1
Fair Work Act 2009
s.604—Appeal of decision
Lewis Pitts
v
AGC Industries Pty Ltd T/A AGC
(C2013/1379)
DEPUTY PRESIDENT LAWRENCE
DEPUTY PRESIDENT GOSTENCNIK
COMMISSIONER DEEGAN MELBOURNE, 13 DECEMBER 2013
Appeal against decision [2013] FWC 4501 of Commissioner Cloghan at Perth on 12 August
2013 in matter number U2013/660.
Introduction
[1] Mr Lewis Pitts (Appellant) was dismissed from his employment with AGC Industries
Pty Ltd (Respondent) on 11 February 2013. The dismissal followed Mr Pitt’s failure to
provide a clear drug test demonstrating his capacity to present for and resume work, within a
timeframe prescribed by the Respondent. The Appellant applied to the Fair Work
Commission (Commission) for an unfair dismissal remedy and the matter was heard and
determined by Commissioner Cloghan. On 12 August 2013 the Commissioner dismissed the
Appellant’s application1 and on 2 September 2013 the Appellant lodged a notice of appeal
against the Commissioner’s decision and order.
Factual Context
[2] In the initial proceedings, the following factual matters were not in dispute and we
adopt them for the purposes of deciding this appeal.
[3] The Appellant began his employment with the Respondent on 16 March 2012 and
until his dismissal, he had been working for the Respondent as an advanced scaffolder at the
Alcoa Wagerup Alumina Refinery in Wagerup Western Australia (Wagerup Refinery).
[4] The Respondent has in place an “Alcohol and Other Drugs Policy”2, an “Alcohol and
Other Drugs Guideline”3 and an “Environment, Health and Safety Management Plan”4. Each
1 [2013] FWC 4501; PR540018
2 AB544
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DECISION
E AUSTRALIA FairWork Commission
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of these instruments operated at the Wagerup Refinery and applied to employees of the
Respondent working at the Wagerup Refinery. It also has in place a “Fitness for Work Policy”
5 which deals with, amongst other things, the impact of drugs and alcohol on a person’s
capacity to present for work in a fit and capable state to perform duties safely. In furtherance
of these instruments, the Respondent conducted random drug and alcohol tests on its
employees at the Wagerup Refinery. At the time the Appellant commenced his employment
with the Respondent, he was made aware of the Respondent’s requirement that employees at
the Wagerup Refinery participate in random drug and alcohol testing and accepted
employment on this basis6.
[5] The Respondent conducted a random site-wide drug and alcohol test on its employees
at the Wagerup Refinery on 29 January 20137. During the morning pre-start meeting
conducted that day, the Respondent’s employees (including the Appellant) were informed that
they would be required to undertake a drug and alcohol test8. The Respondent had engaged
SafeWork Laboratories to conduct the drug and alcohol testing9. The random drug and
alcohol testing conducted by the Respondent is a two-stage process. A urine sample provided
by an employee is first tested on site. This test gives a preliminary indication as to the
presence of drugs in the sample tested. If the on-site test shows the presence of drugs, the
urine sample is then sent off site to be tested in a laboratory.
[6] On 29 January 2013 the Appellant submitted to the drug and alcohol test by providing
a urine sample10. The on-site test of the Appellant’s sample indicated the presence of three
substances, namely amphetamines, cannabis and methamphetamines11. Under the
Respondent’s drug and alcohol test regime, a tolerance level of cannabis of up to 50 ug/L is
permitted12.Several other employees of the Respondent who undertook the random drug and
alcohol test on that day also provided urine samples which, when tested, showed the presence
of at least one drug13. The Appellant and the other employees were stood down pending
further testing of their respective samples14.
[7] The suspect urine samples, including the Appellant’s sample, were sent for further
testing at SafeWork Laboratories15. On 30 January 2013 the Respondent received
confirmation from SafeWork Laboratories of the Appellant’s urine sample test result. The
result showed the presence of cannabis at a level of 141 ug/L and of methamphetamines16.
The Applicant was advised of the result and was given until close of business on 1 February
3 AB445-453
4 AB475-536
5 AB543
6 AB465-471
7 AB312 at [53]
8 Ibid at [54]
9 Ibid at [55]
10 Ibid at [57] – [59]
11 Ibid at [60]
12 Ibid at [71]
13 Ibid at [62]; see also [2013] FWC 4501 at [22]
14 Ibid at [63] – [64]
15 Ibid at [68]
16 Ibid at [69] – [70]
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2013 to provide to the Respondent a clear drug test result. He was advised that if he failed to
do so there may be further consequences and that his employment may be terminated17. Other
employees whose test results confirmed the presence of drugs above the Respondent’s
tolerance level were given the same opportunity and advice.
[8] On 31 January 2013 following representations made by the “Automotive, Food,
Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) on behalf of some of the employees, the
Respondent agreed to extend the timeframe within which a clear drug test had to be provided.
The new date was 8 February 2013 and this was communicated to the Appellant18. On 7
February 2013 the Appellant undertook a drug test conducted at Clinipath Pathology the
result of which was provided to the Appellant on 8 February 2013. The result showed that the
urine sample provided by the Appellant for testing was unsuitable as it was too diluted19.
Whilst it was not alleged that the Appellant deliberately diluted the sample, the Appellant
gave evidence that he had consumed two bottles of water in the hours leading up to the test20.
[9] The Appellant contacted the Respondent to explain the outcome of the drug test. He
offered to undertake a further drug test on 11 February 2013 and sought an extension of time
to enable him to provide a clear drug test21. Ultimately the Respondent refused to further
extend the timeframe and confirmed that a clear drug test result was required by close of
business 8 February 2013. When the Appellant failed to provide such a test result the
Respondent decided to terminate the Appellant’s employment. The Appellant was advised of
the termination on 11 February 201322. The termination of the Appellant’s employment was
confirmed in a letter to him dated 12 February 201323.
Approach to the Appeal
[10] A party may only appeal a decision or order made by a single member of the
Commission with the permission of the Commission24. Unlike appeals against decisions made
under other provisions of the Fair Work Act 2009 (Act), permission to appeal a decision
related to an unfair dismissal remedy will only be granted if the Commission considers it to be
in the public interest to do so25. If an error of fact is made by the first instance decision-maker
in an unfair dismissal matter, an appeal will only be available if that error of fact is a
significant error of fact26. More generally, other errors made by a first instance decision-
maker must be of a kind identified in House v King27.
17 Ibid at [76]
18 Ibid at [77] – [79]
19 Ibid at [80] – [82]; AB143
20 [2013] FWC 4501 at [97]; AB221 at [34]
21 Ibid at [83] – [90]
22 Ibid at [91] – [99]
23 Ibid at [100]; AB260
24 Section 604(1)
25 Section 400(1)
26 Section 400(2)
27 (1936) 55 CLR 499; Note also the reference in the Explanatory Memorandum (EM) to the Fair Work Bill 2008 at [2320] to
the decision in Coal and Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 referring to the application of House v
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[11] The question of when it would be in the ‘public interest’ to grant permission to
appeal in accordance with s.400 was considered by a Full Bench of
Fair Work Australia in GlaxoSmithKline Australia Pty Ltd v Makin28. The Full Bench
observed:
“[26] Appeals have lain on the ground that it is in the public interest that leave
should be granted in the predecessors to the Act for decades. It has not been considered
useful or appropriate to define the concept in other than the most general terms and we
do not intend to do so. The expression “in the public interest”, when used in a statute,
classically imports a discretionary value judgment to be made to be made by reference to undefined
factual matters, confined only by the objects of the legislation in question.
