A Master claimed he had been unfairly dismissed after failing a pre-joining breath alcohol test. His case was heard in Australia's Fair Work Commission and the decision published online. In Paragraph 122 of the decision, the Commissioner makes specific reference to the perceived binary decision facing the Company's management;
It is not apparent that any other disciplinary outcome was considered for Captain Rust. Whilst I accepted above that [the Company Manager] considered Captain Rust’s response prior to making the decision to dismiss him I am not convinced that he considered if rehabilitation (as is allowed under the Offshore Drug and Alcohol Policy) or any other penalty was a possibility. It appears that the consideration of penalty was binary – dismissal or not dismissal.In this respect the consideration by the Company was, in the circumstances, too narrow and that the Master's dismissal was harsh [Para 126].
In practically interpreting and enforcing an Industry-compliant Drug and Alcohol Policy, the question of the binary penalty remains unresolved. Drugs and alcohol are prohibited aboard offshore supply vessels, rigs and offshore installations for the safety of individuals, assets and the environment. D&A testing is routinely conducted to minimise the probability that individuals affected by alcohol or drugs will, by their actions, contribute to an accident or incident at sea that may harm them and others.
If a drug and alcohol free workplace is established as the industry norm, employees educated in the policy, a testing regime established and penalties for breach understood are there alternatives to the binary penalty? Does an individual stopped by a Police Officer when driving with an excess alcohol content have a non-binary penalty option? Can that individual bargain with the Police Officer that a 'zero tolerance' policy by the Police is unfair and that alcohol or substance rehabilitation is an alternative to the penalty in law after failing a breath test?
Access to non-binary penalties have two critical pre-cursors;
- The prior self-recognition or self-awareness of the issue by the individual, and
- The self-declaration of unfitness or breach by the individual before detection.
The Antipodean Mariner