1
Fair Work Act 2009
s.394—Unfair dismissal
Sharp
v
BCS Infrastructure Support Pty Limited
(U2014/634)
VICE PRESIDENT CATANZARITI SYDNEY, 15 OCTOBER 2014
Application for relief from unfair dismissal - employee dismissed for returning a positive drug
test result - no impairment alleged - breach of employer’s policies - whether harsh, unjust or
unfair - application dismissed.
[1] On 3 March 2014, an application pursuant to s.394 of the Fair Work Act 2009 (the
Act) was lodged by Mr Owen Sharp (the Applicant).
[2] The matter was subject to an unsuccessful conciliation on 10 April 2014, and
consequently was listed for hearing before me on 4 and 5 August 2014. At the hearing, the
Applicant was represented by Ms L Saunders from the Australian Manufacturing Workers’
Union (AMWU) and BCS Infrastructure Support Pty Ltd (the Respondent) was represented
by Mr P Rozen of Counsel. Mr Rozen’s appearance was not objected to by the Applicant, and
having formed the view that the matter would proceed more efficiently if the Respondent was
represented by a lawyer, permission was granted in accordance with s.596 of the Act.
[3] The Applicant filed written submissions and materials in the Fair Work Commission
(the Commission) on 5 June 2014. The Respondent filed written submissions and materials in
the Commission on 18 June 2014. Reply submissions and materials were filed by the
Applicant on 25 July 2014.
[4] The Applicant gave evidence on his own behalf and called no further witnesses.
[5] The following witnesses gave evidence on behalf of the Respondent:
Mr Neal Hiland, Operations and Maintenance Manager, BCS Infrastructure Support
Pty Ltd
Ms Christine Canfield, Group Human Resources/Occupational Health & Safety
Manager, BCS Infrastructure Support Pty Ltd
Mr Jeffrey Barden, National Operations Manager, BCS Infrastructure Support Pty
Ltd
Dr Angus Forbes, Medical Review Officer, Sonic Healthplus
Dr Somnuk Phonesouk, General Medical Practitioner, Sydney Airport Medical
Centre
[2014] FWC 7310 [Note: An appeal pursuant to s.604 (C2014/7029) was
lodged against this decision - refer to Full Bench decision dated
27 February 2015 [[2015] FWCFB 1033] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
https://www.fwc.gov.au/documents/decisionssigned/html/2015FWCFB1033.htm
[2014] FWC 7310
2
[6] I was greatly assisted by the provision of an agreed statement of facts by the parties.
Both parties should be commended for their contribution to this statement as it allowed the
hearing to proceed much more efficiently, having regard to the limited number of factual
issues in dispute.
Background
[7] The Applicant was employed by the Respondent in November 2006. In April 2011, he
was promoted to the position of team leader, and he remained in this position until his
termination on 21 February 2014. The Applicant’s place of work was Sydney Airport, which
is operated by Sydney Airport Corporation Limited (SACL). The work performed by the
Applicant was the result of a contract between the Respondent and Qantas Airways Limited
(Qantas) for the maintenance and servicing of equipment including carousels and aerobridges.
The work performed by the Applicant was considered to constitute “Safety Sensitive Aviation
Activities” (SSAA) for the purposes of the Civil Aviation Safety Regulations 1998.
[8] On 31 January 2014, SACL wrote to the Respondent requiring that all existing
employees and sub-contractors of the Respondent who perform SSAA who had not yet been
subjected to drug and alcohol testing must be tested no later than 21 February 2014.
[9] On Monday 10 February 2014, the Applicant reported for work at 6:00 AM and was
informed at 10:00 AM by his supervisor, Mr Neal Hiland, that he was required to undertake a
drug and alcohol test. The Applicant immediately informed Mr Hiland that he had taken
marijuana the Saturday prior. While the exact terms of the conversation that ensued are
disputed, it is common ground that Mr Hiland told the Applicant that he was required to
undertake the test.
