1
Fair Work Act 2009
s.394—Unfair dismissal
Shane Clayton
v
Coles Group Supply Chain Pty Ltd
(U2016/663)
COMMISSIONER HAMPTON ADELAIDE, 19 AUGUST 2016
Application for relief from unfair dismissal – alleged serious breach of the drug and alcohol
policy – zero tolerance policy – high risk environment – induction training – indicative
information about detection periods provided – whether zero tolerance policy reasonable –
breach of reasonable policy found – applicant misled employer about when last consumed -
whether valid reason – whether harsh – mitigating factors assessed – on balance dismissal
not harsh, unjust or unreasonable.
1. Background and case outline
[1] Mr Clayton has made an application under s.394 of the Fair Work Act 2009 (the FW
Act) seeking a remedy for an alleged unfair dismissal by his former employer, Coles Group
Supply Chain Pty Ltd (Coles).
[2] Mr Clayton commenced employment on 1 July 2013, initially as a casual employee
and then as a permanent part-time team member, at the Coles Edinburgh Parks Distribution
Centre (the Coles EPDC). Mr Clayton’s position included the operation of various forms of
manual handling equipment (MHE), which required him to hold a high risk license. Since
September 2014, he has been a delegate of the Shop, Distributive and Allied Employees
Association (SDA).
[3] The Coles EPDC is large, covering approximately 70,000 m2, and is a high risk
environment due to the workplace being busy with MHE such as forklifts and reach trucks, as
well as pedestrians. This is reflected in many of the policies and procedures operating at the
facility, including the Drug and Alcohol policy (the D&A policy).
[4] The D&A policy is what is often described as being a “zero tolerance policy”. That is,
any level of (detectable) alcohol or illicit drugs will be a breach of the policy and lead to a
sanction.
[5] On 25 January 2016, Mr Clayton was involved in a forklift incident with another
employee. It is common ground that there was no damage to persons or property and that
Mr Clayton was not at fault in the incident. On the same day, Mr Clayton (and others)
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E AUSTRALIA FairWork Commission
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underwent an on-site oral fluid drug test. The test for Mr Clayton returned a non-negative
result for cannabinoids.
[6] Following the further testing of oral fluid samples taken from Mr Clayton at that time,
and the receipt of the laboratory result confirming a positive reading of 400 μg/L Delta-9-
tetrahydrocannabinol (THC), a disciplinary meeting was conducted on 1 February 2016. As a
result of that meeting, Mr Clayton’s employment was terminated without notice on the basis
of a breach of the D&A policy.
[7] Mr Clayton has admitted that he smoked cannabis (marijuana) on the evening before
reporting for duty on 25 January 2016.
[8] Mr Clayton contends that the dismissal was unfair on the following grounds:
The breach of the D&A policy was not wilful, substantial or a deliberate
disobedience and this is a fundamental consideration in terms of whether there was a
valid reason for dismissal and whether any dismissal was harsh;
He was advised during the induction training to the effect that he needed to ensure
that he did not smoke marijuana within 3 to 6 hours of the commencement of his
shift and did not do so;
He reasonably believed that he complied with the D&A policy by leaving a
considerably longer gap between his consumption of cannabis and his attendance at
work;
The testing results were potentially flawed and should not be relied upon;
His consumption of cannabis was linked to workplace stress and was part of his
strategy to manage that circumstance; and
Coles failed to consider alternatives to dismissal; instead it interpreted the zero
tolerance policy as meaning that dismissal was the only option.
[9] In substance, Mr Clayton contends that the dismissal was harsh and unjust in all of the
circumstances. He seeks reinstatement to his former position.
[10] Coles contends that the dismissal was not unfair on the following grounds:
The D&A policy is reasonable and appropriate given the circumstances;
A single breach of the D&A policy constitutes a valid reason for dismissal;
The positive test result was reliable and demonstrated that the policy had been
breached with the likelihood that Mr Clayton had consumed cannabis within the
few hours before he attended at work, and perhaps during a break in his shift on
25 January 2016;
There was nothing in the induction training that excused the breach and the breach
was a serious one that has led to employees, in the same or similar circumstances,
losing their employment;
Mr Clayton has not been open and honest about the timing of his consumption of
cannabis and other matters during the testing and disciplinary process, and was
unreliable in terms of his evidence; and
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Mr Clayton was notified of the reasons for his dismissal, given the chance to
respond and was offered, and took, the opportunity to have a support person
present.
[11] There is no dispute that Mr Clayton was protected from unfair dismissal within the
meaning of s.382 of the FW Act and there is a valid application before the Commission.
2. The witness evidence
[12] Mr Clayton provided a witness statement and gave evidence in the matter. He also
relied on the witness statements of the following Coles EPDC employees:
Mr Nicholas Jackson;
Mr Leroy Cook;
Mr Robert Zammit;
Mr Philip Baker; and
Mr Sam Vickery.
[13] Amongst other matters, these employees confirmed the nature of the explanation
provided to them as part of the induction and other training in relation to the D&A policy.
This included some indicative information consistently provided to them about the “window
of detection” for drugs including cannabis.
[14] Mr Clayton also relied upon the witness statement of Ms Louise Bailey, the
Warehouse Organiser at the SDA. Ms Bailey provided evidence about the development of the
D&A policy, and the meeting of 1 February 2016, where she attended in support of
Mr Clayton. Ms Bailey’s evidence was not challenged.
[15] Mr Clayton further relied on an expert report prepared by Dr Ken Pidd, from the
National Centre for Education and Training on Addiction, Flinders University, who also gave
oral evidence.
[16] Coles relied on the witness statements, and the oral evidence, of:
Ms Louise Gibbs – Shift Manager at the Coles EPDC;
Ms Erin Hughes – Health and Safety Manager at the Coles EPDC;
Mr Darren Bigg – Training Coordinator at the Coles EPDC; and
Ms Genevieve Hawkins – General Manager of Health, Safety and Wellbeing at
Coles.
[17] Coles also relied upon the witness statement of Mr George Bannard, the Drug and
Alcohol Technician who performed the on-site testing of Mr Clayton and took the samples
that were supplied for laboratory testing. Mr Bannard’s evidence was not challenged.
[18] Coles further relied on an expert report prepared by Dr Robert McCartney, an
Occupational Physician specialising in workplace drug and alcohol testing who also gave oral
evidence.
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[19] The following are amongst the issues in dispute in this matter:
The timing of Mr Clayton’s use of cannabis, including the plausibility that he
consumed later than admitted; and
The validity of the (positive) test results relied upon by Coles.
