1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Lewis Pitts
v
AGC Industries Pty Ltd T/A AGC
(U2013/660)
COMMISSIONER CLOGHAN PERTH, 12 AUGUST 2013
Application for relief from unfair dismissal.
[1] This is an application in which Mr Pitts is seeking a remedy for alleged unfair
dismissal.
[2] On 29 January 2013, Mr Pitts failed an alcohol and drug test administered by his
Employer. After confirmatory laboratory testing which indicated the presence of Cannabis
and methamphetamines in his system, Mr Pitts was initially given until 1 February, and later,
8 February 2013 to provide a clear test result. Mr Pitts failed to do so by 8 February 2013 and
was dismissed by his Employer on 11 February 2013.
PROCEDURAL BACKGROUND
[3] On 5 March 2013, Mr Lewis Pitts (Applicant) made application to the Fair Work
Commission (Commission) seeking a remedy for alleged unfair dismissal from AGC
Industries Pty Ltd (AGC or Employer) pursuant to s.394 of the Fair Work Act 2009 (FW
Act).
[4] The application was unable to be resolved at conciliation and referred to me for
arbitration on 5 April 2013.
[5] Procedural directions were issued on 10 April 2013 and arbitration took place on
28 June 2013.
[6] At the hearing on 28 June 2013, Mr Pitts was represented by Mr M Swinbourn, Senior
Industrial Officer, Construction, Forestry, Mining and Energy Union (CFMEU). The
Applicant gave evidence on his own behalf together with Mr P Heathcote, Organiser,
CFMEU.
[2013] FWC 4501 Note: An appeal pursuant to s.604 (C2013/1379) was
lodged against this decision - refer to Full Bench decision dated 13
December 2013 for result of appeal.
DECISION
AND
REASONS FOR DECISION
AUSTR FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2013fwcFB9196.htm
[2013] FWC 4501
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[7] The Employer was represented by Ms E Buchanan, Senior Employee Relations
Advisor. Mr Olyett, AGC Site Manager at the Alcoa Wagerup alumina refinery gave
evidence on behalf of the Employer.
[8] At the conclusion of the hearing, I reserved my decision. Having considered the
documentary material as a result of the procedural directions, evidence and submissions, this
is my decision and reasons for decision.
RELEVANT BACKGROUND
[9] The Employer is engaged as a contractor to provide maintenance services to Alcoa of
Australia Limited at its Kwinana, Pinjarra and Wagerup alumina refineries in Western
Australia.
[10] The Employer employs around 60 employees at the Wagerup refinery.
[11] Mr Pitts commenced employment as an Advanced Scaffolder on 16 March 2012 at the
Wagerup refinery.
[12] Mr Olyett commenced as the Wagerup Site Manager on 8 August 2012.
[13] On 29 January 2013, the Employer conducted a site-wide drug and alcohol test at the
Wagerup refinery.
[14] In the test, it was possible to detect the following substances:
Amphetamines;
Benzodiazepine;
Cannabis;
Opiates;
Methamphetamine; and
Cocaine.
[15] Mr Pitts undertook the test and his test sample indicated the presence of:
Amphetamines;
Cannabis; and
Methamphetamines.
[16] Of the 56 employees, seven (7) employees provided positive results which required
further testing by a laboratory.
[17] All employees, including the Applicant, were stood down until the laboratory results
were returned.
[18] On 30 January 2013, the Employer received the results of Mr Pitts’ confirmatory test
results.
[19] The confirmatory test results indicated the presence of:
[2013] FWC 4501
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Cannabis 141 ug/L
Methamphetamines.
[20] While the laboratory cut off for Cannabis is 15 ug/L, the Employer had a 50 ug/L
threshold.
[21] The trace detection of Methamphetamines was not consistent with the stated
medications of Brufen and Codeine, however, it was below the Employer’s threshold cut off
level.
[22] The circumstances of the other six (6) employees were as follows:
Employee #1:
Presence of Cannabis but below the Employer’s then cut off level. Issued with a
written warning on return to work.
Employee #2:
Presence of Codeine but consistent with declared medication. Returned to work - no
further action.
Employee #3:
Presence of Cannabis at a higher level than the Applicant (222 ug/L). Provided a clear
sample on Wednesday 6 February 2013, returned to work and was issued with a final
written warning.