[10] At 3:10 PM on 10 February 2014, the Applicant provided a urine sample at the Sydney
Airport Medical Centre. The test was overseen by Dr Phonesouk. The Applicant returned to
work the remainder of his shift and also worked his rostered shift on the following day, 11
February 2014. Prior to the commencement of the Applicant’s shift on 12 February 2014, Mr
Hiland was informed that the Applicant’s test had returned a non-negative result for drugs. Mr
Hiland contacted the Applicant and informed him that he was stood down from duties
pending receipt of a report from the Medical Review Officer.
[11] On 13 February 2014, Mr Hiland received a copy of the results of the confirmatory
tests which showed that the Applicant had tested positive for cannabinoids at a level of
112µg/L. This result exceeded the permitted threshold of 15µg/L. The Applicant’s test results
were then sent to Dr Angus Forbes, a registered Medical Review Officer. Dr Forbes reviewed
the documents and confirmed that they indicated that the Applicant had tested positive for
THC (the primary psychoactive ingredient in cannabis). Dr Forbes provided a report to the
Respondent on 17 February 2014 finding that the Applicant had tested positive for
cannabinoids and that he should be managed in accordance with the Respondent’s Drug and
Alcohol Management Plan (DAMP).
[12] On 17 February 2014, the Applicant was sent a “show cause” letter. On 19 February
2014, the Applicant met with Mr Hiland and Ms Canfield of the Respondent. Geoff Wallace,
an AMWU Organiser, attended the meeting as the Applicant’s support person. The Applicant
was provided with a copy of Dr Forbe’s report but was not provided with a copy of the initial
[2014] FWC 7310
3
drug test results or the confirmatory drug test results. The Applicant was not advised of the
level of THC detected in his sample. At this meeting the Applicant requested an opportunity
to respond in writing, and the Respondent agreed. A further meeting was arranged for 21
February 2014.
[13] On 20 February 2014 the Applicant provided the Respondent with a written response.
In his written response, the Applicant claimed that he was not a regular user of cannabis (or
any other illegal substance) and that he had smoked a single joint that he had shared with
close friends on the Saturday prior to his drug and alcohol test. The Applicant acknowledged
that he had made “a serious mistake” but claimed that he did not feel impaired when he
attended work and that he was happy to submit to a program of ongoing or random testing if
he were given a second chance. The Applicant asked the Respondent to take into account his
length of service at the company, his work record, his willingness to transfer to another
worksite if necessary, his cooperation with the investigation process and his status as the
primary breadwinner in his family.
[14] On 21 February 2014, at a further meeting between the Respondent and the Applicant,
the Applicant’s employment was terminated by a letter of that date. The Applicant was paid
out his accrued annual leave, his long service leave and four weeks’ pay in lieu of notice. The
Applicant was not provided with a copy of the initial drug test results and the confirmatory
drug test results until 10 April 2014.
The Applicant’s case
[15] The Applicant concedes that he has engaged in misconduct. However, Ms Saunders
submitted on his behalf that his actions did not amount to serious misconduct and that
termination was not justified in all of the circumstances of the case. Ms Saunders submitted
that there were a number of mitigating factors that should be taken into account when
considering the Applicant’s conduct, including:
The Applicant did not, and has never, knowingly used alcohol or illicit substances at
work;
There is no suggestion that the Applicant was impaired by the cannabis in his system
while at work, or that the Respondent suspected any impairment;
There is no suggestion or evidence to suggest that the Applicant is a habitual drug
user;
The test results themselves do not indicate that the Applicant was impaired or
remained affected by cannabis;
The Applicant has never previously tested non-negative for any prohibited substance
during his employment with the Respondent;
The Applicant informed his supervisor that he could test positive prior to taking the
test;
The Applicant complied with the requirement to provide a sample;
The Applicant has been honest and contrite and has never sought to deny or conceal
his conduct;
Other employees of the Respondent who had returned non-negative samples were
not terminated;
The Respondent’s policy did not advise employees that termination would result
from returning a non-negative result, and in fact prefers alternative sanctions; and
[2014] FWC 7310
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The Respondent did not comply with its own DAMP in the manner in which the
testing was carried out.
[16] The Applicant conceded that the returning a non-negative test result for a prohibited
substance can form a valid reason for termination, but that of itself it was not automatically a
valid reason, and that the surrounding circumstances of this case do not justify termination.
Thus, the Applicant’s primary submission was that there was no valid reason for dismissal.