[citing O’Sullivan v Farrer (1989) 168 CLR 210]
[27] Although the public interest might be attracted where a matter raises issues of
importance and general application, or where there is a diversity of decisions at first
instance so that guidance from an appellate court is required, or where the decision at
first instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters, it seems to us that none of those elements is present in
this case.”
[12] Further, given the manner in which the Appellant argued his appeal, we also think it is
important to restate a well settled view that the reasons for a decision under review are not to
be construed minutely and finely with an eye keenly attuned to the perception of error.29
Pitts’ Appeal
[13] As is set out in the amended grounds of appeal, the Appellant relies upon five broad
grounds of appeal which are then amplified through a large number of specific examples of
errors said to have been made by the Commissioner. The grounds upon which it is said the
Commissioner fell into error are summarised below:
1. In finding that the Respondent had a valid reason related to the Appellant’s capacity or
conduct for the Appellant’s dismissal. The error is said to arise from the
Commissioner’s:
failure to adequately identify the reason for the dismissal;
failure to direct himself to the right questions;
failure to take into account a number of relevant considerations;
erroneous findings of fact amounting to significant errors of fact; and
King to appeals in the AIRC, and the intention expressed in the EM to maintaining this jurisprudence in relation to FWA
appeals.
28 [2010] FWAFB 5343
29 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1995-96) 185 CLR 259 at 272.
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failure to accord to the Appellant natural justice in the inference said to have
been drawn that the Appellant was to blame for the diluted urine sample
provided by the Appellant for testing on 7 February 2013.
2. In considering the question whether the Appellant was given an opportunity to
respond to the reasons for his dismissal the Commissioner erred by:
directing himself to the wrong question;
failing to properly identify the reasons for the dismissal;
making significant errors of fact in finding that the Appellant was provided
with an opportunity to respond and that the Appellant repudiated his
contract of employment;
3. In his consideration of the impact of the size of the Respondent’s enterprise on the
procedures it followed the Commissioner erred by:
directing himself to the wrong question; and
making a significant error of fact in finding that nothing would have changed
the outcome;
4. In considering any other relevant matters the Commissioner erred by:
failing to consider whether the Respondent’s refusal to extend the 8 February
2013 drug test submission date was unreasonable;
failing to take into account other relevant matters such as the Respondent’s
failure to put its concerns and requirements to the Appellant in writing;
failing to properly consider the Appellant’s particular circumstances; and
making a significant error of fact in finding that the Appellant was given the
same chance as other employees who had initially tested positive during the
random drug tests conducted on 29 January 2013.
5. In finding that the Appellant’s dismissal was not unfair because that finding was
plainly unreasonable and unjust.
We deal with each of these broad grounds in turn below.
The valid reason grounds
Identifying and assessing reason
[14] The Appellant submits that in order to correctly determine whether there was a valid
reason for the Appellant’s dismissal related to his capacity or conduct for the purposes of
section 387(a), the Commissioner first had to adequately identify the reason that is to be
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tested for validity. It was submitted the Commissioner failed to adequately identify the
Respondent’s reason for dismissing the Appellant and so failed to properly assess the validity
of the identified reason. It was also submitted that the Commissioner failed to properly
consider the Respondent’s stated reason for the dismissal and that he should have, but did not
consider:
Whether the positive drug result for cannabis arising from the random drug and
alcohol test conducted on 29 January 2013 was on its own, sufficiently serious to
warrant the termination of the Appellant’s employment;
Whether the Appellant’s failure to provide a clear drug test within the time prescribed
by the Respondent, alone or in combination with the positive result returned on 29
January 2013, provided a valid reason for the Appellant’s dismissal; and
To the extent that the Respondent alleged the Appellant had breached his contractual
and statutory duty of care, whether there had been such a breach.
[15] Consequently without first considering and then making relevant findings about these
matters, it was submitted the Commissioner could not properly assess the validity of the
Respondent’s reasons for dismissing the Appellant from employment.
[16] We do not accept that the Commissioner erred in the manner suggested by the
Appellant. To begin with, after reciting relevant and undisputed background facts, the
Commissioner set out the Respondent’s reason for dismissal as contained in the letter of
termination given to the Appellant on 12 February 201330. For convenience the
Commissioner’s recital of the Respondent’s reason is reproduced below:
“ [40] The relevant parts of the letter of termination of employment are as follows:
“We refer to your recent discussion with Lionel Olyett, Site Manager, who advised you
that your employment had been terminated on the basis that you breached your
obligation to present for work in a fit and proper manner.
Specifically, we refer to the drug and alcohol test that was administered on Tuesday,
29 January 2013...We confirm that your sample returned positive indicators for
[Cannabis] and methylamphetamines in your system. A confirmatory laboratory test
was conducted and the presence of these substances was confirmed. AGC considers
this to be a serious breach of your contractual obligations to present for work in a fit
and proper manner.
In an effort to assist you, AGC gave you an opportunity to produce a clear drug and
alcohol test, which you failed to do. The test result you provided to us on Thursday
7 February 2013 was inconclusive and was not sufficient to demonstrate your fitness for work.
Accordingly, AGC has decided to terminate your employment.”31 (Footnote omitted)
[17] It is clear from the above that the Respondent gave as it’s reason for dismissal the
following:
1. it was a term of the Appellant’s employment that he present for work in a fit and
proper state, namely without trace levels of drugs in his system that were above the
Respondent’s tolerance level;
30 [2013] FWC 4501 at [40]
31 Ibid; See also letter of termination at AB260
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2. on 29 January 2013 he breached that obligation by attending for work with trace levels
of drugs in his system above the Respondent’s tolerance level;
3. he was given a period of time within which to demonstrate his fitness for work; and
4. within that time he failed to do so. As a consequence, his employment was terminated.
[18] The reason for the dismissal which is to be assessed for validity is clearly and
unequivocally identified by the Commissioner. The Commissioner then proceeds to assess
this reason.
[19] In assessing whether the Respondent had a valid reason for the dismissal of the
applicant, the Commissioner identified that the Appellant was aware testing positive for drugs
or alcohol at work was treated seriously by the Respondent32. The Commissioner identified
that by signing his acceptance of the offer of employment, the Appellant acknowledged that
he was aware that the Respondent had a Fitness for Work Policy and was familiar with the
term “fitness for work”33. The Commissioner was satisfied the Appellant was aware that non-
compliance with fitness to work obligations would lead to disciplinary action including the
possibility of dismissal34. It is therefore clear that the Commissioner had correctly identified
the reason for dismissal and was identifying relevant factors which would inform his
conclusion as to whether that reason was a valid reason. There is no appellable error in the
Commissioner’s reasons or conclusions in this regard.
Failing the random drug test - sufficiently serious?