[20] The evidence of Dr Pidd and Dr McCartney went largely to these issues. I accept that
both are experts and some of their evidence was consistent. However, on the contested
matters within their expertise, I generally prefer the evidence of Dr McCartney as his
evidence was more objective and convincing.
[21] I found, for the most part, that the evidence of Mr Clayton was given in an open and
honest manner. I note that he made some appropriate concessions and accepted that he was
not up front with Coles about when he originally claimed to have consumed the cannabis.
However, he was less convincing about his attitude to, and extent of, his consumption of
cannabis more generally. Further, Mr Clayton was not convincing about the timing of his
cannabis consumption prior to attending for work on 25 January 2016 and what he asserted
was the total absence of food and drink (other than half a cup of coffee) between 11.00 pm on
24 January 2016 and 6.30 pm on the next day. Accordingly, I have treated those parts of his
evidence with considerable caution.
[22] The evidence of the other Coles EDPC employees and Ms Bailey was not challenged
and I accept it.1
[23] I have found that each of the witnesses called by Coles gave their evidence openly and
honestly. There was some tension between the witnesses about the extent that circumstances,
other than a positive test for an illicit drug, would be taken into account in determining
whether an employee would be dismissed. It is evident to me that the management of the
Coles EPDC have applied the policy to the effect that a positive result will lead to the
conclusion of the employment – by resignation or dismissal. The fairness of that approach as
applied in this case is ultimately a matter for the Commission to determine.
[24] In my consideration of the disputed evidence and making my findings of fact in this
matter, I have had regard to the approach of Dixon J in Briginshaw v Briginshaw2 as follows:
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an
actual persuasion of its occurrence or existence before it can be found. It cannot be
found as a result of a mere mechanical comparison of probabilities independently of
any belief in its reality. No doubt an opinion that a state of facts exists may be held
according to indefinite gradations of certainty; and this has led to attempts to define
exactly the certainty required by the law for various purposes. Fortunately, however, at
common law no third standard of persuasion was definitely developed. Except upon
criminal issues to be proved by the prosecution, it is enough that the affirmative of an
allegation is made out to the reasonable satisfaction of the tribunal. But reasonable
satisfaction is not a state of mind that is attained or established independently of the
nature and consequence of the fact or facts to be proved. The seriousness of an
allegation made, the inherent unlikelihood of an occurrence of a given description, or
the gravity of the consequences flowing from a particular finding are considerations
which must affect the answer to the question whether the issue has been proved to the
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reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should
not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
[25] Further, I note that in Budd v Dampier Salt Ltd3 a Full Bench of the Australian
Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:
“[14] The second ground of appeal is that the Commissioner erred in the application of
the principle in Briginshaw. So far as relevant, that case decided two things. The first
is that where allegations are made in civil proceedings which, if proven, might found
criminal liability, the standard of proof remains the civil standard. It follows that it is
necessary that the court only be satisfied on the balance of probabilities. The second
thing is that in such a case a proper degree of satisfaction is required having regard to
the seriousness of the allegations. In the words of Dixon J., as he was: “The nature of
the issue necessarily affects the process by which reasonable satisfaction is obtained.”
[15] In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd the High Court pointed out
that care needs to be taken in applying what was said in Briginshaw. Furthermore, it
would be wrong, for example, to apply a standard of proof higher than the balance of
probabilities. Counsel for the appellant contended that the Commissioner failed to
have regard to the seriousness of the situation for the appellant in making findings of
fact as to what had occurred and in deciding that there were no extenuating
circumstances for the appellant's behaviour.
[16] In relation to fact finding, the Commissioner analyzed the evidence with care. In
making findings he indicated how the findings were reached, in particular why he
rejected some evidence and accepted other evidence. There was no error in the fact-
finding process. To the extent that this ground involves a contention that the
Commissioner did not exercise the statutory discretion properly it should also be
rejected. Briginshaw was a case concerned with the nature of findings about conduct.
It is potentially misleading and unnecessarily complicated to attempt to apply
Briginshaw to the exercise of judgement required once the findings about conduct
have been made. Section 652(3) specifies the way in which the discretion is to be
exercised and the matters to be taken into account. Loss of employment is a serious
matter and applications for a remedy are to be dealt with seriously. That the
Commissioner so regarded it in this case is clear from his decision. There is no basis
on which to conclude that the Commissioner's approach to the fact-finding process or
to the exercise of the discretion was erroneous because of anything said by the Court
in Briginshaw. The second ground of appeal must be rejected.”
3. The immediate events leading to dismissal
[26] Mr Clayton admits to smoking a few joints of marijuana on the evening of 24 January
2016. Although he had originally indicated an earlier time to Coles, in these proceedings, it is
his contention that he did not smoke later than 11.00 pm that evening. I will deal with this
aspect shortly.
[27] The following day, 25 January 2016, Mr Clayton commenced his shift at the Coles
EPDC at 1.30 pm.
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[28] At approximately 5.30 pm, there was an incident between the forklift vehicle that
Mr Clayton was in control of and another forklift vehicle. There was no damage to persons or
property and Mr Clayton was not at fault in the incident. Such incidents are not uncommon at
the Coles EPDC.4
[29] The incident was reported to management by both Mr Clayton and the driver of the
other forklift. It is likely that at least initially, a D&A test was not going to be performed on
the two employees involved. However, when the D&A Technician came to site for another
purpose, Mr Clayton and the other driver, were requested to undertake a drug test. Both
agreed to do so. I note that in the lead up to these events Ms Gibbs did not expect Mr Clayton
to test positive and there were no signs evident to her that he was under the influence of
drugs.5
[30] The oral fluid drug testing was undertaken by Mr Bannard at 6.30 pm. Mr Clayton was
the first to be tested and returned a non-negative result. There were no other non-negative
tests that day. Arrangements were made for the additional samples taken from Mr Clayton at
that time to be sent to a laboratory for testing and verification.
[31] As part of taking the oral samples, Mr Clayton was asked a series of questions by
Mr Bannard and these were recorded on a testing record by Mr Bannard and signed by both
men. The questions and responses were as follows:
“1. Have you had anything to eat or drink in the last 10 minutes? No
2. Have you consumed any alcohol in the last 8 hours? No
3. Have you taken any illegal drugs in the last 24 hours? No
4. Are you currently under the effect of illegal drugs? No
5. Are you taking any medication prescribed by a doctor? No
6. Are you taking any over the counter/non prescribed medication? Yes”6
[32] A copy of the testing record was also provided to Coles with the above answers
redacted in that copy for privacy reasons. The full details were however provided to the
laboratory that undertook the testing. I note that this included the name of the over the counter
medication and that this had no bearing on the test results.