[17] Ms Saunders submitted for the Applicant that the Respondent’s DAMP did not require
termination. It was not controversial between the parties that the Respondent’s DAMP did not
mandate termination upon return of a non-negative test result. Nor was it controversial that
the Respondent’s DAMP did not include a random testing regime. While the Applicant did
not contend that the Respondent was not entitled to test the Applicant, it submitted that the
policy framework was inadequate, and that in those circumstances termination was not
justified.
[18] Ms Saunders also submitted that, despite what the Respondent’s assertion to the
contrary in its letter of termination, the non-negative test result would not have had an impact
on the Respondent’s ability to obtain and hold an Airport Security Identification Card (ASIC)
which is a precondition of employment.
[19] Ms Saunders submitted that there was no reliable evidence to support the
Respondent’s claim that the Applicant’s non-negative test result would affect the
Respondent’s reputation in any significant way. Ms Saunders submitted that the Respondent
was not obligated to share the Applicant’s test results with either Qantas or SACL, and
therefore if there was damage to the Respondent’s reputation it was due to the Respondent’s
choice to share the test results.
[20] Ms Saunders submitted that, in accordance with the definition in reg 1.07 of the Fair
Work Regulations 2009, serious misconduct could only be made out where there was a
serious and likely risk to health and safety or to the reputation, viability or profitability of the
Respondent’s business. As there is no evidence that the Applicant was impaired, it was
submitted that there was no serious and likely risk to health and safety, and any reputational
damage was due to the Respondent’s actions in unnecessarily reporting the Applicant’s test
results.
[21] It was also submitted that the Respondent was not entitled to take into account the
Applicant’s out of hours conduct with respect to the taking of illegal drugs. Ms Saunders
submitted that the Respondent was “in reality” taking into account the Applicant’s out of
hours conduct, and that it was not entitled to do so in the circumstances.
[22] Ms Saunders also submitted that, even if there were a valid reason for dismissal, the
dismissal was still harsh, unjust or unreasonable. This submission was made on the basis that
there were procedural shortcomings in the way the Respondent conducted the termination. Ms
Saunders submitted that the evidence showed that the Respondent had not put to the
Applicant all of the reasons on which his termination was based, nor had it provided the
Applicant with all of the relevant information, such as the reading of the level of cannabinoids
found in his system.
[2014] FWC 7310
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[23] Finally, it was submitted that the dismissal was harsh based, inter alia, on the
Applicant’s 10 years of service with the company, during which time no warnings about work
performance or conduct were given to the Applicant.
The Respondent’s Case
[24] Mr Rozen submitted on behalf of the Respondent that its reasons for terminating the
Applicant’s employment were sound, defensible and well founded. Mr Rozen submitted that
the breach of a company policy may provide a valid reason for termination and that in
circumstances where the policy is both lawful and reasonable and it had been made clear to
employees that a breach is likely to result in termination, an employee who knowingly
breaches the policy will have difficulty making out an argument that there is no valid reason
for termination.1
[25] It was submitted that the Applicant conceded in his Outline of Submissions that a
breach of a company policy constitutes a valid reason for dismissal and that the Applicant was
aware of the Respondent’s (and the Respondent’s clients, namely Qantas and SACL) policies
in relation to drugs and alcohol, and the restrictions contained in these policies on attending
work with drugs in his system. Mr Rozen submitted that the Applicant’s test result was almost
eight times the threshold specified in the relevant policies.
[26] It was submitted that the Respondent’s DAMP provides that an employee who returns
a positive test result will be subject to disciplinary action in accordance with the Respondent’s
Disciplinary Policy. The Respondent’s Disciplinary Policy provided, it was submitted, that
consumption or use of drugs or alcohol in breach of the Respondent’s or a clients’ DAMP is
an act of serious misconduct.
[27] Mr Rozen submitted that the Applicant was not dismissed on the basis that he was
impaired or may have been impaired while at work, but because he returned a positive test
result that was a breach of its (and its clients’) DAMPs and the Respondent’s Code of
Conduct. It was submitted that dismissal was a reasonable response in the circumstances
pursuant to the Respondent’s Disciplinary Policy.
