This is a matter of a dismissal of a ferry master found asleep on duty, blaming the use of non-prescription cough mixture.
Full decision: https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc8090.htm
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The applicant was employed as a Ferry Master by the respondent until his dismissal on 23 April 2019. His operations manager boarded the applicant’s ferry, finding the vessel’s engineer attending the wheelhouse and the applicant sound asleep.
Whilst the applicant had full responsibility for the vessel, it was not unusual for another person to take control under supervision.
The applicant was a highly qualified and proficient master mariner (Class 4).
In his own evidence, the applicant stated that:
- He had never been subject to any disciplinary action and that he enjoyed his work as a Ferry Master.
- Following a heart attack in 2015 he was taking four types of heart medication (Brilinta, Lipitor, Coversyl and Aspirin), which thin his blood and lower his blood pressure. He has occasionally missed a dose but has not suffered any adverse effects and holds a full medical clearance to work as a Ferry Master.
- He caught a cold which left him with a persistent cough. As a result, he purchased an over-the-counter cough mixture known as ‘Dry Tickly’ from a chemist. He started to use it and, on the same day he sent by text a picture of one side of the packaging box to his line manager, was noted in response.
- On the side of the box was a warning, which he did not read at the time he took the mixture, stating “This medication may cause drowsiness. If affected do not drive a vehicle or operate machinery.”. The applicant did not send a picture of this side of the box to his line manager, as he did not think to do so, and that he thought that his manager would do the research on whether the cough mixture had any side effects.
- The applicant had been taking the cough mixture for a week before the incident with any ill effects.
- In describing the incident, the applicant put that he began to feel tired and sat down on the settee in the wheelhouse. He then closed his eyes and must have drifted off but believed that he was only “absolutely unconscious” for about five minutes. That is, he did not make a conscious decision to try and have a nap. His falling asleep was an involuntary experience.
At a meeting that ensued, the operations manager advised the applicant that he had observed him asleep, which the applicant did not deny.
The applicant argued that it was never put to him in the investigation that he had been dishonest in his responses to the investigation regarding how long he had been asleep. Nor was it ever put to him that he had contravened the employer’s Drug and Alcohol Policy.
The applicant received a letter summarily terminating his employment, citing:
“… [the respondent] views your actions as serious misconduct and gross negligence in performing your duties in a safety critical role and endangering the safety and security of customers, staff and assets.”
The applicant provided a letter from his doctor:
“[The applicant] informs me that he has been found napping while working as a master on a ferry. [The applicant] had taken a dose of Dry Tickly cough mixture to suppress his cough (10ml approximately). This medication, freely available without a prescription, contains a small amount of codeine which can cause drowsiness. Nigel was unaware of this side effect. Rikodeine, which does require a prescription, has a much higher dose of codeine and would be much more likely to cause fatigue. My impression is that this incident was an innocent error on [the applicant’s] part and given the experience he has had; he will be extra careful in taking medications that may cause fatigue. It would seem that [the applicant] is particularly sensitive to codeine and should avoid its use in the future.
“[The applicant’s] general health is good. He has had a coronary artery stenting in the past and takes medication for this.
He has no issues with sleep apnoea or fatigue in general.”
The Fair Work Commission’s view
Irrespective of whether he was asleep for the entirety of this period, he supervised neither the ferry’s approaches to the wharves nor the berthing, tie-ups and gangway deployment at those wharves, which are the times a ferry is at the greatest risk of incidents. His Honour stating:
“The respondent, in providing a ferry service …, is responsible for public safety. It is simply untenable for a Master of one of its ferries to be asleep for any period while on duty. The ramifications of a safety incident occurring during such a period are considerable”.
In making these comments, his honour referenced a Full Bench of the Commission in Urso v QF Cabin Crew Australia Pty Limited t/a QCCA 67 at ,
“…intention is not a necessary element of misconduct that might constitute a valid reason for dismissal. Breaches of safety policies and procedures may be the result of recklessness, negligence or misjudgement”.
His honour also found that the applicant failed to read the information regarding the possible side effects of taking the cough mixture. He also failed to follow the prescribed dosage, having taken a second dose without allowing for the recommended period of at least six hours to elapse.
“On any account, having the Master of a ferry asleep (without good reason) while on duty when providing a public transport service…cannot be countenanced. [The applicant’s] explanation for falling asleep…falls well short of exculpating his conduct. As the Master, he must remain alert and in control of the vessel at all times, which he failed to do”.
Satisfactory work history weighing in the applicant’s favour
An employee’s long and satisfactory work performance or history, according to his Honour, may be taken into consideration and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable. The applicant has a long history of employment through a succession of employers. However, in this matter, due to the seriousness of the conduct, His Honour was not persuaded that the applicant’s long service and good record make the dismissal harsh, unjust or unreasonable.
“Indeed, on one argument, it is precisely because of his long service that [the applicant] should have been acutely aware that he should never have put himself in the position where he might fall asleep”.
Also considered was the applicant’s personal circumstances
It has long been established that the effects of dismissal on the personal or economic situation of the dismissed employee may be taken into consideration. The applicant has been looking for work, but “word of [his] dismissal has got out on the wharves” and he remains unemployed. His Honour stating:
“I accept that there has been a serious financial impact on [the applicant] due to his failure to secure alternate employment. I am, however, unable to elevate this unfortunate consequence, which often follows a dismissal, to allow a finding that the dismissal was harsh”.
The respondent’s actions in summarily dismissing the applicant was not unfairly dismissed.