[33] I note that Mr Clayton stated that, when asked if he had consumed any illegal drugs in
the past 24 hours, he had advised Mr Bannard that “I’m pretty sure it was over 24 hours ago
or close to…I’m pretty sure I’ll be all right.”7 He had no explanation for the fact that the
answer to question 3 on the testing record, which he did not have access to prior to the
hearing, was incorrect. I do not draw any negative inference from his evidence on that
particular aspect given the circumstances.
[34] Ms Gibbs informed Mr Clayton of the test result and advised him that he was being
suspended with pay and sent home. Mr Clayton declined an offer for Ms Gibbs to arrange a
taxi for him.
[35] On 29 January 2016, the Coles EPDC was advised of the laboratory test results for
Mr Clayton. The testing was performed by an accredited laboratory. The pathology result was
a reading of 400ug/l for THC. Ms Gibbs advised Mr Clayton of that further result and
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arranged for him to attend a disciplinary meeting on the next working day with a support
person.
[36] On 1 February 2016, Mr Clayton attended the disciplinary meeting with Ms Bailey as
his support person. The meeting was conducted by Ms Gibbs and Ms Hughes, on behalf of
Coles.
[37] Mr Clayton was advised that Coles considered that he had committed a serious breach
of his employment contract and safe working practices due to the positive test result
confirmed by the laboratory. Reference was made to the laboratory pathology report and
Mr Clayton was advised, in effect, that the D&A policy adopted by Coles was a “zero
tolerance” policy and that the requirement and the need for appropriate conduct in this regard
were the subject of induction training that he had attended. Further, he was advised that
coming to work “under the influence” of THC was a serious breach of his “contract”.8
[38] Mr Clayton was given an opportunity to respond to the allegations and this involved
adjourning the meeting to permit him to consult with Ms Bailey to prepare a response.
[39] Mr Clayton subsequently responded by adding the following notes to the meeting
record:
“After consultation with my Dr. regarding anxiety & stress he advised me to go on
Workcover and that it was directly related to work. After discussions about medication
and my options I had made a decision to use cannabis for sleeping and anxiety issues.
So not to look weak or unable to do my job to my colleagues/management. On the day
of the incident I had not used any cannabis since approx 5:30-6:00 pm the night before.
I was not impaired in anyway.
I was not nervous about taking a test as I was not impaired in anyway or did I feel any
traces would indicate I had used cannabis nearly 24 hrs prior to the incident &
subsequent testing. The Machines were not damaged in any way or any other MHE.
I was unaware cannabis would show any traces in my saliva. As I was fit & ready to
work.
I had been on site since 1:30 pm, directly spoken to managers & colleagues throughout
this time period (1:30-6:30 pm) and was working safely.
I feel colleagues and management were not at risk in anyway & nor was Coles
property or name.”9
[40] After considering that response and discussing the matter with a Senior Manager, a
decision was made to dismiss Mr Clayton. Coles considered that given the high reading and
the relatively short window for oral testing it was likely that Mr Clayton had consumed more
recently than he had indicated. Further, it was considered that an exception (to the policy)
could not be made on that basis. These latter aspects were not communicated to Mr Clayton at
that time.
[41] Mr Clayton was advised that Coles had “no other option but to terminate your
employment”.10 In response to an invitation to say anything further, Mr Clayton indicated that
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the person undertaking the testing had pulled a pair of gloves out of his pocket before
conducting the test. Mr Clayton then also spoke about the legitimate medical use of
marijuana.
[42] Mr Clayton was dismissed at the 1 February 2016 meeting and was not given any
notice or pay in lieu thereof.
4. The Drug and Alcohol Policy
[43] The most relevant elements of the D&A policy are set out below.
[44] The principles and standards of the policy are stated as being:
“Principles
The following principles have been used in establishing this policy:
Coles’ Code of Conduct underpins the Drugs and Alcohol Policy.
Safety of Team Members, contractors and visitors at Coles operated Distribution
Centres.
From a safety perspective, persons are considered “Fit for Duty” when their
behaviour is not affected by drugs and/or alcohol.
Conclusive result not proof of impairment.
The intent of any testing process is to provide a conclusive (positive/negative) result
and not to establish the extent to which a person may be impaired from performing
work tasks.
Simple to operate and understand Testing procedures must be simple to operate, use
and understand.
All testing will be coordinated and conducted by an independent and accredited
testing agency.
Standards
Standards will be adopted in line with defined legal parameters:
In the case of illicit drugs (examples including cannabis, amphetamines and opiates),
the standard is zero tolerance.
No Team Member employed at any Coles Distribution Centre in any position should
have any alcohol or blood alcohol content or illicit drugs present in their system
whilst working.
It is the responsibility of each team member to ensure they present to work ‘fit for
duty’ which includes zero blood alcohol content and no illicit drugs present in their
system.
Team Members will be responsible for any loss of income or other expenses incurred
as a result of non-compliance with the Policy.
To reinforce the objectives of the Policy, Coles has installed Alcohol Breathalyzer
equipment at all Coles DCs to enable Team Members to self-test.
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Use of prescription and over the counter medication is addressed as part of an
ongoing overall education program.
Testing processes and procedures will comply with all relevant legislation and
Australian Standards. This is done to ensure integrity of the program and
reliability/legal enforceability of results. These include (but are not limited to):
Australian Standards;
Privacy Amendment (Private Sector) Act 2000; and
Relevant State Health Records Acts applicable”.11
[45] The policy states that it will be applied as follows:
“Applying Policy
Subject to the limited exception in relation to authorised functions, the consumption,
use, sale or distribution of alcohol on or in the workplace or its perimeters is strictly
prohibited.
Coles will adopt the following approach where a Team Member returns a positive
result.
Where a Team Member returns a positive result, but less than 0.02% BAC, a
discussion will be held with the Team Member on their “fit for work” status. The
Team Member will be offered assistance through the Coles EAP program or other
external support programs.
In the event that a Team Member returns a positive result less than 0.02% BAC on
more than one occasion, disciplinary action may occur in line with Coles Code of
Conduct and Managing Team Member Performance and Behaviour guidelines. The
Team Member will be encouraged to seek assistance through the Coles EAP
program or other external support programs.
Where a Team Member returns a positive result, equal or greater than 0.02% BAC
but less than 0.05% BAC, the Team Member will be stood down for the full shift
without pay. Further, in such situations disciplinary action may occur in line with
Coles Code of Conduct and Managing Team Member Performance and Behaviour
guidelines. The Team Member will be strongly encouraged to seek assistance
through the Coles EAP program or other external support programs.