[28] Mr Rozen submitted that there were a number of factors that contributed to the
decision to terminate the Applicant, including:
The level of cannabinoids revealed by the test was so high that it represented a prima
facie serious threat to the safety of workers;
The Applicant’s conduct compromised the Respondent’s reputation in circumstances
where the Respondent already held serious concerns about its relationship with
Qantas;
Representations made by a Qantas representative to the Respondent that Qantas
would not be comfortable with an employee who had tested positive for drugs
remaining on site;
The high-risk nature of the Applicant’s workplace;
The Applicant’s role as a team-leader responsible for other employees; and
The risk of establishing a precedent with respect to testing positive for illegal
substances if the Applicant was allowed to return to the workforce.
[2014] FWC 7310
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[29] Mr Rozen submitted that the Applicant was afforded procedural fairness, as he was
notified of the reason for his dismissal and was given ample opportunity to respond. Mr
Rozen submitted that the Respondent acted equitably in that two other employees who also
tested positive for cannabis were also dismissed.
Consideration
[30] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the
circumstances set out in s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code;
and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code:
see section 388.”
[31] There was no argument that the Applicant had not been dismissed, and neither party
sought to rely on ss.385(c)-(d). The dispute was confined, therefore, to whether or not the
dismissal was harsh, unjust or unreasonable. The criteria that must be considered when
determining whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of
the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or
unreasonable, the 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
[2014] FWC 7310
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(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 the FWC considers relevant.”
[32] The ambit of the conduct that may fall within the phrase ‘harsh, unjust or
unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185
CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not
harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the
concepts will overlap. Thus, the one termination of employment may be unjust because
the employee was not guilty of the misconduct on which the employer acted, may be
unreasonable because it was decided upon inferences which could not reasonably have
been drawn from the material before the employer, and may be harsh in its
consequences for the personal and economic situation of the employee or because it is
disproportionate to the gravity of the misconduct in respect of which the employer
acted.”
Was there a valid reason for dismissal relating to the Applicant’s capacity or conduct?
[33] The Respondent must have a valid reason for the dismissal of the Applicant, although
it need not be the reason given to the Applicant at the time of the dismissal.2 The reasons
should be “sound, defensible and well founded”3 and should not be “capricious, fanciful,
spiteful or prejudiced.”4 There is a distinction between capacity and conduct.5 In this matter, it
was the conduct of the employee, not his capacity, that formed the basis of his termination.
[34] It is not the role of the Commission to “stand in the shoes of the employer and
determine whether or not the decision made by the employer was a decision that would be
made by the court.”6 However, the Commission must consider the entire factual matrix in
determining whether an employee’s termination is for a valid reason.7
[35] I do not accept the Applicant’s submission that the Respondent took into account the
Applicant’s out of hours conduct in an impermissible manner. I am satisfied on the basis of
the evidence before me that the reason for Applicant’s dismissal was that he returned a
confirmed positive test result whilst at work. While the Respondent had been informed by the
Applicant that he had consumed cannabis on the weekend prior to the drug test, it was not this
information that formed the basis of his termination. This is established by the evidence of Ms
Canfield, Mr Hiland and the termination letter that was sent to the Applicant.
[36] The Applicant submitted that the Respondent was in error in asserting in its
termination letter that the return of a positive test result would likely affect the Applicant’s
[2014] FWC 7310
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ability to obtain an ASIC. Ms Canfield’s evidence in cross-examination revealed that there
was scant basis for this assertion.8 However, even were the Respondent mistaken about the
impact of the positive test result on the Applicant’s ability to obtain an ASIC, the Applicant’s
positive test result provides a valid reason for dismissal in the circumstances.
[37] The Applicant also submitted that there was no evidence that the Applicant was
suffering from impairment due to the consumption of drugs or alcohol, and no evidence that
he had consumed drugs or alcohol on site. It was further submitted that there was no
suggestion that the Applicant was a habitual drug user, and that the Applicant had never
previously returned a non-negative result on a drug test. These are not issues that arise on the
facts of this matter. The Respondent did not allege that the Applicant was suffering from
impairment or that he was a habitual drug user. These issues have no relevance in considering
whether or not there was a valid reason to terminate the Applicant in circumstances where
such reasons had no bearing on the Applicant’s termination. To raise them at this stage merely
serves to distract from the true issues in dispute.