Employee #4:
Presence of Cannabis albeit below the cut off limit, Methamphetamines and
amphetamines. Employee’s employment terminated on the basis that he had already
received a final written warning prior to the drug test being conducted.
Employee #5:
Presence of Cannabis at a higher level than the Applicant (201 ug/L). Provided a clear
sample on Thursday 7 February 2013, returned to work and was provided with a final
written warning.
Employee #6:
Presence of prescribed medication. The employee returned to work - no further
action.
[23] The Employer made a decision to give employees above who had returned a positive
test, and the Applicant, until close of business on 1 February 2013 to provide a clear test.
[24] Mr Olyett attempted unsuccessfully to contact the Applicant on Wednesday
30 January 2013 to advise him of the confirmatory test results.
[25] On Thursday 31 January 2013, after several attempts, Mr Olyett spoke with the
Applicant and advised him as follows:
his laboratory test result had been received and it confirmed a positive result;
[2013] FWC 4501
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he had until close of business on Friday 1 February 2013 to provide the Employer with
a clear drug test result;
if he provided the Employer with a clear test result by 1 February 2013, he would be
allowed back at work but be subject to disciplinary action; and
if he did not return a negative result, there may be further consequences and that his
employment may be terminated.
[26] Following discussions with the Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU),
the Employer agreed to extend the deadline to provide a clear test until 8 February 2013.
[27] On the afternoon of Thursday 31 January 2013, Mr Olyett unsuccessfully attempted to
contact the Applicant and advise him of the extension of time.
[28] On Friday 1 February 2013, Mr Olyett informed Mr Pitts that the time to provide a
clear drug test had been extended from 1 February 2013 until close of business Friday
8 February 2013.
[29] On Thursday 7 February 2013 the Applicant undertook a drug test.
[30] On Friday 8 February 2013, the Applicant obtained the results of the drug test.
[31] The drug test states:
“Comments
Not suitable: Creatinine 1.8 mmol/L. Please note this sample is very dilute and
unsuitable for the assays as shown above. This does not necessarily represent a
deliberate attempt at dilution...
This sample was received from a facility not accredited to AS/NZS4308.”1
[32] On receiving the drug test report, Mr Pitts gave evidence that he made enquiries as to
“the soonest time I could get test results back from them [Gemini Medical Centre] if I took
the test straight away. They told me that the soonest they could return results, even if I did
test that same day, was the following Monday because their lab did not process results over
the weekend.”2
[33] At 1:30 pm on Friday 8 February 2013, the Applicant contacted the Employer’s Safety
Advisor seeking an extension of the time to provide a clear test to Monday 11 February 2013.
Approximately, 30 minutes later, the Safety Advisor informed him that Mr Olyett was the
only person who could extend the timeline.
[34] Mr Pitts forwarded to Mr Olyett, by email, a photograph of the drug test report and
telephoned him. Mr Pitts explained the situation and sought an extension of time until
11 February 2013.
1 Exhibit A5
2 Exhibit A5
[2013] FWC 4501
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[35] Mr Pitts offered to take another test on Monday 11 February 2013 and asked for an
extension of time.
[36] Mr Olyett informed the Applicant that he would have to consult with the Employer’s
Human Resources Department and telephone him back.
[37] Mr Olyett telephoned Mr Pitts at approximately 5:00 pm and informed the Applicant
that a clear test result was required by the end of the day. The remainder of the telephone
conversation is in dispute.
[38] On Monday 11 February 2013, Mr Olyett contacted the Applicant at about 10:00 am
and advised him that the Employer had made a decision to terminate his employment as he
had failed to provide a clear drug test by the required time.
[39] The Employer confirmed its decision to terminate the Applicant’s employment by
letter dated 12 February 2013.
[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 methyl amphetamines 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.”3
[41] On 13 February 2013, Mr Heathcote contacted the Employer and requested the
Employer to review its decision and provide him with an opportunity to provide a clear drug
test.
[42] The Employer met with Mr Heathcote on 27 February 2013. The Employer advised
that it was not prepared to change its decision to terminate the Applicant’s employment.
[43] The two other employees (Employees #3 and #5) who were required to provide a clear
drug test by 8 February 2013, each did so. Each employee returned to work and was given a
first and final warning.