Where a Team Member returns a positive result equal to or greater than 0.05% BAC,
the Team Member will be subject to disciplinary action in line with Coles Code of
Conduct and Managing Team Member Performance and Behaviour guidelines and
may result in termination of employment.
Where a Team Member returns a positive result for illicit drugs, the Team Member
will be subject to disciplinary action in line with Coles Code of Conduct and
Managing Team Member Performance and Behaviour guidelines and may result in
termination of employment.
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Testing for Alcohol and Drugs
Testing for alcohol and drugs is conducted by an independent drug and alcohol testing
company. Testing will be undertaken in the following circumstances with all costs
relating to this policy will be paid by the Company:
During pre-employment medical assessments and for change in employment status,
e.g. casual to part-time, limited tenure or full-time;
Where there are reasonable grounds based on observations by the responsible
manager or supervisor of deteriorating work performance or any abnormal conduct
or behaviour (refer Appendix C);
Immediately following a serious incident or near miss; and
Random testing”.12
[46] I note that Mr Clayton did not press his original contention that the circumstances
contemplated for testing to be undertaken did not exist.13 This was a reasonable concession
given that Mr Clayton readily agreed to undergo the testing and the circumstances of the
incident.
[47] The consequences of a positive result are relevantly set out as follows:
“Positive Result – Equal to or Above 0.02% BAC Alcohol to Illicit Drugs
In the event of a “positive” reading equal to or above 0.02% BAC for alcohol or illicit
drugs, the Team Member, the DC Manager or most senior manager on site is
immediately advised of the result. No opinions or comments are offered or considered
by the testing staff.
The result is recorded and the Team Member is invited to sign the documentation and
an edited copy supplied to the Company preserving confidentiality. Such
documentation shall include time and date of the screening, the Team Member’s
details, the screening number and result.
The Team Member is able to offer any comment on the “positive” screening result,
should they choose. Any discussion on the “positive” result is strictly between the
Team Member and the testing staff
In the event of a “positive” result a “chain of custody” process will immediately take
place.
A further saliva sample will be taken, divided into primary and secondary samples and
each sealed with a security seal bearing the date and initials of the Team Member and
chain of custody number. The samples are prepared in the presence of the Team
Member for analysis by an accredited analytical laboratory.
The samples are sealed into a “Chain of Custody” bag initialled by the Team Member
and testing technician.
The samples are delivered to the analytical laboratory for screening and confirmation
of the initial reading;
The analytical laboratory is to supply a certificate of their independent screening
result. Two copies of the certificate are served, one to the company and one to the
Team Member, usually within 72 hours.
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Testing staff will not participate in any negotiations or discussions related to
employment or workplace disciplinary procedures with the Team Member or the
Company.
A company management member will ensure the Team Member is sent home after the
documentation has been completed. It will be the Team Member’s own responsibility
to either arrange someone else to pick-up their vehicle or leave it on the Company’s
premises.”14
[48] The D&A policy also encourages employees to access a confidential Employee
Assistance Program (EAP) and other support services in the event that they experience drug
or alcohol problems. The policy also provides that if this is done, and in the absence of the
employee being involved in any incidents, continuing employment will not be jeopardised.
5. The induction training provided by the Coles EPDC
[49] Each of the Coles EPDC employees, including Mr Clayton, have undertaken an
induction program in relation to Coles’ policies, including the D&A policy.
[50] As a result of that induction training, Mr Clayton would reasonably have understood
the following:
The key features of the D&A policy, the reasons for this policy and its importance
within the workplace;
Where to go for further information and advice;
That no team member employed at the Coles EPDC is to have any alcohol or illicit
drugs present in their system whilst working;
The testing procedure and protocols;
The need to disclose prescribed drugs;
That testing for various forms of illicit drugs, including cannabis, will be
undertaken in accordance with appropriate standards; and
That a positive test result will, or at least is likely to, lead to dismissal.
[51] In addition, Mr Clayton - and other Coles EPDC workers - were advised that as an
indicative guide, the window of detection for cannabis when subject to oral testing was
between 3 and 6 hours after consumption.15 Mr Clayton was also advised that it was his
obligation to attend work free from drugs, and if in doubt, not to attend at all. This is
reinforced in the D&A policy itself.16 Mr Clayton also expressly acknowledged these
matters.17 I also note that Mr Clayton, based upon his own information, determined that if a
person smoked marijuana it would (or may) show up in a drug test for a period of up to 8
hours after smoking.18 I note also that the other Coles EPDC employees who gave evidence
confirmed that based upon their induction training, their understanding was “as long as you
had an 8 hour break between smoking marijuana and attending the worksite, you should be
okay.”19
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6. Findings about Mr Clayton’s consumption of Cannabis
[52] There is a dispute about when Mr Clayton consumed cannabis, and potentially how
much he consumed. This matter has proceeded on the basis that Mr Clayton smoked the
cannabis, as against any other forms of consumption.
[53] This dispute has potential implications as to whether Mr Clayton knowingly or
recklessly breached the D&A policy, given the information provided to him by Coles about
the window of detection.
[54] Mr Clayton is a regular user of cannabis and does so for recreational purposes as well
as to aid with stress relief and assist him to sleep. There were stressors in the workplace that
arose from an earlier incident in which he was abused by another employee.
[55] Mr Clayton now contends that he consumed some cannabis no later than 11.00 pm on
the evening before his attendance at work on 25 January 2016. In terms of the apparent
indication - from the high THC reading confirmed by the laboratory - that his consumption
was much closer to the timing of the samples being taken than that, Mr Clayton relied upon
his own evidence to the contrary and the evidence of Dr Pidd.
[56] Dr Pidd provided the opinion that that it was not “entirely implausible”20 that the THC
reading could have resulted from cannabis use that occurred more than 20 hours earlier. I note
that this was apparently based upon Mr Clayton’s suggestion, as part of seeking a report, that
he had smoked marijuana at 8.00 pm on the night before his shift. In support of that opinion,
Dr Pidd advanced the following propositions:
THC can be detected in oral fluid for up to 24-30 hours post ingestion;
The THC levels post ingestion decline but may vary widely depending upon the
specimen donor’s cannabis use history and the specimen collection device utilised;
and
Mr Clayton’s THC level should have been much lower; however:
The samples may have been contaminated, though the use of used gloves as
suggested by Mr Clayton;
The on-site collection process was not accredited as being Australian
Standard compliant;
There may have been human error in the testing;
The “chain of custody” forms were not in order; and
There may have been cannabis debris lodged between the teeth and gums and
this may have been transferred to the oral fluid from blood.