[20] The Appellant says that the Commissioner erred because he did not ask himself or
properly consider whether the positive drug test result on the 29 January 2013 was on its own
sufficiently serious to warrant termination of the Appellant’s employment. It was not
suggested by this submission, or in the proceeding before the Commissioner, that the
Respondent’s stance on fitness for work and random testing was unreasonable. Given the
Respondent’s undertaking at the Wagerup Refinery and the Appellant’s duties as a scaffolder,
such an argument could not seriously be entertained. It seems not to have been disputed in the
proceedings before the Commissioner that the mere positive result of the random test
administered to the Appellant on 29 January 2013, would have resulted in the Appellant’s
dismissal. It would necessarily follow that the positive result, without more, was not regarded
as sufficiently serious to warrant dismissal.
[21] In the circumstances it was not necessary for the Commissioner to ask himself that
question because the Respondent did not allege that the positive drug test on its own would
have warranted the Appellant’s dismissal. Self evidently, the Respondent did not regard the
positive drug test in this way because it did not terminate the Appellant’s employment on 29
January 2013. Instead, it provided the Appellant with an opportunity to submit a clear drug
test which would establish his fitness for work. In our view the Commissioner correctly
assessed the positive random drug test result not in isolation, but as part of the factual matrix
which formed part of the reason for the dismissal. Consequently we do not discern any
appellable error in the reasoning and conclusions of the Commissioner in this regard.
32 Ibid at [69]
33 Ibid at [74]
34 Ibid at [75]
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Failure to provide clear test result as a valid reason
[22] The Appellant then says that the Commissioner did not properly consider whether the
Appellant’s failure to provide a clear drug test by 8 February 2013 alone or in combination
with the positive drug test earlier undertaken provided a valid reason for the Appellant’s
dismissal. There is no real basis for this submission. After examining the extent of the
Appellant’s knowledge of the requirements of the Respondent’s relevant policies, the
Commissioner examined the Appellant’s conduct in organising and undertaking a further drug
test and the circumstances which resulted in the Appellant being unable to comply with the
Respondent’s requirement to supply a clear drug test result by 8 February 201335. The
Commissioner also examined the circumstances which had earlier led to an extension of time
to 8 February 201336, the Appellant’s understanding of the consequences of failing to provide
a clear drug test result by 8 February 201337 and the circumstances in which the Respondent
ultimately refused a further extension of time38.
[23] Having taken these matters into account the Commissioner concluded:
“[109] For the above reasons, I am unable to agree with Mr Pitts’ characterisation that he was
terminated “over a bit of paperwork”. It is far more than that.
[110] In conclusion, I am satisfied that when considering the results of the initial drug test,
the failure to provide a clear test result and all the surrounding circumstances, there was a
valid reason for Mr Pitt’s termination of employment.”39
[24] It is clear that the Commissioner did the very thing the Appellant says he did not do.
That is, the Commissioner concluded the failure to provide a clear drug test result, in light of
the initial positive drug test, in all of the circumstances provided a valid reason for the
Appellant’s dismissal. It was not necessary for the Commissioner to consider whether the
Appellant’s failure to provide a clear drug test result by 8 February 2013, in isolation
provided a valid reason, as the Respondent did not suggest that the failure alone with the
reason for the Appellant’s dismissal.
[25] It follows that we do not discern appellable error in the reasoning and conclusions of
the Commissioner in this regard.
Failure to consider whether duty of care breached
[26] The Appellant says that, as the Respondent alleged that the Appellant had breached his
contractual and statutory duty of care, the Commissioner should have considered whether the
Appellant had in fact breached this duty. In our view this submission misunderstands the
nature of the Respondent’s allegation as set out in the letter of termination to the Appellant.
The Respondent does not say that the Appellant had breached either his contractual or his
statutory duty of care. Rather, the Respondent says that the Appellant’s attendance for work
on 29 January 2013 with trace levels of drugs in his system above the Respondent’s tolerance
35 Ibid at [89] – [96]
36 Ibid at [82]-[87] and [108]
37 Ibid at [85] and [88]
38 Ibid at [96]-[100]
39 Ibid at [109]-[110]
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level was a “serious breach of [his] contractual obligations to present for work in a fit and
proper manner”40.
[27] This is not an allegation that the Appellant has breached his duty of care. This is an
allegation that he breached an obligation under his contract of employment to comply with the
Respondent’s policy, including its Fitness for Work Policy. A critical element of that policy
required the Appellant to present for work in a fit and healthy state, namely to present for
work without trace levels of drugs in his system above the Respondent’s tolerance level.
Although there was some disputation in proceedings before the Commissioner, about whether
the Appellant was “affected by” or “under the influence” of drugs on 29 January 2013, the
fact that the drug test conducted on the Appellant on that day showed that the Appellant had
breached the Respondent’s Fitness for Work Policy was not in dispute. It is this undisputed
fact which underpins the Respondent’s allegation that the Appellant breached his contractual
obligation. As the Appellant’s letter of appointment makes clear, he was required to comply
with this policy, amongst others. There can be little doubt that the Appellant was in breach of
his contractual obligation in failing to comply with the policy41.
[28] It follows that any question about whether the Appellant had breached his duty of care,
whether contractual or statutory was not relevant and the Commissioner was correct in not
considering that question. This was so, despite the Respondent’s submission noted by the
Commissioner at paragraph [51] of his reasons for decision. Contrary to the Appellant’s
submission, although the Respondent had alleged during the proceedings before the
Commissioner that the Appellant was in breach of his duty of care, in our view the
Commissioner was not under any obligation to consider or deal with that argument. Having
concluded that the reason given by the Respondent to the Appellant in its letter of termination
of 12 February 2013 was a valid reason, it was unnecessary for the Commissioner to deal with
the ancillary breach of duty submission of the Respondent. Our observations at [32] later in
these reasons are also apposite here. Therefore we do not discern any appellable error in the
reasoning and conclusions of the Commissioner in not addressing whether the Appellant
breached his duty of care.
Failure to analyse Employer policies and to consider first offence
[29] The Appellant also criticises the Commissioner for failing to deal with the content of
the Respondent’s policies in any satisfactory way. In particular it was submitted the
Commissioner failed to deal with how, under the Respondent’s policies, a first positive drug
test was to be treated in a disciplinary context. In our view the Commissioner did not need to
analyse the Respondent’s policies in the manner suggested by the Appellant. First, the
Appellant was not dismissed because he returned his first positive drug test. Secondly, on
returning his first positive drug test, the Appellant was given three days, which was later
extended to 10 days, within which to provide a clear drug test in order to satisfy the
Respondent that the Appellant was complying with his obligations under the Fitness for Work
Policy.
[30] Thirdly, the Appellant agreed that he would comply with the Respondent’s Fitness for
Work Policy and understood that one consequence of breaching the policy might be the
40 AB260.4
41 AB223.5
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termination of his employment42. On 29 January 2013 the Appellant breached that policy, he
was not immediately dismissed but was given a period within which to demonstrate his fitness
for work. He failed to do so. This was the reason, which the Commissioner concluded was a
valid reason, for the Appellant’s dismissal, and it is erroneous to suggest that, in the
circumstances of this case, the Commissioner should have undertaken an analysis of
disciplinary consequence of a first positive drug test under the Respondent’s policies.
Therefore we do not discern any appellable error in the reasoning and conclusions of the
Commissioner in this regard.