[38] I find that there was a valid reason to terminate the Applicant relating to his conduct.
While the mitigating circumstances submitted by the Applicant may go towards other factors
to which I will now turn, they are not sufficient to negate the validity of the reason for the
Applicant’s termination.
Was the Applicant notified of the reason for dismissal?
[39] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made,9 in explicit terms10 and in plain and clear
terms.11 In Crozier v Palazzo Corporation Pty Ltd12 a Full Bench of the Australian Industrial
Relations Commission dealing with similar provision of the Workplace Relations Act 1996
stated the following:
“As a matter of logic procedural fairness would require that an employee be notified of
a valid reason for their termination before any decision is taken to terminate their
employment in order to provide them with an opportunity to respond to the reason
identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it
was sufficient to notify employees and give them an opportunity to respond after a
decision had been taken to terminate their employment. Much like shutting the stable
door after the horse has bolted.”13
[40] I am satisfied that the Applicant was notified of the reason for his dismissal. The
Applicant gave evidence that he was informed of his non-negative test result on Wednesday
12 February 2014, and the Applicant was informed during the course of this conversation that
he would be subject to a formal disciplinary process. On 17 February 2014 the Applicant was
given a ‘show cause’ letter that clearly identified that the Respondent took was of the view
that the matter was serious and that any disciplinary action taken could include termination of
his employment.
[41] The Applicant contended that he was not informed of the level of THC found in his
sample until after his termination. There was some conflicting evidence in this respect
between the evidence of the Applicant and Dr Forbes. The Applicant contended in his written
response to the Respondent of 20 February 201414 that he had asked Dr Forbes what range his
[2014] FWC 7310
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result fell in but was not told. Dr Forbes gave the following evidence in cross examination in
relation to this issue:
“Is there a reason why you didn't advise him of the level?---No, I don't routinely advise
people of the exact numbers. It's not particularly helpful in my experience and if they
ask I'd be more than happy to tell them but it's extraneous information for the
consultation usually.
All right. You've anticipated my next question which is did Mr Sharp ask you to tell
him the level?---It's certainly not my recollection.
Okay. Based on your practice if he had asked you is there any reason why you
wouldn't have told him?---None at all.”15
[42] In contrast, the Applicant’s oral evidence in relation to this issue was inconsistent and
contradictory.16 I prefer Dr Forbes evidence in relation to this issue and find that, on the
balance of probabilities, that the Applicant did not ask Dr Forbes about the level of THC
found in his urine.
[43] It is, however, uncontroversial that the Respondent did not provide the Applicant with
a copy of his test results at the disciplinary meeting on 19 February 2014 despite being
requested to do so by the Applicant’s union representative Mr Geoff Wallace. However, given
that the Applicant had already admitted to the use of cannabis and had been made aware that
his test results had returned positive in breach of the Respondent’s DAMP, the exact level of
THC in the Applicant’s sample was not a material concern.
[44] I am satisfied that the Applicant was appropriately notified of the reason for his
dismissal.
Was the Applicant given an opportunity to respond?
[45] I am satisfied that the Applicant was given an appropriate opportunity to respond, in
person at the meeting of 19 February 2014 and subsequently in writing.
Was the Applicant unreasonably refused a support person?
[46] The Applicant had the benefit of Mr Geoff Wallace as his support person at the
meeting of 19 February 2014. There is no suggestion that he was unreasonably refused a
support person.
Warnings regarding unsatisfactory performance
[47] The Respondent was not terminated on the basis of unsatisfactory performance.
Nevertheless, the Applicant submitted that the Applicant’s performance was taken into
account in making the decision to terminate his employment. The Applicant referred to the
statement of Mr Hilland in which Mr Hilland gave evidence that in discussions about
alternative outcomes to terminating the Applicant he said that “there was nothing exceptional
about Owen’s recent work performance that would justify moving him to another site or
retaining him in the Sydney Airport role.”17
[2014] FWC 7310
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[48] I do not accept that an inference can be drawn from this evidence that the Applicant’s
work performance was a factor in the Respondent’s decision to terminate his employment, or
that there was any need for the Respondent to provide the Applicant with a warning regarding
unsatisfactory performance. Mr Hilland was expressing the view that there was nothing
exceptional about the Applicant’s work performance. This is significantly different from
having concerns about unsatisfactory work performance.
