidence in our appeal proper could not have supported the conclusions that were reached. Beyond that, I simply rely on what we say in the written outline with respect to those grounds, save only to say this: that has of course gone to the question of the merits of those grounds and whether or not appealable error is shown.

PN553

Let's assume for the moment that my learned friend makes good the ground on failing to consider - or at least failing to expressly consider that second limb of Nguyen. We say no different outcome would be reached, anyway, and that the factual position supports that the reinstatement is inappropriate. In any event, one does struggle to find what would be the issue of general importance or an otherwise counterintuitive disharmonious result here that would give rise to a grant of permission to appeal.

PN554

Now, I don't put it any higher than that, but beyond that I cannot see � certainly there might be questions of there being a question of approach in this particular case, but it's hard to see what the issue of general importance is from a public interest perspective.

PN555

DEPUTY PRESIDENT GOSTENCNIK: Thank you, Mr Pollock.

PN556

MR POLLOCK: Unless there is anything else, those are my submissions.

PN557

DEPUTY PRESIDENT GOSTENCNIK: Ms Doust, anything in reply?

PN558

MS DOUST: Just a couple of things. First of all, on the basis that I'm going to be extremely brief in reply to my case, can I give your Honours a reference to the evidence of Mr Homsey about his conversation with Mr Rust on the day of the incident. That is at AB505, paragraphs 22 and 23. Significantly Captain Rust, when he dealt with that evidence in his reply statement, takes issue with what appears at paragraph 24, but otherwise doesn't contradict what is said earlier.

PN559

In a nutshell, the evidence is this: when Captain Rust spoke with Mr Homsey on the day of the incident, Mr Homsey said this:

PN560

I said to Captain Rust words to the effect, "What happened?" He said to me he had seen an integrated rating from the Far Scimitar in transit that he recognised. The IR position is held by approximately 40 per cent of the crew on board. IRs perform functions including bridge duties and so on. I said to him, "Was it Tim Ribergaard?" and Captain Rust responded with the words, "No, another IR." I asked Captain Rust, "Did something happen? Did you guys have an altercation?" Captain Rust said to me, "No, no, nothing like that. Just clarified a few things."

PN561

The point being, my friend went very close to a submission that there was no mention made by Captain Rust on the day in question of any interaction with Mr Richardson or that being an issue that was relevant at all. On the employer's own evidence here whilst it's true that Captain Rust doesn't say, "That's the thing that sparked me off," or, "That's the thing that distressed me," he doesn't talk about his feelings, but when he is asked what happened, the first thing he says was, "I bumped into Richardson. We started discussing this thing to do with the Scimitar." So, at an early stage, Captain Rust identified that it was that interaction that was involved in what had taken place vis‑a-vis his test.

PN562

Just going to our appeal grounds on the question of reinstatement and on the question of the prescription drug issue, it seems to me that at the first stage � at that stage of harsh, unjust, unreasonable � there are two issues for the tribunal to consider. The first issue is did this prescription medication issue itself amount to a valid reason? That wasn't the case that was advanced by the employer, it wasn't the case that was advanced to Bissett C and that wasn't found.

PN563

The second question � and this goes to our argument about whether or not the finding in 124 reflects upon the way in which the Commissioner dealt with the issue of reinstatement or the proper test to apply in 130 and following. The second question on harsh, unjust, unreasonableness is this, isn't it: did this matter otherwise militate in favour of or against a dismissal? If it militated in favour of dismissal, that was something that told against a conclusion of harsh, unjust, unreasonable. If it militated the other way, the opposite result, the question that arose here under 387 was is this something that warrants breaking the employment relationship?

PN564

Now, the question in terms of remedy was is this a relationship that can be restored, so we think there is a high level of identity between those two issues. That's why the only way one can reconcile the finding in 124 that this was something that was not adverse to Captain Rust on harsh, unjust, unreasonable, is if the Commissioner then approached the question of reinstatement from the perspective of the employer, "Notwithstanding I've found this doesn't reflect adversely on Captain Rust for his employment, is this something that the employer might look at and form a particular view, and that they might, you know, reach a view that they have lost trust and confidence?"

PN565

That's how we say the wrong test was applied, that the approach taken by the Commissioner was effectively, "Have they reached a valid view rather than on a holistic basis? Can this relationship be restored and is reinstatement appropriate." Those are the matters in reply, unless there are any questions arising on Farstad's submissions for Captain Rust's case.

PN566

MR POLLOCK: Sorry, your Honours, just very quickly. There is one thing I need to perhaps clarify or correct with respect to what my learned friend just said. My learned friend made the submission that the question around the prescribed medication was not a question that submissions were made on below with respect to valid reason. That's not right. One can see the transcript at 1756 and following - - -

PN567

DEPUTY PRESIDENT GOSTENCNIK: Sorry, what - - -

PN568

MR POLLOCK: This is at transcript 1756, at appeal book 207. This is simply one example of where this was raised:

PN569

The circumstances again � of an evening with antidepressant medical which Dr Wright, being the relevant expert � we can discharge what Dr Chatfield had to say about this given that she has no relevant expertise here. Dr Wright agreed with the proposition that a combination of alcohol and antidepressants would exacerbate the impairing effects of that antidepressant medication. He agreed that that was possible. He also agreed that it is not possible to know precisely how that's going to happen.

PN570

I think my friend touched on that piece of evidence in terms of somehow suggesting that it mitigated the seriousness of it. I think if anything it amplifies it. The fact that he could not know, the fact that there is a real risk the next morning as to how that reaction might manifest, is all the more reason why an employee wouldn't self‑report.

PN571

I simply raise that. The medication issue was something that was raised below in submissions. I put it no further than that.

PN572

DEPUTY PRESIDENT GOSTENCNIK: I think the criticism that was made was that it wasn't put as a separate or independent valid reason.

PN573

MS DOUST: Quite.

PN574

MR POLLOCK: If that was the extent of it - - -

PN575

DEPUTY PRESIDENT GOSTENCNIK: Well, that's how I understood it.

PN576

MR POLLOCK: The submissions below will set out the way in which it was put, of course.

PN577

DEPUTY PRESIDENT GOSTENCNIK: I understand that, but I understood Ms Doust's submission to be going to the question of valid reason.

PN578

MR POLLOCK: That may have been the case. I may have misunderstood what my learned friend said.

PN579

DEPUTY PRESIDENT GOSTENCNIK: Yes. I have correctly understood your submission, haven't I?

PN580

MS DOUST: Yes, quite, Deputy President.

PN581

DEPUTY PRESIDENT GOSTENCNIK: All right. We will reserve our decision. We thank both counsel for their assistance today.

PN582

MS DOUST: If it please the Commission.

PN583

MR POLLOCK: Thank you, your Honour.

PN584

DEPUTY PRESIDENT GOSTENCNIK: We are adjourned.

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Fair Work Commission Transcripts

C2017/4121, Transcript of Proceedings [2017] FWCTrans 386 (12 September 2017)