Appellant’s first failed test
[31] The Appellant submits that the Commissioner fell into error in failing to take into
account the fact that the Appellant had not previously failed a drug and alcohol test during his
period of employment with the Respondent. We do not think that this submission is correct.
The Commissioner noted that the Appellant was of the view that he would not be dismissed
for a single instance of returning a positive drug test at work43 but was satisfied that the
Appellant was aware that non-compliance with his fitness for work obligations would lead to
disciplinary action including potentially the ultimate sanction of dismissal44. The
Commissioner is clearly mindful that this was the first occasion on which the Appellant
returned a positive drug test at work since commencing employment on 16 March 2012.
Indeed this was an agreed fact45. It is against this background that the Commissioner’s
conclusion that he was satisfied “when considering the results of the initial drug test, the
failure to provide a clear test result and all the surrounding circumstances”46 (our underlining)
there was a valid reason for the Appellant’s dismissal, must be understood.
[32] The reasons given for a decision by a member of the Commission must articulate the
essential grounds for reaching the decision and must address material questions of fact and
law in a manner that discloses steps which lead to a particular result. It is not however
necessary for the reasons to be particularly lengthy or elaborate. The reasons need not spell
out every detail in the reasoning process or deal with every matter of fact or law which was
raised in the proceeding47. We are satisfied that the Commissioner’s reasons for decision
sufficiently disclose the fact that he took the matter of the positive drug test being the
Appellant’s first such test into account and we do not discern any appellable error in the
reasoning and conclusions of the Commissioner in this regard.
Failure to conclude whether Appellant was impaired by drugs
[33] The Appellant next criticises the Commissioner’s reference at paragraphs [77] and
[78] of his reasons for decision to the Road Traffic Act 1974 (WA) and to the Appellant’s prior
experiences of cannabis consumption and memory loss whilst consuming alcohol. These
paragraphs contain a discussion about whether the Appellant was under the influence of or
affected by drugs on 29 January 2013. The Appellant submits, correctly, that the
Commissioner did not make a finding in relation to whether the Appellant was impaired at
42 Ibid
43 [2013] FWC 4501 at [75]
44 Ibid
45 AB312 at [61]
46 [2013] FWC 4501 at [110]
47 see Barach v University of New South Wales [2010] FWAFB 3307 at [16]
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work on 29 January 2013, but says further, and in our view incorrectly, that a failure to make
such a finding was a significant error of fact.
[34] Whilst we accept that the Commissioner had earlier in his reasons discussed the
Respondent’s attitude to its employees attending for work under the influence of drugs or
alcohol48, the discussion which the Appellant highlights, amounts to no more than an
observation by the Commissioner that the Appellant has a particular view about when and
how he might be under the influence of drugs or alcohol, but that there are other views on this
issue. The Commissioner gives as an example the test in another context, namely driving a
motor vehicle on the road. The Commissioner does not decide whether the Appellant was
“impaired” because he was not required to do so. The Respondent did not allege, nor did it
form part of its reasons for dismissal, that the Appellant attended for work on 29 January
2013 “impaired”, “affected by” or “under the influence” of cannabis. It said that on 29
January 2013 the Appellant attended for work contrary to its Fitness for Work Policy as
evidenced by the undisputed result of the random drug test administered to the Appellant.
Therefore we do not discern any significant error of fact or any other appellable error in the
reasoning and conclusions of the Commissioner in this regard.
[35] Further and related to this point, the Appellant says that the Commissioner fell into
error by referring to the Appellant’s use of cannabis prior to 26 January 2013 and his prior
memory loss after consumption of alcohol. He submits that his evidence about prior use and
experience was irrelevant to the question of whether he was under the influence of cannabis
when he attended for work on 29 January 2013. Consequently by taking this evidence into
account the Commissioner fell into error.
[36] As we have already observed the Commissioner was not required and did not
determine whether the Appellant was under the influence of cannabis when he attended for
work on 29 January 2013. When the Commissioner’s recital of the Appellant’s evidence
about prior use of and experience with cannabis and alcohol is read in context, it is clear the
evidence is recited by reference to the Appellant’s view about when and how such use might
affect him. The Appellant’s prior use and experience is not, on a fair reading of the reasons
for decision, taken into account by the Commissioner when assessing the validity of the
Respondent’s reason for dismissal. Whether the Appellant was “under the influence of
cannabis” when he attended for work on 29 January 2013 did not form part of the
Respondent’s reasons and in our view did not form part of the Commissioner’s assessment of
the validity of the reasons. We do not discern any appellable error in the reasoning and
conclusions of the Commissioner in this regard.
Impermissible inferences and failure to draw other necessary inferences
[37] The Appellant also argues that the Commissioner fell into error because he drew
inferences not open to him on the evidence and failed to draw inferences required by the facts
in a number of significant ways. He says that the Commissioner should have concluded that it
was reasonable for the Appellant to wait until 7 February 2013 to undertake a further test.
Instead the Commissioner seemed to have inferred that it was unreasonable for the Appellant
to wait until that date and that he should have taken the test sooner.
48 [2013] FWC 4501 at [75]
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[38] The Commissioner dealt with this issue as follows49:
“[89] I will now consider the evidence relating to the period between Friday 1 February 2013 when Mr
Pitts was told to provide a clear sample, and Friday 8 February 2013 when the clear sample was to be
sent to the Employer.
[90] During the period 1-8 February 2013, Mr Pitts had control over his own destiny. He had to provide
a clear sample. Mr Pitts had received clear and precise requirements to enable him to return to work. Mr
Pitts also had received well balanced advice from the CFMEU.
[91] In view of his evidence that he was in contact with other employees who had been stood down, it is
possible, but not conclusive, that he was aware that Employee #3 provided a clear sample on
Wednesday 6 February 2013, returned to work and was issued with a final written warning. Further, that
Employee #5 provided a clear sample on Thursday 7 February 2013, returned to work and was provided
with a final written warning.
[92] What did Mr Pitts do?
[93] Mr Pitts gave evidence that he took the test on Thursday 7 February 2013 at 10:30 am. In his
words, “I waited as long as I thought was reasonable...to make sure I could provide a clean sample” .
Further, this would enable Mr Pitts, “to pick up my result on Friday 8 February 2013 between 1:30 pm
and 2:00 pm”.
[94] The risk to Mr Pitts of not providing a clear drug test result was that his employment may be
terminated. How did he respond to that risk? Mr Pitts waited to the last possible moment and gave
himself leeway of approximately 2-3 hours to provide a clean result.
[95] Mr Pitts had a choice to provide a sample for analysis at any time between Thursday 31 January
2013, when he became aware of the extension of time, and Thursday 7 February 2013. Mr Pitts, it
appears, chose that last possible time in which to provide a urine sample.
[96] Mr Pitts could have given a urine sample at any time up to Thursday 7 February 2013 but chose not
to. Only Mr Pitts could have evaluated the results of giving such a sample earlier and the positive
results. The objective was to return a clean sample.
[97] Not only did Mr Pitts accept the risk of waiting to the last possible moment, he also gave evidence,
“in the hours leading up to the test, I drunk 2 normal bottles of water. I did this so I would be able to
pass enough urine at the time of the test. I had drunk this amount of fluid in the past before giving
previous urine samples and had never had a result come back as too dilute”.