Size of employer’s enterprise and human resource expertise
[49] The Respondent is a large organisation with over 200 employees. I find that the
Respondent’s size was not a relevant factor in this matter. The Respondent has dedicated
human resources expertise and a relatively sophisticated set of procedures that applied to the
Applicant’s dismissal.
Other relevant matters
Serious misconduct
[50] The Applicant submitted that the Respondent’s DAMP did not require the Respondent
to terminate the Applicant and that the policy contemplates suspension and a return to work
following drug and alcohol counselling. While the DAMP does not require the Respondent to
terminate an employee who has returned a confirmed positive test result, it does allow the
Respondent to do so. Paragraph 11 of the DAMP provides that “BCS will take disciplinary
action against an SSAA employee who fails to comply with their responsibilities an
obligations under the DAMP, including but not limited to... returning a confirmatory test
result. BCS’s Disciplinary Policy and Guidelines set out the disciplinary options and
processes for breaches of company policy and procedures, including the DAMP.”18
[51] The Respondent’s Code of Conduct sets out a number of examples of misconduct and
serious misconduct.19 No reference is found in these examples to returning a confirmatory test
result. Some of the examples of serious misconduct relate to the use of illicit drugs whilst on
company premises and being at work whilst under the influence of drugs and/or alcohol.
These are not allegations that formed the basis of the Applicant’s dismissal.
[52] The Respondent submitted that the Applicant’s conduct constituted serious
misconduct justifying immediate dismissal. The Applicant submitted that his misconduct did
not fall within any of the examples outlined in the Code of Conduct nor the meaning of
“serious misconduct” as set out in reg 1.07 of the Fair Work Regulations 2009.
[53] Regulation 1.07 of the Fair Work Regulations 2009 provides as follows:
“1.07 Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious
misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the
following:
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(a) wilful or deliberate behaviour by an employee that is inconsistent with the
continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:
(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer’s business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the
following:
(a) the employee, in the course of the employee’s employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that
is consistent with the employee’s contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the
circumstances, the conduct engaged in by the employee was not conduct that made
employment in the period of notice unreasonable.
(5) For paragraph (3)(b), an employee is taken to be intoxicated if the employee’s
faculties are, by reason of the employee being under the influence of intoxicating
liquor or a drug (except a drug administered by, or taken in accordance with the
directions of, a person lawfully authorised to administer the drug), so impaired that the
employee is unfit to be entrusted with the employee’s duties or with any duty that the
employee may be called upon to perform.”
[54] It is important to note that this is an inclusive definition, not an exhaustive one. It
explicitly maintains the ‘ordinary meaning’ of the term. Judge Lucev of the Federal Circuit
Court summarised this meaning as follows:
“To define “serious misconduct” by reference to its “ordinary meaning” as is done in
reg.1.07(1) of Div.2 of Part 1-2 of Ch.1 of the FW Regulations is not of particular
assistance in determining whether or not the conduct for which the employee has been
terminated is serious misconduct disentitling an employee to the minimum period of
notice prescribed under the NES. That is because, both historically and in more
modern times, courts have been wary of defining the extent of “misconduct” which
justifies dismissal, and where they have attempted the task have made it clear that the
misconduct must be sufficiently “serious” as to warrant non-continuation of the
contract between employer and employee. Thus, the “ordinary meaning” definition of
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“serious misconduct” adds little, if anything, to the content of the meaning of “serious
misconduct”.
In Clouston & Co Limited v Corry it was observed that there “is no fixed rule of law
defining the degree of misconduct which would justify dismissal”.
In Laws v London Chronicle (Indicator Newspapers) Ltd it was observed that:
“… if summary dismissal is claimed to be justifiable, the question must be
whether the conduct complained of is such as to show the servant to have
disregarded the essential conditions of the contract of service.