3 Exhibit A5 LP6
[2013] FWC 4501
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[44] The Applicant undertook a drug test on 14 March 2013. On that occasion, his
U-Creatinine was 28.8 mmol/L and there was no presence of illicit substances in his body. I
note that this test was nine (9) days after he filed his application for unfair dismissal.
[45] The Employer was provided with a copy of the test result on 29 April 2013 in
accordance with the procedural directions.
RELEVANT STATUTORY FRAMEWORK
[46] It is not in dispute that Mr Pitts is protected from unfair dismissal pursuant to s.382 of
the FW Act and that the application was made within the statutory timeframe in paragraph
394(2)(a) of the FW Act.
[47] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) …
(d) …
[48] The criteria for whether a dismissal was harsh, unjust or unreasonable can be found at
s.387 of the FW Act and is as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s
capacity or conduct (including its effect on the safety and welfare of other
employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to
the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether
the person had been warned about that unsatisfactory performance before the
dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to
impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the
procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.
[2013] FWC 4501
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DOCUMENTATION
[49] In the course of the arbitral hearing, a number of documents were referred to. For
convenience, I set them out as they relate to my consideration of the evidence and statutory
provisions.
2 March 2012 Expression of interest in employment with the Employer (EOI).
14 March 2012 Applicant’s offer and acceptance of employment letter (O&A
letter).
28 June 2011 AGC Industries Pty Ltd Alcoa Local Services and Associated
Projects Collective Agreement 2011 (Agreement).
16 March 2012 Employee Safety Induction Checklist (Safety Induction
Checklist).
Undated AGC Multi Discipline Services Contract Alcoa Wagerup
Induction Slides (Alcoa Wagerup induction slides).
November 2012 AusGroup Alcohol and Other Drugs Policy (AOD Policy).
APPLICANT’S SUBMISSION
[50] The Applicant’s submission, in summary, is that:
the actual reason for Mr Pitts’ dismissal is that he did not provide the Employer with a
clear drug test by 8 February 2013:
there is no allegation by the Employer that Mr Pitts was actually working whilst
impaired by drugs or alcohol while at work on 29 January 2013;
Mr Pitts submitted to a drug test on 7 February 2013 and the results were inconclusive
in that the sample was too dilute and unsuitable for analysis. Further, the result does
not necessarily represent a deliberate attempt at dilution;
the fact that the sample was too dilute for analysis cannot be attributed as a fault of the
Applicant;
imposing a strict timeline and then relying on a non-result to dismiss Mr Pitts can be
characterised as “capricious, spiteful or prejudiced”;
Mr Pitts was not provided with an opportunity to respond to the reason for his
dismissal and the factors it was intending to take into account in reaching that
decision;
the Employer failed to meet with Mr Pitts prior to dismissing him and therefore
denying him the opportunity to have a support person present;
[2013] FWC 4501
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Mr Pitts had not been warned about any unsatisfactory performance prior to his
dismissal;
the procedural failures of the Employer cannot be attributed to its size. It is a large
employer with dedicated human resources personnel;
the Employer was aware that Mr Pitts had made a workers’ compensation claim for a
workplace injury and had provided him with “light duties”. However, the Employer
appears to have given no consideration to the Applicant’s injury, his capacity to find
other employment as a scaffolder and the impact of dismissal on him; and
in conclusion, Mr Pitts was not afforded a “fair go”.
EMPLOYER’S SUBMISSION
[51] The Employer’s submission, in summary, is that:
the Applicant breached his contractual obligations to comply with the AOD Policy and
AOD Guidelines by having illicit substances in his body while at work;
the Applicant failed to provide a clear drug test within the required timeframe
demonstrating that the Applicant did not have illicit substances in his body;
the Applicant breached his contractual and statutory duty of care pursuant to s.20 of
the Occupational Safety and Health Act 1984 (OSH Act) to ensure his own safety at
work and to avoid adversely affecting the safety and health of others at work;
the Applicant was aware of the AOD Policy and AOD Guidelines. Further, Mr Pitts
was aware that a breach of the AOD Policy, AOD Guidelines and his safety
obligations may lead to termination of his employment;
the Applicant was notified on 31 January and 8 February 2013 that failure to provide a
clear drug test may lead to the termination of his employment. Mr Pitts was notified
verbally on 11 February 2013 of the reason for his dismissal;
the Applicant was given the opportunity to explain, and did so, why he was not able to
provide a clear test result on 8 February 2013;
the Applicant did not request, nor was he refused a support person in discussions
relating to the dismissal;
the dismissal was not related to the Applicant’s performance;
the size of the Employer’s organisation is not an issue in Mr Pitts’ application;
the Employer considered a range of factors prior to making the decision to terminate
the employment of the Applicant - Mr Pitts’ workers’ compensation claim was not one
of the factors considered; and
[2013] FWC 4501
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the Employer followed a lawful, reasonable and fair process in deciding to terminate
the Applicant’s employment.