[57] Dr Pidd further indicated that had Mr Clayton smoked cannabis at 8.00 pm on the
prior evening it is unlikely that he would have been impaired or affected by the consumption
of marijuana by the time he commenced his shift.
[58] Coles contends that Mr Clayton must have consumed much closer to his attendance at
work and/or during a break whilst at work. It relies upon the results of the laboratory testing
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and contends that those results were reliable and are consistent with later drug consumption.
In that regard, it relies upon the evidence of Mr Bannard and Dr McCartney.
[59] Mr Bannard confirmed the following:
He conducts testing in a manner that is compliant with Australian Standard
AS5760-2006;
He conducted the test on Mr Clayton that is the subject of these proceedings, and
given the number of tests performed by him since that time, he has no particular
recollection of that test;
He completed the appropriate forms consistent with the standard procedure;
He denies that he would ever use a used glove or take it from his pocket; and
In any event, the gloves used do not come into direct contact with the samples.
[60] Dr McCartney gave the opinion that Mr Clayton returned a confirmed valid positive
oral fluid test for cannabinoids. He further indicated that the relatively high reading was
indicative of recent use (being less than 8 hours prior to the testing) and was most likely
indicative of consumption between 1 and 3 hours prior.
[61] Dr McCartney also opined that the result was very unlikely to represent “smoking a
few joints over a few hours between 19 and 24 hours prior to the test”21 – which he
understood was Mr Clayton’s position.
[62] In relation to the propositions advanced by Dr Pidd, Dr McCartney indicated to the
following effect:
It is unusual to see the detection of THC in oral fluids over 8 hours after
consumption;
Secreted THC levels in oral fluid are usually very low;
Although deposits of cannabinoids can be sticky and could in theory be transferred
to an oral test, it was more likely to dissipate over several hours due to the impact
of saliva and other factors;
Deposits of cannabinoids in the mouth could potentially attach to the testing device
and a sample and create an initial non-negative reading however this would not
explain the high THC readings given the nature of the drug, the sampling
methodology and laboratory testing undertaken;
The absence of accreditation for on-site testing is not a reflection that the testing
was not conducted in accordance with the relevant Australian Standard (as no
accreditation is presently available);
The use of a previously used glove as a source of a contaminated sample was a
theoretical possibility but would be “drawing a long bow”22 as an explanation for
the test result; and
There was nothing in the documentation associated with the testing of
Mr Clayton’s samples that meant that it was not conducted in accordance with the
relevant Australian Standard or was invalid.
[2016] FWC 4724
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[63] For reasons outlined earlier in this decision, where there is a direct conflict on matters
falling with the expertise of the two expert witnesses, I prefer the evidence of Dr McCartney.
[64] I have considered the proposition that some residue of cannabis remained in
Mr Clayton’s mouth and was responsible for the relatively high THC reading. This relies, in
part, upon the proposition that Mr Clayton did not consume any food or water (other than half
a cup of coffee) and did not clean his teeth between 11.00 pm on 24 January 2016 and
6.30 pm on 25 January 2016. I consider that the absence of food or water over that period is
very unlikely and I have found that Mr Clayton’s evidence was not convincing on this aspect.
It is therefore very unlikely that the foundation for this proposition occurred. Further, and in
any event, this scenario would not provide an explanation for the high THC laboratory
reading, given the need for the residue to directly impact upon the various samples that were
taken, and due to the nature of the testing performed.23
[65] I have considered Mr Clayton’s proposition that Mr Bannard used gloves drawn from
his pocket and that this impugned any results. I consider that it is very unlikely that this took
place, and further, that it would not, on the balance of probabilities, produce a positive sample
in any event. It would be necessary that the gloves had been in contact with cannabis and that
the gloves actually came into contact with the initial test sample and the other samples
provided to the laboratory and deposited some cannabis onto each sample. Mr Clayton was
the first to be tested on that day and was the only non-negative test. Mr Bannard rejected any
notion that this would ever be his practice and his evidence was not challenged. In these
circumstances, I am satisfied that this proposition does not provide an explanation for the high
THC reading or cast doubt on the validity of the testing itself.
[66] There is no substance in the concerns raised about the chain of custody (or other)
documentation associated with the testing or the fact the on-site testing was not accredited.
[67] Having regard to the expert and other evidence provided, and noting the fact that
Mr Clayton’s consumption of cannabis prior to the events in question is not in dispute, there
is no objective basis to doubt the test results relied upon by Coles in this matter. This also
leads to the inevitable conclusion that Mr Clayton was at work with detectable THC in his
system.
[68] However, there remains a dispute about when and/or how much cannabis Mr Clayton
consumed. As outlined earlier, this is relevant to the extent that his intentions are germane to
the determination of this matter.
[69] Dr McCartney gave evidence to the effect that the level of THC detected was
consistent with Mr Clayton having smoked marijuana 1 to 3 hours prior to testing, however it
was feasible that very significant use 5 to 6 hours earlier would also give a high level. It
would also be expected that someone with a very high “dose” of that nature would be noticed
as being impaired, but not always, depending upon their history of use and their desire and
capacity to modify their behaviour.24
[70] In terms of the suggestion put by Coles in closing submissions that Mr Clayton may
have consumed cannabis during a break whilst at work, this was not put directly to him under
cross-examination. That is, it was suggested to him that he may have consumed cannabis
much later than he indicated and that he did have a break during which he attended a “smoko
hut”, however no direct link between those two propositions was put to Mr Clayton. In these
[2016] FWC 4724
15
circumstances, and given the significance of this proposition, I do not consider that a finding
of that nature can properly or fairly be made.25
[71] This does, however, leave the probability that Mr Clayton consumed a significant
amount of cannabis in the morning of 25 January 2016 before attending his shift commencing
at 1.30pm. There are competing factors that inform that assessment. These include:
Mr Clayton gave evidence that he would smoke cannabis to assist him to sleep or
when he was anxious and he also indicated that this applied on the night of
24 January 2016 and was stressed when he awoke on the next day;
I have significant reservations about Mr Clayton’s evidence as to the timing of his
consumption of cannabis and related circumstances;
The objective evidence is consistent with the proposition that Mr Clayton
consumed cannabis at some point in the morning of his shift;
It is likely that there would be some signs of very recent and large consumption of
cannabis when Mr Clayton attended for work however there were no such signs
evident in the workplace;
Mr Clayton readily reported the MHE incident and attended the testing procedure
in a manner consistent with someone who thought that he would not get a non-
negative result;
Mr Clayton may have considered that it was unlikely that he would test positive
given the indicative detection window explained to him; and
He was however a regular user of cannabis, both for recreational and stress-relief
purposes, and this may explain why there were no obvious signs of relatively
recent consumption.