… one act of disobedience or misconduct can justify dismissal only if it is of a
nature which goes to show (in effect) that the servant is repudiating the
contract, or one of its essential conditions; and for that reason, therefore, I think
that one finds in the passages which I have read that the disobedience must at
least have the quality that it is “wilful”: it does (in other words) connote a
deliberate flouting of the essential contractual conditions.”
In North v Television Corporation Ltd the Australian Industrial Court was called upon
to consider the word “misconduct” as used in an industrial award covering journalists.
In the joint judgment in North it was observed that:
“It is of assistance to consider the expression “misconduct” by reference to
subject matter to which it is related and the context in which it appears. The
subject matter is the termination by one party against the will of another of a
continuing contract of employment on the ground of breach of one of the terms
of the contract. And the context is such as to indicate that certain breaches of a
non-serious nature, some of which would be within the connotation of
misconduct, are not regarded as grounds for termination. In such a situation it
is reasonable to interpret the expression “misconduct” as referring to conduct
so seriously in breach of the contract that by standards of fairness and justice
the employer should not be bound to continue the employment.
This situation would arise if there were conduct inconsistent with the
fulfillment of the express or implied conditions of service. It is conduct of that
kind which will justify dismissal at common law.”
It was also observed in North by a single judge that although the conduct of the
journalist concerned was “reprehensible” it fell short of misconduct justifying
summary dismissal because it was an isolated incident which occurred “under [the]
considerable strain” of preparing for a nightly news bulletin.
In Gera v Commonwealth Bank of Australia Ltd the employee’s Australian Workplace
Agreement provided for termination without pay in lieu of notice for misconduct if the
misconduct was serious. In that case it was observed that:
“The use of the adjective “serious” imposes an additional requirement before the
Bank can terminate employment without notice. Something more than mere
misconduct is required.”
[2014] FWC 7310
13
In Gera the Court went on to find that there was no doubt that the sexual or indecent
assault of a fellow employee was serious misconduct warranting summary termination
without payment in lieu of notice, as it constituted a fundamental breach of an
employee’s duty, particularly where the employee was a senior employee and mentor
to the employee who had been assaulted.”20
(References omitted)
[55] In the circumstances of this case, I am satisfied that the Applicant’s conduct was
sufficiently serious to constitute serious misconduct. While the Applicant gave evidence that
he had not been explicitly trained in the Respondent’s DAMP, he conceded that he was aware
of the policy. Further, the evidence of the Respondent shows that the Applicant had
undertaken specific training in relation to the Qantas DAMP, which was in substantially
similar terms to the Respondent’s DAMP.
[56] The Applicant was aware that the Respondent considered drug and alcohol use to be
serious issues. This is evidenced by his attempt to dilute the test results by consuming large
quantities of water immediately prior to his drug test.21 The nature of the work undertaken by
the Applicant explains the seriousness with which the Respondent treats the use of drugs and
alcohol. It is clear that safety is a significant concern for individuals performing work such as
that the Applicant performed. Further, the fact that the work was undertaken at an airport
would clearly heighten tensions around issues such as access to, use of and possession of
illegal substances due to security concerns. Ms Canfield also pointed out in her oral evidence
that the Applicant’s place of work was somewhat unique, in that the work was undertaken
inside the client’s premises, and that due to the nature of the workplace, up to three different
DAMPs applied to the Respondent’s employees.22 In these circumstances, it is clear that the
Applicant’s conduct constituted serious misconduct within the ordinary meaning of the term.
[57] I also find that the Applicant’s conduct had the capacity to cause serious and imminent
risk to the reputation, viability or profitability of the Respondent within the meaning of reg
1.07 of the Fair Work Regulations 2009. Given the background set out above, I am satisfied
that a confirmed positive test result for illegal drug use by an employee would cause serious
and imminent risk to the Respondent’s reputation. Contrary to the Applicant’s submissions, it
is not necessary for the Respondent to prove that its reputation, viability or profitability was
affected by the Applicant’s actions. It is sufficient that his conduct caused serious and
imminent risk thereof. Given the highly sensitive nature of the work performed by the
Respondent’s employees, it is reasonable to conclude that issues such as employees returning
confirmed positive test results for illegal drugs could affect its reputation, particularly given
the Respondent’s complex relationship with its clients.