CONSIDERATION OF STATUTORY FRAMEWORK
Was there a valid reason for the Applicant’s dismissal? - s.387(a)
[52] I have adopted the definition of a valid reason stated by North J in Selvachandran v
Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of
sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or
prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same
time the reasons must be valid in the context of the employee’s capacity or conduct or
based upon the operational requirements of the employer’s business. Further, in
considering whether a reason is valid, it must be remembered that the requirement
applies in the practical sphere of the relationship between an employer and an
employee where each has rights and privileges and duties and obligations conferred
and imposed on them. The provisions must ‘be applied in a practical, commonsense
way to ensure that the employer and employee are treated fairly’.”
[53] In cross examination, Mr Pitts gives evidence that “essentially I’ve been terminated
over the fact - over a bit of paperwork, not the initial result”4.
[54] In my view, the matter of Mr Pitts’ termination of employment cannot be reduced to
the narrow ground of a drug test result in which the sample was very dilute and unsuitable for
testing purposes.
[55] This issue in Mr Pitts’ termination of employment can be conveniently divided into
three parts. Firstly, the substantial matters leading up to and including the drug and alcohol
test on 29 January 2013 and its confirmation on 30 January 2013. Secondly, the period
between 1 February and 8 February 2013. Thirdly, the consequences for the Applicant not
providing a laboratory confirmed negative result for alcohol and drugs by 8 February 2013.
[56] I turn firstly to those matters leading up to the positive drug test on 29 January 2013.
[57] The Employer tendered a number of documents setting out that Mr Pitts was aware of
the Employer’s alcohol and other drugs policy.
[58] When seeking employment, Mr Pitts filled out an EOI in which he declared on
2 March 2012, that he understands and agrees with the terms of his employment which
includes:
“Part of the Project’s Fitness for Work policy includes a Drug and Alcohol Program to
help ensure that employees are not affected by drugs and alcohol whilst at work. Do
you agree to participate in this Program during your employment (including all aspects
4 Transcript PN475
[2013] FWC 4501
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of drug and alcohol screening and other possible medical testing, and to disclosure of
the test results by the test provider for use by the Company” (sic).
[59] Further:
“Do you agree to not be in the possession of, under the influence of, consume
intoxicating liquor or drugs on the Project”.
[60] And, finally:
“Comply with all Company and Project safety rules and procedures”.
[61] Mr Pitts affirmed positively to all the above questions.
[62] When offered employment on 14 March 2012 at the Wagerup Refinery, Mr Pitts
signed to acknowledge that he had read and understood his terms and conditions of his
employment. In a letter of nine (9) paragraphs, one paragraph specifically refers to the
matters in this application and reads:
“In addition, you are required to comply with all appropriate laws and legislation as
well as AGC policies, standards and procedures (including Code of Conduct),
Domestic Rules, Site Rules and Fitness for Work Policies which includes the
requirement to participate in random drug and alcohol testing. Non compliance with
these rules and policies may lead to termination of employment”.
[63] As part of the Safety Induction Checklist, Mr Pitts signed to say that “OHS policies”
and “Duty of Care” had been explained to him.
[64] Having considered the contents of the above EOI, contract of employment and the
Safety Induction Checklist, it would be inappropriate for the Commission to disagree with the
Employer’s proposition that Mr Pitts was aware that he had to present for work not under the
influence of drugs, he would be subject to drug testing and that non compliance with the
Employer’s policies may led to the termination of his employment.
[65] I now turn to the issue of Mr Pitts’ practical induction.
[66] It is a requirement for the Applicant to complete two inductions at the Wagerup
Refinery.