[98] On Friday 8 February 2013, Mr Pitts collected the results. Mr Pitts conveyed to the Employer that
the sample provided was not suitable for analysis because it was too dilute. Mr Pitts sought an extension
to provide a clear result by Monday 11 February 2013.
[99] In response to the risk of losing his job - a risk he could not avoid - Mr Pitts waited to the last
possible moment before giving a urine sample and then engaging in an activity which possibly
contributed to a sample that was too dilute.
[100] Having not been able to provide a clean sample by Friday 8 February 2013, Mr Pitts attempts to
transfer the consequences of his actions onto the Employer by seeking a further extension of time. The
Employer declined to accept the consequences of Mr Pitts’ choices and maintained its position that for
the Applicant to return to work, he was required to provide a clear alcohol and drug test result.
49 Ibid at [89]-[101]
[2013] FWCFB 9196
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[101] On Monday 11 February 2013, Employer representatives made the decision that Mr Pitts’
employment should be terminated and he was advised of this by Mr Olyett at approximately 10:00 am.
Mr Pitts’ termination was confirmed in writing on the following day.” (Footnotes omitted)
[39] In our view, it was open to the Commissioner on the evidence to conclude that the
Appellant chose to wait until 7 February 2013 before taking the drug test in full knowledge of
the Respondent’s requirement. It was also open for the Commissioner to conclude that in so
doing, the Appellant took a risk that he might be unable to comply with the requirement and
that his employment might be terminated50. The Appellant explained his reason for waiting
until 7 February 2013. The Commissioner assessed that explanation by reference to the
surrounding circumstances disclosed by the evidence. It was therefore open to the
Commissioner to observe that the Appellant could have, as other employees did, undertaken
the drug test at an earlier time and thereby reduce the risk of non-compliance. It must be
borne in mind that the evidence before the Commissioner was that the Appellant consumed
cannabis on 26 January 2013, the random drug and alcohol test was administered on 29
January 2013 and the initial date for submission of a clear drug test was 1 February 2013. The
date was extended to 8 February 2013. Some 13 days had passed between the Appellant’s
consumption of cannabis and the day he chose to undertake a further test.
[40] There was no evidence before the Commissioner that the Appellant was unable to
undertake a further test before 7 February 2013. There was evidence that two employees who
were also tested on 29 January 2013 and who had both recorded higher readings of cannabis
levels than the Appellant, both returned clear drug test results on 6 and 7 February 2013
respectively51. We do not think that it is proper to characterise the Commissioner’s discussion
of the Appellant’s conduct between 1 February 2013 and 8 February 2013 as drawing an
inference that it was unreasonable for him to wait until 7 February 2013 to undertake a drug
test. Rather we think the Commissioner was making the obvious point, that the Appellant took
a risk by deciding to take the test when he did and not earlier. The Commissioner’s discussion
reproduced above answers the suggestion of the Appellant that it was reasonable in the
circumstances for him to wait until the last possible moment for him to undertake the test.
Given the passage of time since the last consumption of cannabis, it was reasonable to expect
that the Appellant would take a test at a time which would allow him to take the further test if
the test was either inconclusive or still recorded trace levels of cannabis above the
Respondent’s tolerance threshold. Therefore we do not discern any significant error of fact or
any other appellable error in the reasoning and conclusions of the Commissioner in this
regard.
[41] The Appellant next takes issue with the Commissioner’s finding that the Appellant
attended for work on 29 January 2013 “with methamphetamines in his system”52. The
Appellant submits that it is readily apparent that the Commissioner drew a negative inference
from that finding. Such an inference was not available because the confirmatory test showed
the presence of methamphetamines was below the Respondent’s tolerance level. The first
observation we make is that as a matter of strict factual finding it is undeniably the case that
on 29 January 2013 the Appellant attended for work with trace levels of methamphetamines
in his system. This is what the drug and alcohol test conducted at the workplace showed on
that day. Secondly, the Appellant’s submission is in our view an example of the decision
50 See AB313 at [76];
51 [2013] FWC 4501 at [19] and [22]
52 Ibid at [107]
[2013] FWCFB 9196
14
under review being construed too minutely and finely with an eye keenly attuned to the
perception of error.
[42] When read in context, the Commissioner is observing that on 29 January 2013 the
Appellant attended for work with cannabis and methamphetamines in his system as a
precursor to his observation that the Appellant thereafter ignored the employer’s direction to
take a taxi because the Appellant was of the view that he was not under the influence of drugs.
At that time the precise levels of cannabis and methamphetamines in the Appellant’s system
were not known, the test administered merely indicated the presence of these substances. We
do not find any significant error of fact or any other appellable error in the reasoning and
conclusions of the Commissioner in this regard.
[43] The Appellant also argues that the Commissioner fell into error by drawing a negative
inference arising from the Appellant’s evidence that in the hours before undertaking the drug
test on 7 February 2013 he had consumed two bottles of water and that he did so to be
confident that he could pass enough urine at the time of the test. In connection with this point
the Appellant says that the Commissioner failed to accord natural justice to the Appellant by
not giving him an opportunity to respond to the conclusion that the Appellant had undertaken
an activity that possibly contributed to the urine sample passed by the Appellant on 7
February 2013 to be too dilute.
[44] The Appellant gave the following evidence in proceedings before the Commissioner:
“In the hours leading up to the test I drunk (sic) about 2 normal bottles of water. I did this so that I
would be able to pass enough urine at the time of the test. I had drunk this much fluid in the past before
giving previous urine samples and had never had a result come back as being too dilute”53
[45] That evidence was in our view given for two purposes - as an explanation of a possible
cause or contributor to the dilute nature of the urine sample and as evidence that if the
consumption of water did so contribute, then given his past experience, the Appellant could
not have foreseen that result. The Commissioner does not find that the Appellant consumed
the water to deliberately dilute his urine sample nor that the consumption of water actually
contributed to the dilution. The Commissioner’s observation that the Appellant engaged in an
activity which possibly contributed to a sample that was too dilute seems to us to be
consistent with one of the two purposes for which the evidence noted above was offered.
[46] When read in context the inference that the Commissioner has drawn was that in
circumstances where the Appellant has left little margin for error by reason of his decision to
undertake the test on 7 February 2013, and with the real possibility that his employment might
be terminated if he was unable to provide a clear drug test, the Appellant was unwise to have
consumed two bottles of water. We think that such an inference was open to the
Commissioner. This is particularly so given the purpose for which the evidence was offered.
Further, we do not accept that there was a denial of natural justice in not putting to the
Appellant directly that he had engaged in activity that possibly contributed to the urine sample
being too dilute because this is precisely one possible explanation that the Appellant offered
in his evidence noted above. Consequently we do not identify any appellable error in the
Commissioner’s reasoning and conclusion in this regard.
Impermissible consideration of post dismissal events
53 AB221 at [34]
[2013] FWCFB 9196
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[47] The Appellant submitted that the Commissioner fell into error in considering events
after the Appellant was dismissed as part of the Commissioner’s assessment of whether there
was a valid reason. The Appellant points to the Commissioner’s reference at paragraph [108]
of his reasons for decision, to a conversation with Mr Heathcote, a CFMEU organiser and his
advice to the Appellant to retake the test as quickly as possible. Therefore, so the Appellant
submits, the Commissioner’s conclusion that “in not taking the benefits of … the CFMEU
advice, the consequences fall squarely on Mr Pitts’ shoulders”, was a factor the Commissioner
took into account in assessing the validity of the Respondent’s reason for dismissal and was
an irrelevant consideration.
