BJCC, you said...
"Start at the beginging. This fictional ATCO is reported because someone smelt alcohol on his breath. The presence of a smell does not prove an offence.
If there is a criminal offence, then 119.5 does not provide enough information in this work of fiction, there are 2 offences, working while unfit, and working with a blood alcohol concentration above a prescribed limit. Insuffcient information is provided to decide which if either offence is apparent.
The fictional management do nothing until some 2 1/2 hours later. They then demand a breath test, something which they have no power to do. Not only that, but where does this magic breath test machine come from? Had the fictional management bought an ESD that alone does not provide evidence that is acceptable in a court. An evidencial breath test machine costs a fortune, and had they got hold of one, they would have found out under what circumstances they can use it.
Given that if action were to be taken against this fictional controller, then any solicitor with half an active brain cell would leap on that point and no doubt be asking for costs as well as large portions of compensation at an industrial tribunal.
Is it negligence? As nothing happened in this story, then negligence does not come into it. Is it aiding and abetting an offence? I would say, no, there is no evidence management know ans activly assist him to commit an offence, mostly because there is no evidence the fictional ATCO has committed an offence."
Do you still assert that 119.5 made this up?