Following the dismissal of a suicidal worker for breaching his employer’s alcohol and drugs policy, the Fair Work Commission (FWC) has referred details of the case to SafeWork NSW.
Although the FWC found that the worker was not unfairly dismissed – as he was aware of the company’s alcohol and drugs policy and had drunk four cans of Wild Turkey within half an hour of commencing his shift – Fair Work Commissioner Leigh Johns lambasted the employer, port operator DP World, for a number of systemic WHS failures.
Worker’s “diminished mental state” did not justify his breach of policy
The stevedore, who worked at DP World’s Sydney port, said he was suffering from a severe episode of depression and intended to commit suicide on the day of the incident.
After consuming the alcohol to “strengthen his resolve to end his life”, he stood at an open hatch on board a vessel with the apparent intention of jumping off.
He texted a co-worker asking him “Tell my family I love them with all my heart, please, and I’m sorry”.
The co-worker notified a team leader who then spent 30 minutes talking the suicidal worker out of killing himself.
Commissioner Johns said that while he accepted the worker had a “diminished mental state” there was no “independent diagnosis of a recognised psychiatric illness” and that the evidence did “not establish
was unable to understand the wrongfulness of his actions”.
Despite the employer’s reason for the dismissal being valid, its systemic WHS failures were “of great concern”
While Commissioner Johns did not accept that the worker’s dismissal was harsh, he said the employer’s breach of WHS obligations, which was out of the FWC’s jurisdiction, was “a matter of great concern”.
After the worker threatened to commit suicide, he was allowed to return to work. The co-worker and team leader did not suspect the worker had been drinking and it was only after a random alcohol test that they discovered the worker was intoxicated and he was sent home.
Neither the co-worker nor the team leader reported the suicide threat to senior management.
Commissioner Johns said that while two senior managers “were intimately involved in the decision to terminate [the worker’s] employment for his serious safety breach” they had “not 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,” he said.
In the hearing, it was found that another DP World worker based in Brisbane had successfully committed suicide at work about six weeks earlier.
As DP World’s management had not taken any action to protect workers who threaten to commit suicide at work since the incident, Commissioner Johns said he would refer this decision, the evidence and the transcript of the proceedings to the compliance unit of SafeWork NSW.
He further noted that “DP World engaged in adverse action and breached the Disability Discrimination Act 1992 (Cth) (DDA)”.
“If [the worker] wanted to run an adverse action claim he could have (the time commencing the same has now expired). It remains open to [the worker] to bring a DDA claim,” he said.