[67] The first induction is completed by Alcoa. The second induction is provided by the
Employer. The Employer’s induction is split into two parts. The first part is a 45 minute
power point presentation. After the presentation, Mr Pitts is required to sign the Safety
Induction Checklist which I referred to in paragraph [63] above. The presentation makes
particular reference at slide 42 to Health and Hygiene and that the Employer is responsible for
personnel under their control and that employees “do not at any time during the performance
of work activities partake or be under the influence of any alcoholic liquor, drugs or other
intoxicating substances while on duty”.5
5 Exhibit R8
[2013] FWC 4501
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[68] Mr Pitts concedes in his witness statement that he did participate in the “Alcoa
induction which briefly provided information about not being under the influence of drugs or
alcohol while being onsite. I was also told that Alcoa’s drug and alcohol policies applied to
me when on site”6.
[69] Mr Pitts continues his evidence, “I admit I am generally aware that testing positive for
drugs or alcohol at work is a serious matter and that the respondent does treat it seriously...”7.
[70] With respect to the power point presentation, Mr Pitts’ written witness statement
states, “I was not provided with an induction presentation or any information regarding the
Respondent’s policies”8. However, in cross examination, concedes “they were flicked
through but essentially they weren’t explained entirely in context with the - you now, it was a
quick: ‘here’s this one, here’s that one, here’s that one”.9
[71] In view of the fact that there are over 60 power point slides in 45 minutes, I am
inclined to agree with Mr Pitts that it would have appeared a rapid presentation, but I have my
doubts that it was “...20 minutes, a few slides, a quick gasbag...then started work”10 as he
described in cross examination.
[72] The second part of the Employer’s employee induction consisted of four separate
packages requiring three (3) to four (4) hours to complete. Mr Pitts gives evidence that he
completed one package and I have no direct evidence to the contrary.
[73] Mr Pitts gives written and oral evidence that he was not provided with nor did he read
the Employer AOD Policy. Notwithstanding the Employer’s evidence that it was in the “crib
huts”11, training room12 and Main Office13. Further, fitness for work may have been
mentioned at a toolbox meeting but he has no recollection. Mr Pitts’ evidence was that,
“you’re there as a scaffolder. You’re meant to be out onsite not in there reading up on
information”.14
[74] Notwithstanding this evidence, Mr Pitts, in cross examination, conceded that he was
familiar with the term “fitness for work” and that as an employee of a sister company of the
Employer, it had a “fitness for work” policy. Further, that on signing his contract of
employment he was aware that the Employer had fitness for work policies.
[75] While Mr Pitts claims ignorance of the content of various policies, guidelines and
plans, I am satisfied that, irrespective of the paperwork associated with pre and post
commencement of employment, from a practical perspective, the Applicant was aware that
the Employer treated attending for work under the influence of drugs and/or alcohol seriously.
Further, that attending work under the influence of drugs/alcohol poses a health and safety
6 Exhibit A5
7 Exhibit A5
8 Exhibit A5
9 Transcript PN283
10 Transcript PN282
11 Transcript PN77
12 Transcript PN78
13 Transcript PN311
14 Transcript PN79
[2013] FWC 4501
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risk to both himself and other employees. Further, I am satisfied that Mr Pitts was aware that
non compliance with fitness for work obligations would lead to disciplinary action. Further,
that the ultimate sanction was dismissal, although Mr Pitts did not consider this a possibility
for a single instance of testing positive for drugs or alcohol at work.
[76] With respect to attending work under the influence of alcohol, Mr Pitts gave the
following evidence:
“What do you mean when you say “and the respondent treats it seriously”? How did
you come to that view?---Well, treats it seriously as in – I consider it more if you’re
going to work under the influence of it. As far as it being in your system I’ve never
agreed with that but I’ve never been under the influence while going to work
beforehand or completing my daily tasks.
Mr Pitts, how do you know that you’re not under the influence?---Well, I’m right in
the head. I’m making good decisions. I can drive to work. I can - - -
But you’re aware that taking drugs affects your ability to - - -?---Initially, but you
know, as you said it was on a Saturday and I had the Sunday and Monday off so that’s
two days to recover. I’m right by the time I went to work on Tuesday. That’s why I
signed the form to say I was available and well not under the influence and ready to go
to work.
Do you think it’s fine to be able to take illicit substances on the weekend and then go
to work during the week?---No, I don’t think it’s fine. As I say, it’s not a decision I’d
usually make but unfortunately those decisions happened. I don’t deny or I don’t
make excuses. It is what it is.
