Wednesday, 20 February 2019

FWC Criticises Employer’s Mental Health Practices Following Sacking of Suicidal Worker

The Fair Work Commission (FWC) has criticised port operator DP World and referred the company to SafeWork NSW in response to significant failures in its workplace health and safety practices, after it dismissed an allegedly suicidal worker for being drunk at work but failed to take any action in response to him threatening suicide.

The stevedore, who had been employed by DP World for 23 years, returned a blood alcohol concentration (BAC) of 0.118% following a random test in April last year. He initially told his employer the reading was due to friends spiking his drink whilst at a birthday lunch prior to attending work. However, after his employment was terminated, the stevedore wrote to the employer pleading to be reinstated and admitting he had attended work in a depressed state and consumed four cans of Wild Turkey to gain the courage to end his life.

It also transpired that the stevedore had sent a text message to a fellow worker saying, “Tell my family I love them with all my heart, please, and I’m sorry”.  The fellow worker had notified his Team Leader, who then attended the stevedore’s worksite and talked him down from an open hatch, from which he was intending to jump.  The Team Leader said at the time he did not suspect the stevedore was intoxicated and immediately returned him to work without notifying management.  It wasn’t until the stevedore returned the positive BAC following the random test that he was stood down.

Despite these circumstances, DP World confirmed his dismissal and the stevedore subsequently made an unfair dismissal claim.

Dismissal was fair

Ultimately, the FWC upheld the termination, finding it was not unjust, unreasonable or harsh. In reaching this decision the FWC noted the stevedore’s BAC was nearly six times the limit provided for in DP World’s Alcohol and Other Drugs (AOD) Policy, and that the stevedore’s role as Deck Foreman was crucial to ensure safety in what was a hazardous working environment.

There was evidence the stevedore had not received the AOD policy, however the FWC found that even in the absence of an AOD policy, a reasonable employee would know that one could not consume or be impaired by alcohol while working at such a safety-critical site.

Criticisms levelled at DP World

Despite upholding the dismissal, the FWC were critical of DP World’s workplace health and safety practices and noted the following:

  • Since the incident, DP World had taken no action to ensure that if other employees threatened suicide at work, threats were immediately reported up the line and appropriate action taken.
  • If DP World appropriately intervened during the incident the worker would likely have been removed from the workplace, ceased to have posed a safety risk, and might have avoided being dismissed.
  • There were inconsistencies in DP World’s treatment of employees for breach of the AOD policy, with evidence given that the son of a high-ranking union official was not terminated when he breached the AOD policy.
  • The AOD policy was not clear on what action would follow a positive BAC test, and that certain BAC levels that could lead to automatic dismissal.

In response to the inaction taken by the Team Leader and senior representatives of DP World, the Commission referred the decision, the evidence and the transcript of the proceedings to the compliance unit of SafeWork NSW.

Lessons for employers

This case highlights the following:

  • The importance of having in place appropriate policies and procedures regarding alcohol and drugs in the workplace, particularly in safety critical environments. This includes:
  • Consulting with employees on the development of such policies;
  • Properly implementing policies and procedures to ensure all employees are aware of the requirements;
  • Training managers in these processes; and
  • Ensuring policies clearly set out the consequences of non-compliance, and that the policies are enforced consistently.

Developing and implementing policies and processes to identify and provide support to employees who may be suffering from mental health problems/mental illness. This includes:

  • The organisation genuinely recognising and clearly communicating that mental health is as important as physical health;
  • Providing training to managers on identifying and addressing mental health issues, including escalating concerns where appropriate;
  • Enabling employees to make disclosures about mental health issues, without fear of adverse treatment.

HR Legal supports organisations in their focus on Mental Health in the Workplace, to find out more about our training on Mental Health in the Workplace, click here.

Case Study: Daniel Racek v DP World Sydney [2019] FWC 772 (8 February 2019)

If you or someone you know is in crisis or needs support, call Lifeline on 13 11 14 or BeyondBlue on 1300 224 636. If it is an emergency, call 000.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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