[72] Having considered all of the circumstances in light of the evidence and the relevant
principles to be applied,26 I find on the balance of probabilities that Mr Clayton consumed a
significant amount of cannabis during the morning of 25 January 2016 before attending his
shift.
7. Was Mr Clayton’s dismissal unfair within the meaning of the FW
Act?
[73] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) 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.”
[74] Mr Clayton was dismissed, the employer is not a small business within the meaning of
the FW Act, and the concept of a genuine redundancy is not relevant here.
[2016] FWC 4724
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[75] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or
unreasonable.
[76] The FW Act relevantly provides as follows:
“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
(e) if the dismissal is 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.”
[77] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature
of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of
considerations that must, where relevant, be treated as a matter of significance in the decision
making process and weighed up accordingly.
[78] It is convenient therefore to use the various provisions of s.387, with reference to the
relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to
Mr Clayton’s capacity or conduct (including its effect on the safety and welfare of other
employees)
[79] Valid in this context is generally considered to be whether there was a sound,
defensible or well-founded reason for the dismissal. Further, in considering whether a reason
is valid, the requirement should be applied in the practical sphere of the relationship between
an employer and an employee where each has rights, privileges, duties and obligations
conferred and imposed on them. That is, the provisions must be applied in a practical,
[2016] FWC 4724
17
common sense way to ensure that the employer and employee are each treated fairly.27 When
considering whether there has been a valid reason concerning conduct, the Commission must
itself determine whether the alleged conduct actually occurred based upon the evidence and
materials before it.28
[80] The failure to follow a lawful instruction which was reasonable in the circumstances
may provide an employer with a valid reason to terminate an employee's employment.29
[81] Conversely, it has been held that the failure to comply with an unreasonable direction
does not provide a valid reason for the termination of a person's employment. In Izdes v L.G.
Bennett & Co Pty Ltd t/as Alba Industries30 Beazley J also stated:
“In determining whether a refusal to carry out the lawful and reasonable directions of an
employer constitutes a valid reason for termination, it is necessary to have regard to all
the circumstances, including the nature and degree of the employee's conduct.”31
[82] In Woolworths Limited (t/as Safeway) v Cameron Brown32 a Full Bench of the AIRC,
after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach
of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,33 considered when
a failure to abide by a policy of an employer would amount to a valid reason for termination
of employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to
obey a lawful and reasonable direction of the employer sufficient to justify dismissal at
common law will amount to a valid reason for termination of employment within the
meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-
founded.” A failure to comply with a direction to do or refrain from doing something
in compliance with an employer’s policy will not provide a valid reason for
termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or
matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.”34
[83] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,35 Deegan C
determined that:
“Not every breach of a policy will provide a valid reason for termination of
employment. However in circumstances where the policy is both lawful and
reasonable and an employer has stressed the importance of the particular policy to the
business and made it clear to employees that any breach is likely to result in
termination of employment, then an employee who knowingly breaches that policy
will have difficulty making out an argument that there is no valid reason for the
termination.” 36
[84] Mr Clayton contends, in effect, that he did not deliberately breach the policy in that he
was relying upon the indicative detection window advised to him by Coles as part of his
[2016] FWC 4724
18
induction. He further contends that if he was not deliberately in breach of the D&A policy,
there would not be a valid reason for dismissal. In that regard, he relies upon various
decisions of the Commission and its predecessors concerning the approach generally adopted
to misconduct, and in particular, serious misconduct, and to a number of decisions concerning
drug and alcohol policy breaches.
[85] Coles contends, in effect, that Mr Clayton deliberately or recklessly breached the
D&A policy, but in any event, the applicant’s intentions were not relevant when applied to a
policy of the kind in operation at the Coles EPDC.
[86] In Harbour City Ferries Pty Ltd v Toms37 (Toms) the Full Bench was dealing with an
appeal of a decision concerning the breach of a “zero-tolerance” drug and alcohol policy. The
Member at first instance38 found that the employee’s attendance at work having consumed
some marijuana was a valid reason for dismissal but that there were various mitigating factors
that made the dismissal harsh. The Full Bench concluded that in that case, the mitigating
factors were not sufficient to produce that finding.
[87] The Federal Court in subsequently considering the Full Bench decision in that matter39
observed as follows:
“80 The conclusions reached by the Full Bench about the relative importance and
relevance of the questions of impairment and breach of the policy may be seen in the
following two paragraphs which immediately precede the outcome of the appeal:
[27] The lack of any impairment arising from drug use, the absence of a link
between drug use and the accident and the absence of substantial damage to the
Marjorie Jackson are not factors relevant to the ground of misconduct
identified as non-compliance with the Policy. The fact is that Harbour City
required its policy complied with without discussion or variation. As an
employer charged with public safety it does not want to have a discussion
following an accident as to whether or not the level of drug use of one of its
captains was a factor. It does not want to listen to the uninformed in the
broadcasting or other communications industry talk about drug tests
establishing impairment. It does not need to have a discussion with any
relevant insurer, litigant or passenger’s legal representative about those issues.
What it wants is obedience to the policy. Harbour City never wants to have to
have the discussion.
[28] The mitigating factors referred to and relied on by Deputy President
Lawrence are not mitigating factors that address the core issue, which was the
serious misconduct which led to the dismissal of Mr Toms. The core issue, the
valid reason for termination of Mr Tom’s employment was his deliberate
disobedience, as a senior employee, of a significant policy. The Deputy
President does not address Mr Tom’s failure to comply with the Policy. The
only mitigating factor relevant to this issue was the use of marijuana as pain
relief. Consequent upon that explanation is the decision to accept a shift while
aware of the likelihood of being in breach of the Policy.
(Emphasis in original.)
[2016] FWC 4724
19
81 It is clear that “deliberate disobedience” of the respondent’s policy by a senior
employee was viewed by the Full Bench as the central factor to be assessed and not, as
Deputy President Lawrence had found, whether the drug use had a demonstrated or
likely bearing on the incident. At [24] the Full Bench also listed each of the other
matters referred to as taken into account by Deputy President Lawrence. It is apparent
from [28] that the Full Bench determined that they did not provide a reason to
intervene against the application and enforcement of the respondent’s policy.”