But you do agree that when you consumed the substances you went to work, that if
you were caught you could potentially lose your job?---No, I was always aware that –
well, I thought it was always a three strike policy at Alcoa Wagerup like a lot of other
companies had done previously.”15
[77] While Mr Pitts has his own definition of when he is “under the influence” - “being
right in the head”, “making good decisions” and being able to drive to work, it is not the only
and definitive definition. I should point out that section 64AB of the Road Traffic Act 1974
(RTA) deals with driving while impaired by drugs or with the presence of a prescribed illicit
drug in oral fluid or blood. The section considers that, in the absence of proof to the contrary,
if it is proved that certain substances are in the driver’s system within four (4) hours after the
time of driving, the driver can be convicted of an offence associated with not having proper
control of a motor vehicle. I acknowledge that the testing regime under the RTA is different
to that applied by the Employer.
[78] Mr Pitts gave evidence that this was not the first time he had consumed Cannabis16.
He described himself as “just one of those blokes that just doesn’t recall what happens during
that night. I can lose six, seven hours during that night...”17
15 Transcript PN396 to PN400
16 Transcript PN402
17 Transcript PN405
[2013] FWC 4501
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[79] I now turn to events after he had the site drug test.
[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”18. Clearly, there appears to be a gap between the Employer’s
instructions and Mr Pitts’ actions.
[81] Notwithstanding Mr Olyett’s attempt to contact the Applicant several times on
30 January 2013, Mr Pitts gave evidence that he only became aware of these calls in the
evening. Mr Pitts did not return Mr Olyett’s call because “it was too late”19.
[82] Mr Olyett gave evidence that he had contacted the other two employees and advised
them that they had until 1 February 2013 to provide a clear drug and alcohol test. This
decision of the Employer was “made on the basis that we wanted to give the employees a
chance to remain employed”20.
[83] Mr Pitts knew that Mr Olyett had attempted to contact him, however, telephoned
Mr Heathcote to “get some advice about my situation”21.
[84] Mr Heathcote’s evidence of his discussion with Mr Pitts was simple, sound and
straightforward, “...provide a clear test result and to cooperate with the Respondent over
the matter”22.
[85] Mr Pitts telephoned Mr Olyett later that day and was advised by Mr Olyett that he had
until 3:30 pm on Friday 1 February 2013 to provide a clear drug and alcohol test or there
would be “dire consequences”. Mr Olyett’s evidence was similar except that he adds that
Mr Pitts was advised that if he did not return a clear test, “his employment may be
terminated”23. Mr Olyett also gave uncontested evidence that he asked Mr Pitts to keep his
mobile telephone nearby because of previous difficulties in contacting him.
[86] Mr Pitts gave evidence that on the same day, 31 January 2013, he had missed some
telephone calls made by Mr Olyett between 4:30 pm and 7:30 pm. Mr Pitts’ evidence was
that he did not immediately return the calls because, “I had been told by some of the other
employees that had been stood down that he was trying to call me [to say] that another week
had been given to provide a clean sample thanks to negotiations from the AMWU”24.
[87] On the following day, Mr Olyett informed the Applicant that he had until Friday
8 February 2013 to provide a “clean sample from a laboratory”25.
18 Exhibit A5
19 Exhibit A5
20 Exhibit R8
21 Exhibit A5
22 Exhibit A8
23 Exhibit A5
24 Exhibit A5
25 Exhibit A5
[2013] FWC 4501
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[88] I am satisfied from the evidence that Mr Pitts: had been given good advice by the
CFMEU; understood that he had to provide a “clean sample” by 8 February 2013; was in
contact with other employees who were stood down and notwithstanding the Employer’s
request for him to remain contactable, determined for himself when he would and would not
take calls from the Site Manager. Further, in relation to whether Mr Olyett advised him that a
failure to provide a clean drug test result may lead to termination, I prefer the evidence of
Mr Olyett.
[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”26. Further, this would enable Mr Pitts, “to pick up my result on Friday
8 February 2013 between 1:30 pm and 2:00 pm”27.
[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
26 Exhibit A5
27 Exhibit A5
[2013] FWC 4501
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fluid in the past before giving previous urine samples and had never had a result come back as
too dilute”28.
[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.
[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.
[102] Briefly, I want to refer to events after Mr Pitts’ dismissal.