[48] It is necessary to set out the full text paragraph [108] of the Commissioner’s reasons
for decision.
“[108] Notwithstanding the AMWU obtaining an extension of time to provide a clean drug and alcohol
sample and the CFMEU giving sound and sensible advice to supply a clean result and cooperate with
the Employer, Mr Pitts decided to “do his own thing”. In not taking the benefits of the extension of time
and the CFMEU advice, the consequences fall squarely on Mr Pitts’ shoulders. The AMWU and
CFMEU are not able to help their members from themselves after the event.”54
[49] The reference to the “sensible advice to supply a clean result and cooperate with the
employer” is a reference to advice given by Mr Heathcote to the Appellant on 31 January
2013, well before the date on which the Appellant was dismissed from his employment. So
much is clear on the evidence given by Mr Heathcote. Mr Heathcote’s evidence was as
follows:
“I had further contact with the Applicant on Thursday, 31 January 2013 he called me about being stood
down for failing a drug and alcohol test stop at this time I was not aware that a number of employees at
the Wagerup site had failed drug and alcohol tests. I discussed the applicant’s circumstances with him.
The Applicant was seeking advice about the situation. I advised him to do what he could to make sure
he provided a clear test result and to cooperate with the Respondent over the matter.
I later had contact with their AMWU representative, Mr Simon Rushton, who is an Organiser. Mr
Rushton explained the situation to me and that he had managed to secure extra time for the workers who
had failed the test to provide a clear test result.”55 (Our underlining)
In the circumstances this ground of appeal is misconceived.
Impermissible consideration of conduct after random drug test
[50] The final argument advanced under this broad ground of appeal is that the
Commissioner fell into error in taking into account the fact that the Appellant drove himself
home after returning a positive result to the drug and alcohol test on 29 January 2013. The
Commissioner made two references to this issue in his reasons for decision. Both references
are reproduced below:
54 [2013] FWC 4501 at [108]
55 AB268 at [16] – [18]
[2013] FWCFB 9196
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“[80] Firstly, after returning a positive drug test for Cannabis, amphetamines and methamphetamines,
Mr Pitts was “stood down without pay subject to further testing by a laboratory...I was told that I should
organise a taxi home and that I would be contacted after the lab results are returned...As I was not
under the influence of any drugs or alcohol I drove myself home”. Clearly, there appears to be a gap
between the Employer’s instructions and Mr Pitts’ actions.
. . .
[107] Irrespective of the above matters which the Employer took into consideration in dismissing the
Applicant, the facts and evidence of this application give light to Mr Pitts turning up for work with
Cannabis and methamphetamines in his system. After returning a positive drug result, Mr Pitts ignored
the Employer’s direction to get a taxi home because he self determined that he was “not under the
influence of drugs”. Further, despite advice to cooperate with the Employer, determined when it was
convenient for him to speak to the Employer on the issue.”56 (Footnotes omitted; emphasis in original)
[51] It seems clear that in both cases the Commissioner is seeking to highlight the fact that
the Appellant had just returned a positive drug test but despite the advice or instruction from
his employer that he not drive, the Appellant believed that he was not under the influence of
drugs and decided to ignore the advice. The advice or instruction given by the must be
understood in the context of Respondent’s “Alcohol and Other Drugs Guidelines”57 which
relevantly provides as follows:
“5.12 Where a Person is Unfit for Work
In all circumstances, when an individual is deemed unfit for work for any reason (failure to pass
a random test or a for cause test, but not as a voluntary admission) the following action shall be
taken:
The supervisor shall ensure that the individual is removed immediately from the
workplace and transported to their place of abode; under no circumstances shall the
individual be permitted to drive a vehicle. . . .”58 (our underlining)
[52] In this context the observations of the Commissioner are clearly relevant to assessing
the validity of the reason for the Appellant’s dismissal as they underscore the Appellant’s
level of regard for the Respondent’s policies which are designed to safeguard the well-being
of the Appellant and other employees. We do not identify any appellable error in this regard.
Opportunity to respond to reason for dismissal grounds
[53] Under this ground of appeal, the Appellant says that the Commissioner failed to
properly consider whether he was given an opportunity to respond to the reason for his
dismissal. This is because the Commissioner asked himself the wrong question in examining
whether the Appellant had been given an opportunity to respond to the positive drug test
undertaken on 29 January 2013 by providing a further clear drug test and thereby returning to
work. To the extent that the Appellant submits that the Commissioner erred, under this ground
of appeal by failing to properly identify the reason for the dismissal, we reject that submission
for the reasons given earlier above.
56 [2013] FWC 4501 at [80] and [107]
57 AB445
58 AB453
[2013] FWCFB 9196
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[54] In considering whether the Commissioner was satisfied that the dismissal of the
Appellant was harsh, unjust or unreasonable the Commissioner was required to take into
account, inter alia, whether the Appellant was given an opportunity to respond to any reason
related to his capacity or conduct.59 This opportunity must have been afforded to the
Appellant before a decision to dismiss is made60. The process involved in providing the
Appellant with such an opportunity does not require formality and is to be applied in a
common sense way, to ensure that the Appellant has been treated fairly61. In this regard we
reject so much of the Appellant’s submissions which asserts that this requires an employer to
conduct a meeting with the employee to inform the employee of the reasons for the proposed
dismissal or otherwise provide the employee with an opportunity to address the concerns in
writing.
[55] In our view where it is clear that an employee is aware of the precise nature of the
employer’s concern related to that employee’s conduct or capacity, and has a full opportunity
to respond to this concern, this adequately satisfies the requirement of s 387(c) of the Act62.
[56] The Appellant was aware of the Respondent’s concern, that is, that the Appellant
attended for duty on 29 January 2013 contrary to its Fitness for Work Policy with which he
had agreed to comply. The Appellant was also aware of the Respondent’s concern that the
Appellant provide evidence of his fitness for work by way of a clear drug test by 8 February
2013. The Appellant did not dispute the accuracy of the drug and alcohol test administered on
29 January 2013. He did not dispute that the trace level of cannabis detected in his system
more than exceeded the Respondent’s tolerance level. The Appellant did not dispute that he
was fully aware that he had to demonstrate his fitness for work by providing a clear drug test
to the Respondent by 8 February 2013. The Appellant was also aware that a consequence of a
failure to satisfy the Respondent of his fitness for duty by providing a clear drug test by 8
February 2013 may be the termination of his employment. The Appellant did not provide a
clear drug test by the due date and he telephoned the Respondent to explain his reasons for
being unable to comply. The following were agreed facts in proceedings before the
Commissioner:
“83. Following receipt of the drug test results the Applicant contacted the Respondent’s Safety Adviser
regarding the drug test results.
84. The told the Applicant that he would contact HR to see if the timeframes could be extended.
85. The Safety Adviser called the Applicant back and informed him that only Mr Olyett could approve
extending the cut-off date from Friday to Monday.
86. The Applicant sent a copy of the drug test results to the Respondent.
87. On Friday, 8 February 2013, the Applicant telephoned Mr Olyett.
88. The Applicant explained that he was unable to supply a clear test result that day as his test sample
was found to be too dilute.