[58] I do not accept the Applicant’s submissions that the risk to reputation was created by
the Respondent by choosing to share the test results with its clients. I am not satisfied on the
evidence before me that the Respondent was not obligated to share the Applicant’s test results
with its clients. However, even if no obligation existed, the Respondent is entitled to conduct
its relationship with its clients in the way that it sees fit. Should the Respondent choose to be
open and transparent with its clients in relation to the implementation and results of its drug
testing, it is entitled to do so. If this openness and transparency were to hurt its reputation, it
could only be due to the actions of its employees.
[2014] FWC 7310
14
Other relevant factors
[59] The Applicant submitted that the following factors were relevant to finding that his
dismissal was harsh:
The sanction of termination being disproportionate to his conduct;
Sanctions issued to other employees of the Respondent for similar conduct;
The applicant’s length of service and work record;
The personal and economic circumstances of the Applicant.
[60] I have addressed the first of these factors above in my discussion of serious
misconduct. In relation to the second, I am not satisfied that the Applicant has been treated
harshly when compared to other employees of the Respondent. There was some evidence that
other employees of the Respondent had been terminated at a similar time to the Applicant for
returning non-negative test results. While there was some evidence to suggest that individuals
who had returned non-negative results due to the consumption of prescribed medications had
not been terminated, I am satisfied that the circumstances of the matter before me are
sufficiently distinguishable that no harshness can be found.
[61] I have considered the applicant’s length of service, work record and his personal and
economic circumstances and I am not satisfied that these factors negate the serious
misconduct engaged in by the Applicant. I am not satisfied that the Applicant’s dismissal was
harsh.
Full bench decision in Harbour City Ferries v Toms [2014] FWCFB 6249
[62] Subsequent to the hearing of this matter a Full Bench issued its decision in Harbour
City Ferries v Toms [2014] FWCFB 6249. I allowed the parties leave to provide submissions
on this decision. I have considered the submissions of both parties and the decision of the Full
Bench in this matter. While it is of some relevance that the Full Bench was required to deal
with a policy that was not dissimilar to the Respondent’s DAMP, every application must be
judged on its own merits. While I acknowledge some factual similarities between the matters,
the Full Bench decision has not had a significant impact on my decision in this matter.
Conclusion
[63] Having considered each of the matters specified in s.387 of the Act, I am not satisfied
that the dismissal of the Applicant was harsh, unjust or unreasonable. Accordingly, I find that
the Applicant’s dismissal was not unfair. An order will be issued with this decision dismissing
the application.
VICE PRESIDENT
THE FAIR WORK CO COMMISSION AF NOISS THE SEAA
[2014] FWC 7310
15
Appearances:
L Saunders of the Australian Manufacturing Workers’ Union for the Applicant.
P Rozen of Counsel for the Respondent.
Hearing details:
2014.
Sydney:
August 4, 5.
Final written submissions:
Applicant, 19 September 2014.
Respondent, 22 September 2014.
Printed by authority of the Commonwealth Government Printer
Price code C, PR556661
1 Woolworths Ltd t/as Safeway v Brown (2005) 145 IR 285.
2 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 373, 377-378.
3 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371, 373.
4 Ibid.
5 Annetta v Ansett Australia (2000) 98 IR 233; Print S6824.
6 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
7 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.
8 Transcript, U2014/634, 4 August 2014, PN1469.
9 Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41].
10 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
11 Previsic v Australian Quarantine Inspection Services Print Q3730.
12 (2000) 98 IR 137.
13 Ibid at 151.
14 Exhibit 2, Statement of Owen Sharp, Attachment E.
15 Transcript, U2014/634, 4 August 2014, PN1012–PN1014.
16 Ibid PN94–PN130.
17 Exhibit A, Statement of Neal William Charles Hiland, p.6.
18 Exhibit 2, Statement of Owen Sharp, Attachment A, p.14.
19 Exhibit 2, Statement of Owen Sharp, Attachment B, p.4.
20 Wintle v Ruc Cementation Mining Contractors Pty Ltd (No.3) [2013] FCCA 694, [97]–[92].
21 Exhibit 2, Statement of Owen Sharp, para. 27.
22 Transcript, U2014/634, 4 August 2014, PN1123.