[88] I will return the role of mitigating factors later in this decision. For immediate
purposes, the Full Bench decision in Toms confirms that a policy based upon the presumption
that there is to be no illicit drugs present in the employee’s system may be reasonable and
depending upon the circumstances in which that policy is to operate, a breach of that policy is
a significant factor to be considered as to whether there is a valid reason for dismissal.
[89] Further, the deliberate or reckless breach of such a policy is a relevant consideration in
that regard and more generally in an application of this nature.
[90] I am satisfied that it was reasonable for Coles to have a D&A policy of the kind
implemented here and that it was important that it be consistently applied. That is, given the
nature of the workplace, the risks associated with employees potentially working under the
influence of alcohol or illicit drugs, and the absence of an appropriate objective test for
impairment, the policy’s insistence upon not having any (detectable) drugs (or alcohol) in the
system is reasonable and lawful.
[91] It is apparent that Mr Clayton was in breach of the policy given that he did attend for
work in circumstances where a valid non-negative result for THC, subsequently confirmed by
further testing, was found. Further, the importance of not being in breach of the D&A policy
was well understood by him and a strict approach to the policy has been consistently applied
by Coles. This is a matter directly concerning the health and welfare of employees at the
Coles EPDC.
[92] It has also become apparent that Mr Clayton was not honest with Coles during the
meeting on 1 February 2016 about when he had consumed the cannabis. Even on his own
account, it was some five hours later, and on the basis of my findings, much later again.
[93] I am satisfied that there was a valid reason for Mr Clayton’s dismissal related to his
conduct as contemplated by s.387(a) and the relevant authorities. There are however some
factors, such as his understanding about the indicative window of detection and other
circumstances associated with his conduct, that should potentially be further considered more
generally.
Section 387(b) – whether Mr Clayton was notified of the reasons for dismissal
[94] This consideration requires the Commission to assess whether the applicant concerned
was relevantly notified of the reasons leading to the dismissal before that decision was
taken.40
[95] The evident purpose of this consideration is that notification of the valid reason to
terminate must be given to the employee before the decision to terminate the employee is
made and the notification needs to be in explicit and plain and clear terms.
[2016] FWC 4724
20
[96] The substantive reason for dismissal was the view taken by Coles that Mr Clayton had
attended work in breach of the D&A policy. This was the focus of the meeting conducted on
1 February 2016 and Mr Clayton was advised of the reason.
[97] Coles also considered that Mr Clayton had not been honest in relation to the timing of
his consumption of cannabis, and this aspect was not notified to him prior to the dismissal.
This should have been undertaken however I will subsequently consider whether this has led
to unfairness in this case.
Section 387(c) – whether Mr Clayton was given an opportunity to respond to any reason
related to his capacity or conduct
[98] The relevant reasons are those arising from the valid reasons found by the
Commission. This consideration is therefore directly related to the above discussion.
[99] This process contemplated by the FW Act does not necessarily require any formality
and is to be applied in a common sense way to ensure the employee has been treated fairly.
The question becomes whether Mr Clayton was aware of the nature of the employer’s concern
about his conduct and had a full opportunity to respond to these concerns.41
[100] Subject to the further consideration of the issue identified above, Mr Clayton was
given a genuine opportunity to respond to the relevant reason.
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Clayton a
support person
[101] Mr Clayton was accompanied by a support person and assisted by one or more
officials of the SDA in discussions concerning the matters leading to the dismissal.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Clayton–
whether he has been warned about that unsatisfactory performance before the
dismissal.
[102] This consideration relates to performance of the job. Performance in this context
includes the employee’s capacity to do the work, and the diligence and care taken with that
work.42
[103] This consideration does not arise in this matter.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be
likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[104] Coles is a very large employer with access to dedicated human resource expertise.
[2016] FWC 4724
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Section 387(h) - other matters considered to be relevant
[105] Amongst other considerations, the Commission should consider the impact of the
dismissal upon the applicant given all of the circumstances. This includes consideration as to
whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct
found by the Commission.43
[106] A dismissal may, depending upon the overall circumstances, be considered to be harsh
on the applicant employee due to the economic and personal consequences resulting from
being dismissed.44 Mr Clayton lost his employment which he had held since mid-2013 and
there is no indication of any performance or conduct concerns prior to the events leading to
his dismissal. These are relevant factors and must be weighed up in the context of the relevant
misconduct, workplace requirements, and the circumstances of the matter more generally.
[107] I earlier referred to the approach of the Full Bench adopted in Toms. Amongst other
matters, that decision turned on the nature of mitigating circumstances that should be
considered when considering the outcome of a matter where a valid reason for dismissal, and
compliance with procedural fairness requirements had been met.
[108] I have earlier set out an extract from the decision which discussed the nature of
mitigating circumstances relied upon in that case. It is apparent, from that decision, that in the
case of a D&A policy of the type evident here, the absence of any demonstrated link between
consumption and impairment and/or the incident concerned, is not a relevant mitigating
factor. However, the circumstance that led to the consumption of the drug, pain relief in the
case of Toms, was a mitigating factor.
[109] In this case, Mr Clayton consumed the cannabis for a variety of reasons including as a
means of coping with some stress that he felt from attending work and to assist him to sleep.
This is relevant but must be weighed up in the context of a workplace that had a confidential
EAP scheme and a D&A policy which encouraged employees to self-report problems without
the spectre of sanctions. Mr Clayton also consumed cannabis for recreational purposes.
[110] As outlined earlier in this decision, I must also consider the impact of the information
provided to Mr Clayton during the induction process about the indicative window of detection
period. This goes both to the position on intent as advanced by Mr Clayton and potentially to
mitigating circumstances.
[111] The information about the indicative detection window is relevant and information
about how a policy will be applied, or the consequences of a policy provided by an employer
to the employees, will generally be a factor to be weighed into the overall assessment of a
dismissal. There are potential dangers for an employer in providing information about
detection periods to the extent that this information might detract from the zero tolerance
message in the policy itself. It may also, depending upon the overall information actually
provided, be misleading given the variations that exist between individuals and the
unpredictable potency of various illicit drugs. However, in this case, the information about the
detection window does not provide an explanation for the breach of the policy or a major
mitigating factor. The reasons for this are that the information provided to Mr Clayton
included:
[2016] FWC 4724
22
The window of detection was given as an indicative guide only and could not
reasonably be expected to represent a guaranteed safe or reliable withholding
period given the context in which it was provided;
The responsibility upon an employee not to attend for work with any detectable
drugs in their system was clear and understood; and
He was advised that if in doubt, he should not attend for work.
