The Racek Decision (Daniel Racek v DP World Sydney - [2019] FWC 772), published on 8 February 2019, is a very important decision which looks at the intersection of health and safety and employee management.
I cannot hope to do the case proper justice in the confines of an online article, but I would highly recommend health and safety and human resources departments get together and schedule a workshop to read and review the decision and understand the implications for their business.
Without canvassing every aspect of the decision, or every factual issues, I do want to provide a brief summary of the case and consider two very important points. First, the intersection between policy and what we should expect of employees regardless of policy and second, how reliance on workplace health and safety as a basis for employee management can have unintended consequences.
Anyone who does give a close reading to the case will also appreciate the complexity that our various legislative frameworks – employment, safety, discrimination, compensation – create in a real working environment.
Background
Mr Racek had worked as a stevedore at the container terminal at Port Botany in New South Wales. The business had changed hands several times during his career, but he had worked continuously at the Port for 23 years. By April 2018 Mr Racek was employed by DP World.
Mr Racek started work at 2 PM on 7 April 2018. Within half an hour of starting, he drank at least four cans of Wild Turkey, with an alcohol content of 4.8%.
At 2:56 PM, Mr Racek sent a text message to another worker which said:
“Tell my family I love them with all my heart, please, and I’m sorry”
The worker who received a text message told his team leader, and the team leader went to Mr Racek’s worksite and found him standing beside an open hatch. The team leader spent half an hour talking Mr Racek down.
Nobody reported Mr Racek’s threat of suicide to more senior management, and he was allowed to return to work.
At 4:31 PM he was selected for random drug and alcohol testing and returned a blood alcohol concentration of 0.118%. Mr Racek had to wait 30 minutes to undergo a second test which was sent to a laboratory for confirmation. The second test returned a blood alcohol concentration of 0.116%.
Mr Racek was stood down for the rest of his shift, and although he was offered a Cabcharge voucher to take him home, he drove his personal vehicle.
As a consequence of his conduct, DP World terminated Mr Racek’s employment.
It was not contested that:
DP World had an Alcohol and Other Drugs Policy (Policy), and the Policy said stevedores must not have a blood alcohol reading of more than 0.02%.
Mr Racek had breached the Policy.
Mr Racek had never received the Policy or been trained in it.
7 April 2018 was Mr Racek’s 55th birthday.
It was also not contested that Mr Racek’s “mental facilities were affected by a range of personal circumstances” on the day. This matter was slightly more problematic, given that Mr Racek had claimed to be suffering from post-traumatic stress disorder and depression, but did not provide any independent evidence of those claims. The Commission noted:
“However, both post-traumatic stress disorder and depression are clinical terms. There was no evidence before me from a person qualified to make a medical diagnosis. I accept that the Applicant attended his general practitioner three days after the dismissal (i.e. on 16 April 2018) and again on 19 April 2018. I also accept that the applicant attended with a psychologist at least from 1 May 2018. Notwithstanding that clinical care, neither the general practitioner nor the psychologist gave evidence in these proceedings. Consequently, as the evidence stands, all that I am left with is what the Applicant apparently reported to his doctors. To the extent that the Applicant claims to have a post-traumatic stress disorder and depression, I must attach little weight to his self-diagnosis because of his lack of qualifications in the area of mental health. Noting the importance that the Applicant placed on his mental state on 7 April 2018, it is curious that no greater effort was made to lead expert evidence about the same.” [35]
Ultimately, the Commission determined that the breach of the Policy gave DP World a valid reason to terminate Mr Racek’s employment, and DP World did not exercise that right unfairly. However, the Commission was also highly critical of DP World's management of its workplace health and safety obligations and referred the case to SafeWork NSW.
Reliance on Policy
I have written several times about an employer’s obligation to warn employees, or notify employees, about the “obvious” in the context of workplace health and safety (see for example Is there a duty to warn workers about obvious hazards and Paper Safe, page 41 – 42). However, the Racek decision shows that similar principles apply in the context of the employment relationship.
It is common, in defending unfair dismissal proceedings, for an employee to argue they were not aware of the policy or procedure requirements they breached. In this case, given Mr Racek did not receive a copy of and was not trained on the Policy, it is unsurprising the issue was also considered.
However, the lack of information about the Policy did not make the termination unfair:
“However, in the present matter the Applicant’s BAC reading was nearly 6 times the limit in the AOD Policy. I am therefore satisfied that the conduct occurred (i.e. the breach of the AOD Policy).
The question is then, whether the conduct was sufficiently serious so as to justify dismissal.
One of the contentions of the Applicant was that, because he had not been provided with a copy of the AOD Policy and had not been trained in it he could not be found to have deliberately breached it. I accept that there is no evidence that the Applicant was provided with a copy of or trained in the AOD Policy. I accept that, in drinking at least four cans of Wild Turkey while at work, the Applicant may not have intended to breach the AOD Policy (because he was unaware of it).
However, the unfair dismissal provisions in the FW Act are intended to operate in a common sense way. The procedures and remedies and the manner of deciding and working out remedies are intended to ensure that a 'fair go all round' is accorded to the employee and employer concerned. In the present matter the Respondent operates in a safety critical work environment and the Applicant’s role was crucial to ensuring a safe work environment. In this context, no employee needs to be provided with a copy of the relevant policy or be trained in it before they understand that drinking at least four cans of Wild Turkey while at work is inconsistent with what their employer expects of them. I reject the submission that the Applicant’s lack of awareness of the AOD Policy means that his conduct on 7 April 2018 does not sound a valid reason for the termination of his employment.” [28] – [32]
Work Health and Safety
While DP World was successful in defending the unfair dismissal application, it may have been something of a Pyrrhic victory.
The Commission was very critical of the way DP World managed its work health and safety obligations, to the extent that it said:
“I will be referring this decision, the evidence and the transcript of these proceedings to the compliance unit of Safe Work NSW.” [50]
The Commission made the following observations:
That there were “systemic failures in DP World’s WHS systems that allowed Mr Racek to return to work after he threatened to commit suicide”.
The breach of WHS obligations was a separate matter from the unfair dismissal, although still a matter of "great concern".
It was also of “great concern” that since the incident DP World had done nothing to ensure threats of suicide were reported, and employees were not allowed to return to work.
The Commission said:
“Both Mr Hokke (General Manager Operations – Sydney) and Ms Hucker-Stewart (Human Resources Manager) were intimately involved in the decision to terminate Mr Racek’s employment for his serious safety breach.
However, despite their seniority and obligations to ensure safety in the workplace their evidence was that in the 31 weeks between:
when they learned of Mr Racek’s threat to commit suicide, the failure to report it up the line and his return to the workplace immediately after the threat, and
when they appeared before me,
neither of them had taken any action to ensure that there was no repeat of this failure in DP World’s WHS systems and processes. It was a chilling admission of failure on both their parts.” [50] (my emphasis added)
I said from the outset that I could not hope to canvass all the issues and nuance that this decision raises. I hope, however, that what I have done is given enough food for thought to encourage people to read the full decision for themselves and to look at what it might mean in the context of their organisation.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.