59 Section 387(c)
60 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137
61 Gibson v Bosmac Pty Ltd (1995) 60 IR 1; cited and adopted in RMIT v Asher (2010) 194 IR 1
62 Gibson v Bosmac Pty Ltd (1995) 60 IR 1 at 7
[2013] FWCFB 9196
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89. The Applicant told Mr Olyett that he would not be able to provide you results until Monday
afternoon and explained to him why this was.
90. The Applicant offered to take another test on Monday, 11 February and asked for an extension of
time.
91. Mr Olyett said that he would have to consult with its Human Resources Department and call him
back.
92. After conferring with the Respondent’s Human Resources Department Mr Olyett Calder the
Applicant and confirmed with him that a clear test result was required by the end of the day.”63
[57] It was also an agreed fact that the applicant’s employment was terminated on Monday,
11 February 201364. When the evidence as a whole is examined, it seems to clearly indicate
that the Appellant was aware of the precise nature of the Respondent’s concerns about his
conduct or capacity, that this concern may result in his dismissal if not addressed and that
between 29 January 2013 and 8 February 2013, the Appellant was given a full opportunity to
respond to this concern. It is against this evidentiary background that the Commissioner’s
finding that:
“[113] As a matter of fact, it was the Applicant who had been given the opportunity to respond to a
positive drug result on attending work and return to work. Mr Pitts failed to do so.
[114] Having failed to meet the threshold requirement to return to work, Mr Pitts was dismissed . . .”65,
must be read and understood, and it is apparent that the Commissioner properly considered
and applied the consideration in s 387(c) of the Act.
[58] The Appellant next says that the Commissioner’s reference at paragraph [114] of his
reasons for decision to the Appellant’s repudiation of his contract of employment was a
significant mistake of fact, and not open on the evidence. First, we observe that the
Commissioner’s comments are clearly obiter. Secondly, the observation is made in an attempt
to explain in another way, the state of affairs that prevailed when the Appellant was
dismissed, namely that he was not able to demonstrate his fitness for work. Thirdly, were it
necessary to do so, it seems to us clearly open to conclude that, a continuing failure to
demonstrate his fitness for work (for more than 13 days as at the date of his dismissal) in
accordance with the Respondent’s Fitness for Work Policy, with which the Appellant agreed
to comply when accepting employment, amounts to an intention no longer to be bound by his
contractual obligations, and is consistent with a repudiation. We do not discern any significant
error of fact or any other appellable error in the reasoning and conclusions of the
Commissioner in this regard.
Likely impact of size of Respondent’s enterprise on procedure followed by Respondent
[59] The essential criticism of the Commissioner’s decision under this ground is that the
Commissioner did not properly consider whether the Respondent’s failure to put its concerns
in writing or to give him an opportunity to respond was impacted by the size of the
Respondent’s enterprise. Given the Respondent’s large size and the resources available to it, it
63 AB314
64 AB314 at [99]
65 [2013] FWC 4501 at [113]-[114]
[2013] FWCFB 9196
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is said that there was no justification for its failure to do so and the Commissioner should
have so concluded. As we have earlier noted, there is no particular formality required to
afford an opportunity to an employee to respond to reasons for the dismissal. Much less was
there a requirement that such an opportunity be provided in writing in this case.
[60] It is one thing to observe, as the Commissioner does, that it is preferable to reduce to
writing an employer’s expectation66. It is quite another to suggest that such a requirement is
mandatory, at least in respect of large organisations. In our view the Commissioner rightly
concluded that the absence of written communication was not fatal to the process adopted by
the Respondent. That view was clearly open having regard to the matters that were agreed
facts at paragraph [56] above. We do not discern any significant error of fact or any other
appellable error in the reasoning and conclusions of the Commissioner in this regard.
Failure to consider other relevant matters
[61] Under this general ground of appeal the Appellant identifies a number of matters
which he says the Commissioner should have, but failed to consider in assessing whether the
Appellant’s dismissal was harsh, unjust or unreasonable.
Reasonableness of refusal to extend time
[62] First the Appellant says that the Commissioner failed to consider whether the
Respondent’s refusal to extend the timeframe within which the Appellant could provide a
clear drug test was reasonable. In making this assessment the Appellant says that the
Commissioner failed to take into account the following matters:
The Respondent’s reason for requiring a clear drug test was to give the Appellant, and
other employees who tested positive for drugs on 29 January 2013, an opportunity to
remain employed;
The Appellant’s offer to undertake a new test and could do so within a very short
timeframe;
The lack of evidence of prejudice to the Respondent in permitting an extended
timeframe;
That the Appellant had been stood down since 29 January 2013 without pay and that
he had a current workers compensation claim; and
The evidence that there were circumstances in which the Respondent would have
extended the timeframe.
[63] In our view it is manifestly clear that the Commissioner considered the reasonableness
of the Respondent’s refusal to extend the timeframe. To begin with, the Commissioner noted
that the original deadline of 1 February 2013 had been extended to 8 February 201367 and that
the Appellant understood that he was required to provide a clear drug test by that date68. Next
the Commissioner observed that two other employees who had recorded trace levels of
cannabis higher than that recorded by the Appellant provided clear drug tests on 6 and 7
66 Ibid at [120]
67 Ibid at [85]-[87]
68 Ibid at [88]
[2013] FWCFB 9196
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February 2013 and were permitted to resume work69. The Commissioner then assesses the
Appellant’s conduct in leaving little margin for error by undertaking a drug test, the result of
which would not be known until the day he was required to submit the test results to the
Respondent70. Finally, the Commissioner considered the circumstances in which the request
for an extension was made, including the fact that the Appellant was advised by his union
representative to retake the test as quickly as possible, but the Appellant did not do so71.
[64] Although these matters are considered by the Commissioner under the rubric of “valid
reason”, we discern that the Commissioner was turning his mind to the reasonableness of the
Respondent’s refusal to allow the Appellant an extension of time. It is plainly the case, having
regard to the Commissioner’s conclusion, that he came to the view that it was not
unreasonable. Having done so, it was unnecessary for the Commissioner to separately
consider this issue under s 387(h) of the Act.
[65] As to the Appellant’s identification of matters, in assessing reasonableness, that should
have been taken into account by the Commissioner, we observe that:
The Commissioner took into account the Respondent’s reasons for allowing the
Appellant the opportunity to provide a clear drug test. At paragraph [82] the
Commissioner noted that the Respondent made the decision “on the basis that [it]
wanted to give the employee a chance to remain employed”. In his consideration of
other matters, the Commissioner noted that “the employer provided Mr Pitts with a
second chance”72 and was thereby clearly taking that matter into account.
The Commissioner also considered the Appellant’s offer to take a new test and his
ability to do so in a very short timeframe. At paragraph [98] of his decision the
Commissioner noted that the Appellant “sought an extension to provide a clear result
by Monday, 11 February 2013”. This offer is then assessed against that which the
Appellant actually did:
“[103] On 11 February 2013, Mr Pitts telephoned Mr Heathcote and informed him that he was
being dismissed because he had not provided a clear sample by the Employer’s deadline. Mr
Heathcote’s oral evidence was that he advised Mr Pitts to retake the test as quickly as possible. In
Mr Heathcote’s words, “I just advised him what I best thought was the best outcome for him to
do”.