[112] Further, Mr Clayton had consumed cannabis on the morning before his shift and he
could not, in the circumstances, be confident that he would be clear of the drug from his
system when he attended at work. Accordingly, Mr Clayton attended for work where he was,
at best, recklessly indifferent to his potential breach of the D&A policy and any confidence to
the contrary was not soundly based. Based upon my findings, it is also the case that
Mr Clayton consumed within, or at best, very close to, the “safe” indicative detection period
as he understood it to be.
[113] I also note that it would not be reasonable or workable to expect Coles in any given
case connected with the D&A policy to ascertain exactly when the drugs were consumed, or
their quantity and potency, or to attempt to determine whether, in subjective terms, an
employee deliberately intended to breach the policy. This does not mean that an employer in
these situations should not consider, and take into account, the personal circumstances and
explanations provided by the employee concerned. I have done so in determining this matter.
[114] I have also considered the fact that Coles did not provide any notice, or pay in lieu of
notice, to Mr Clayton. The notice of termination of employment provisions in s.117 of the
Act, which also permit payment in lieu of notice of termination, would in accordance with
s.123(1)(b) of the Act not apply if the conduct of the applicant could be described as being
serious misconduct. This term is defined by Regulation 1.07 in the following terms:
“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:
(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;
[2016] FWC 4724
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(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.”
[115] If Mr Clayton had not misled Coles about the actual timing of his consumption of
cannabis, and could more legitimately rely upon the indicative window of detection as part of
the mitigating circumstances, I would have been inclined to the view that the absence of
notice, or pay in lieu, would be a factor strongly supporting a finding that the dismissal was
harsh. However, in this case, whilst the absence of notice is a factor, it is not a decisive one.
[116] In reaching a finding on a dismissal in these circumstances, differential treatment
compared to treatment of other employees may also be taken into account.45 In this case, the
evidence is that the D&A policy has been consistently applied by Coles and there has been no
differential treatment adverse to Mr Clayton.
Conclusion on nature of dismissal
[117] I have weighed all of the factors and circumstances of this application.
[118] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,46 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any
unfair dismissal case. The absence of a valid reason will almost invariably render the
termination unfair. The finding of a valid reason is a very important consideration in
establishing the fairness of a termination. Having found a valid reason for termination
amounting to serious misconduct and compliance with the statutory requirements for
procedural fairness it would only be if significant mitigating factors are present that a
conclusion of harshness is open.”
[119] I need to consider the fact that Coles did not expressly disclose its concerns that
Mr Clayton was not being honest about when he last consumed the cannabis as part of the
disciplinary process. In the circumstances, and given my findings about his actual
consumption, this has not in this case led to unfairness.
[120] The disciplinary process and the dismissal were handled by Coles in a procedurally
fair manner.
[2016] FWC 4724
24
[121] In determining matters in this jurisdiction, the Commission will not stand in the shoes
of the employer and determine what the Commission would do if it was in that position.47
This also means that the employer’s approach to apply the “zero tolerance policy” in a manner
that may not account for any of the particular circumstances of the breach cannot limit the
Commission’s proper consideration of all of the statutory criteria as part of its own
assessment of fairness.
[122] The Commission is directed to ensure a fair go all around. This is reinforced by the
objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:
“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the
manner of deciding on and working out such remedies, are intended to ensure that a
“fair go all round” is accorded to both the employer and employee concerned.”
[123] The situation now facing Mr Clayton is regrettable. However, on balance, having
regard to the provisions of s.387 of the FW Act as applied to the facts and circumstances
evident in this case, I am not persuaded that Mr Clayton’s dismissal was harsh, unjust or
unreasonable.
8. Conclusion
[124] Given my findings, this application must be dismissed and an order48 to that end is
being issued in conjunction with this decision.
COMMISSIONER
Appearances:
D Blairs of Wearing Law, with permission, for Mr Shane Clayton.
W Spargo of Lander and Rogers, with permission, for Coles Group Supply Chain Pty Ltd.
Hearing details:
2016
Adelaide
July 12, 13.
Printed by authority of the Commonwealth Government Printer
WORK COMMISSION AUSTRALIA THE SEAL OF THE FA
[2016] FWC 4724
25
Price code G, PR582794
1 There were some objections upheld to the content of some of the employee’s statements.
2 (1938) 60 CLR 336.
3 (2007) 166 IR 407 at [14] - [16].
4 Statement of Ms Gibbs – Exhibit R2 at par16.
5 Transcript PN746.
6 Exhibit R1.
7 Transcript PN345.
8 Attachment EH5 to the Statement of Ms Hughes – Exhibit R3.
9 Attachment EH 5 to the Statement of Ms Hughes – Exhibit R3.
10 Statement of Ms Hughes – Exhibit R3 at par 30.
11 Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.
12 Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.
13 Transcript PN1398.
14 Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.
15 Exhibit A2.
16 Attachment SAC1 to Statement of Mr Clayton – Exhibit A2 and Attachment EH2 to Statement of Ms Hughes – Exhibit
R3.
17 Transcript PN50-51 and PN100 – 102.
18 Statement of Mr Clayton – Exhibit A1 at par 26.
19 See Statement of Mr Cook – Exhibit A5 at par 19 as an example.
20 Appendix A to the Statement of Dr Pidd – Exhibit A9.
21 Attachment RM1 to the Statement of Dr McCartney – Exhibit R4.
22 Transcript PN962.
23 Transcript PN971.
24 Transcript PN953-957.
25 Browne v Dunn (1894) 6 R 67 as discussed in Cross on Evidence, 5th Edition at [17435] to [17455].
26 Including Briginshaw v Briginshaw.
27 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR
458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB
8868, at par [36].
28 Rail Corporation New South Wales v Vrettos (2008) IR 129 and [27] and Edwards v Giudice (1999) 94 FCR 561.
29 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
30 [1995] IRCA 499 (14 September 1995).
31 Cf: Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J. See also Schreier v Austal Ships
Pty Ltd, Print N9636.
32 PR963023 (26 September 2005) (footnotes omitted).
33 PR928970 (19 March 2003) at [14].
34 Woolworths v Brown at [34].
35 [2009] AIRC 893 (16 October 2009).
36 Lion Nathan at [54].
37 [2015] FWCFB 6249.
38 Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327.
39 Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35.
40 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
41 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
42 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
[2016] FWC 4724
26
43 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
44 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
45 Davis v Collinsville Coal Operations (unreported, AIRCFB, Harrison SDP, McCarthy DP, Redmond C, 19 November
2004) PR953370 [31].
46 [2011] FWAFB 1166.
47 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685; Miller v University of New South Wales (2003) 132
FCR 147 and [13].
48 PR548194.
