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FWC full bench applies common-sense to safety breach dismissal case

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AREEA, Australia’s peak resources and energy industry employer group, has welcomed a common-sense Fair Work Commission decision overturning an initial decision that a worker was harshly dismissed for turning up to work in excess of the company’s prescribed blood alcohol limit.

On appeal, a Full Bench of the FWC found the worker’s failure to self-report his alcohol consumption before undergoing a breath test should have weighed against the original finding that the dismissal was harsh.

The matter has now been referred to another member of the Commission for re-hearing.

The captain was dismissed by Farstad Shipping (Indian Pacific) Pty Ltd in November last year for breaching its health and safety policies by failing a random alcohol test before boarding a vessel in Karratha, Western Australia.

“In the offshore oil and gas industry many will be acutely aware that there is zero tolerance for breaching company drug and alcohol policies,” AREEA’s chief executive Steve Knott said.

Mr Knott said FWC members were too often interfering in company decisions to dismiss workers on breach of safety regulations.

He said that the prospect of FWC members not familiar with the operation of vessels in the offshore oil and gas sector substituting their judgement over established company policy and the experience of vessel industry managers is frightening.

“AREEA and its members are hopeful that this full bench decision is a step in the right direction and stops the undermining of workplace health and safety protocols that have been in place for decades for good reason,” Mr Knott said.

“Unfortunately the ALP’s Fair Work Act 2009 gives FWC members discretion to consider ‘any other matter’ that they think is relevant to a termination.”

“Even though a valid reason for termination exists, and despite extensive and correct procedural processes being followed, FWC members can – and some do – exercise the discretion to determine a dismissal for a serious safety breach was ‘harsh’.

“With many FWC members having never run a business themselves, this cannot be right, nor can it be fair. Worse still, it is dangerous.”

“When it comes to safety there can be no compromise. That’s why AREEA is calling for the removal of this discretionary power where a serious safety breach has occurred and is proven.

“Let’s make it simple; adherence to safety policies save lives.

“Sadly, sometimes you don’t get a second chance when it comes to safety.”

Mr Knott said it was commonplace for companies to have zero tolerance towards key safety breaches and these are strictly enforced because the alternative is people get seriously injured, or still worse, die.

The appeal decision can be found here:


A copy of our Media Statement can be found here.

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