[104] Despite this sensible advice, Mr Pitts chose to wait until 14 March 2013 to provide a clean
result and this was provided to the Employer on 29 April 2013 as part of procedural directions.”73
(Footnotes omitted)
Although the Commissioner does not appear to have turned his mind to the question of
the lack of any evidence of prejudice that might have been suffered by the Respondent
had it allowed an extension, we do not regard this omission as particularly significant.
Moreover, it seems to us clear that the Commissioner was mindful that having given
each of the employees who returned a positive drug test on 29 January 2013 the same
69 Ibid at [91]
70 Ibid [92]-[98]
71 Ibid [98]-[104]
72 Ibid at [124]
73 Ibid at [103]-[104]
[2013] FWCFB 9196
21
opportunity to provide a clear drug test by 8 February 2013, allowing an extension in
the circumstances would have detracted from the Respondent’s desire to take firm, but
equitable action in relation to employees who tested positive for drugs while at work74.
Without any evidence that the Appellant’s medical condition or that the fact he had
been stood down, impeded his capacity to provide a clear drug test, we do not regard
these matters in isolation as particularly relevant to the question of whether the
dismissal was harsh, unjust or unreasonable or whether the Respondent’s refusal to
allow a further extension of time to the Appellant was reasonable. The Commissioner
was critical of the Appellant because he delayed taking the drug test until the last
possible moment thereby leaving no margin for error in the drug testing process. He
weighed this in the balance in assessing the reasonableness of Respondent’s refusal in
the context of assessing whether there was a valid reason. Neither the Appellant’s
status as an employee who had been stood down, nor as one with a current workers
compensation claim seem to us relevant to that assessment, and the Commissioner did
not err in not taking these matters into account.
That the Respondent conceded there were circumstances in which it would have
extended the timeframe is not, in and of itself, particularly relevant. The relevant
question, under this ground of appeal as argued, was whether in the circumstances
faced by the Appellant and the Respondent at the time that the request for extension
was made, was it reasonable for the Respondent to refuse the request? The
Commissioner is clearly of the view that it was. That the Respondent might in other
circumstances grant an extension shows only that it is not rigid in its approach. Absent
any evidence that those other circumstances demonstrate that the refusal in the
Appellant’s circumstance was unreasonable, we see no basis for suggesting that the
Commissioner should have taken that matter into account.
[66] The Commissioner correctly approached his consideration of the reasonableness of the
Respondent’s refusal to extend time and we do not discern any appellable error.
Performance record etc
[67] Next the Appellant says that the Commissioner erred in failing to take into account the
Appellant’s good performance record, the Respondent’s failure to put its concerns in writing
and that at the time of his dismissal, the Appellant had injured his knee and was not
performing his usual duties. We do not accept that this submission is correct. First, we note
that the Appellant’s period of employment was relatively short. Secondly the Commissioner
noted that in coming to the decision to dismiss the Appellant, the Respondent took into
account the Appellant’s general performance and his length of employment75. Thirdly, we
have earlier concluded that it was unnecessary for the Respondent to put its concerns and
requirements to the Appellant in writing, but in any case the Commissioner did take that
matter into account76. Finally, we do not consider the fact that the Appellant was not fit to
perform his usual duties at the time of his dismissal to be relevant. The Respondent’s Fitness
for Work Policy applies to all employees working at the Wagerup Refinery irrespective of the
duties they perform. The object in providing a clear drug test was to show that the Appellant
could comply with the policy and be permitted to resume work, irrespective of the duties that
74 Ibid at [124]
75 Ibid at [106]
76 Ibid at [120]
[2013] FWCFB 9196
22
he could actually undertake. The Commissioner was correct in not taking that matter into
account.
Circumstances particular to the Appellant
[68] The Appellant says the Commissioner did not properly consider the Appellant’s
particular circumstances and was in error in concluding that the Appellant was given the same
chance as the other offending employees. This is because the two other employees were able
to submit a definitive test while the Appellant was denied the opportunity because he was not
given additional time. In our view, the Commissioner was correct to conclude that the
Appellant was treated in the same way and given the same opportunity as other employees
who tested positive for drugs on 29 January 2013. The Commissioner did take into account
the Appellant’s particular circumstances but concluded that these circumstances were brought
about by the Appellant’s own conduct in delaying taking the drug test until 7 February 2013.
The delay meant that a result would not be available until the day that it was due to be given
to the Respondent. There was no margin for error.
[69] The Commissioner noted that the other employees took the test at an earlier date and
were thus able to comply. The other employees were able to submit a clear test. The
Appellant was not. He was unable to comply not because of differential treatment by the
Respondent but because of his conduct in delaying taking the test meant that he had
insufficient time to retake the test and comply with the Respondent’s timeframe. The
Appellant had sufficient time within which to take the test. The fact that the Appellant did not
comply with the Respondent’s requirement within the timeframe given to all employees is not
a basis for suggesting that the Commissioner was in error concluding that each of the
employees was given the same chance. This is not a case where the reason that the Appellant
did not comply was because the Appellant was wholly blameless and did not contribute to the
circumstances resulting in non-compliance. Here, as the Commissioner correctly observed,
the employee actually contributed to the outcome because of his delay in acting. We think the
Commissioner properly considered these issues and we do not identify any appellable error.
Manifest injustice ground
[70] Under this ground of appeal the Appellant says that even if the nature of the error
made by the Commissioner is not discoverable or identified, upon the facts and circumstances
of this case the decision reached by the Commissioner was unreasonable or plainly unjust and
we should therefore exercise our discretion on the basis that a substantial wrong has
occurred77. The Commissioner found that the Appellant was aware of the Fitness for Work
Policy. The Appellant had agreed to comply with it. He did not comply with the policy on 29
January 2013. He was given until 8 January 2013 to demonstrate that he would comply with
the policy. Other employees were given the same opportunity and did comply. The Appellant
did not, for reasons largely due to his own conduct. He was dismissed as a consequence. The
Appellant had been given an appropriate opportunity to respond to the reasons for his
dismissal before he had been dismissed. That dismissal was not harsh, unjust or unreasonable.
We see nothing unreasonable or that it is plainly unjust in the Commissioner’s decision and
therefore reject this ground of appeal.
Disposition of Appeal
77 See House v The King (1936) 55 CLR 499 at 505
[2013] FWCFB 9196
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[71] As is apparent from our reasons above, we have not identified any significant error of
fact or any other appellable error in the reasoning or conclusions of the Commissioner.
[72] Furthermore the matters raised in this appeal do not concern issues of importance and
general application. This is not a case where there is a diversity of decisions at first instance
so that guidance from an appellate tribunal is required, where the decision at first instance
manifests any injustice or the result is counter intuitive, or that the legal principles applied
appear disharmonious compared with other recent decisions dealing with similar matters.
Consequently this is not a case in which permission to appeal ought properly to be given.
[2013] FWCFB 9196
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Conclusion
[73] Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
J. Nicholas for the Appellant
W.Edwards for AGC Industries Pty Ltd
Hearing details:
2013
Perth.
30 October
Printed by authority of the Commonwealth Government Printer
Price code C, PR544870
OF FAIR WORK COM 10 AUSTRALIA THE SEAL