[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
deadline29. Mr Heathcote’s oral evidence was that he advised Mr Pitts to retake the test as
quickly as possible30. In Mr Heathcote’s words, “I just advised him what I best thought was
the best outcome for him to do”31.
[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.
[105] It is clear that the Employer considered Mr Pitts positive drug test on 29 January 2013
a serious breach of his employment obligation to present for work in a fit and proper manner.
It was the Applicant’s failure to provide a clear result by 8 February 2013 that led to his
termination of employment.
[106] In coming to a conclusion to terminate his employment, Mr Olyett gave evidence that
the Employer considered the fact that Mr Pitts works in an operational refinery, general
performance, length of employment (11 months), fairness to the other two employees and lack
of remorse.
28 Exhibit A5
29 Exhibit A8
30 Transcript PN574
31 Transcript PN575
[2013] FWC 4501
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[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.
[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.
[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.
Notification of the reason for termination of employment - s.387(b)
[111] The Applicant was notified of the reason for his termination of employment verbally
on 11 February 2013 and this was confirmed, in writing, on 12 February 2013. I am satisfied
that Mr Pitts understood the reasons for termination of his employment.
Opportunity to respond - s.387(c)
[112] The circumstances of this application are somewhat unusual.
[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. Looked at differently, the Applicant repudiated his contract of employment
because of his inability to demonstrate to the Employer that he was able to present for work
not under the influence of alcohol and drugs by 8 February 2013. Mr Pitts was given the
opportunity to respond and failed to do so.
Support person - s.387(d)
[115] The Employer does not deny that Mr Pitts did not have a support person present
during discussions However, the Employer submits that a support person was neither
requested by Mr Pitts nor refused by the Employer.
[2013] FWC 4501
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[116] It is notable that after returning a positive drug test, the Applicant was in contact with
the CFMEU before taking a telephone call from the Employer. Further, Mr Pitts spoke to his
CFMEU organiser after he obtained the results which were too dilute for analysis.
[117] I observe that this factor may only be relevant when an employee asks to have a
support person present and the employer unreasonably refuses (Explanatory Memorandum to
the Fair Work Bill 2008, para 1542).
Unsatisfactory performance - s.387(e)
[118] The Applicant’s dismissal was unrelated to his performance. However, it was a factor
in the Employer’s consideration on reaching the decision to terminate his employment. The
issue was not given a great deal of force in evidence by either party which, I suspect, reflects
the minor role, if any, it played in the Applicant’s dismissal.
Size of the enterprise - s.387(f); and
Human resources - s.387(g)
[119] The Employer employs approximately 1,250 employees and has a specialist Human
Resources department.
[120] While I do not consider written communication would have changed the outcome of
what happened in the events leading to Mr Pitts’ dismissal, I am of the view that it is
preferable to reduce to writing an employer’s expectation after an employee gives a positive
alcohol and drug test.
Other matters - s.387(h)
[121] While the principal reasons for Mr Pitts’ dismissal have been set out above, there is a
set of facts which I have considered in the overall consideration of Mr Pitts’ application.
Facts that were not disputed.
[122] First, the Employer dismissed Employer #4 on returning a positive alcohol and drug
test on the basis he had already received a final written warning.
[123] Secondly, that the Employer treated Employees #3 and #5 in the same manner as
Mr Pitts. There is no suggestion that the Employer would have acted any differently towards
Mr Pitts if he had complied with the requirement to provide a clear test result by 8 February
2013.
[124] The Employer provided Mr Pitts with a second chance. Mr Pitts had the benefit and
guidance of union intervention. The Applicant was given the same chance as the two other
offending employees. Mr Pitts chose a course of action which failed to satisfy his employer.
The Employer, as it should do, took a firm, but equitable, position regarding employees who
provide a positive result to alcohol and drug testing while at work.
[2013] FWC 4501
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CONCLUSION
[125] In conclusion, for the reasons set out above, I am satisfied that Mr Pitts’ dismissal
from his employment was not unfair pursuant to s.387 of the FW Act. Accordingly, the
application must be dismissed and an order to this effect is issued conjointly with this
Decision and Reasons for Decision.
COMMISSIONER
Appearances:
Mr M Swinbourn of the CFMEU for the Applicant.
Ms E Buchanan on behalf of the Respondent.
Hearing details:
2013:
Perth,
28 June.
Printed by authority of the Commonwealth Government Printer
Price code C, PR538697
