1
Fair Work Act 2009
s.394—Unfair dismissal
Colin Wright
v
AGL Loy Yang Pty Ltd
(U2015/12039)
VICE PRESIDENT WATSON MELBOURNE, 11 MAY 2016
Application for relief from unfair dismissal – whether alleged conduct occurred – parties
agreed on key factual dispute that will determine the application – Fair Work Act 2009, s.394.
Introduction
[1] This decision concerns an application for an unfair dismissal remedy made under
s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Colin Wright in
relation to the termination of his employment with AGL Loy Yang Pty Ltd (AGL).
[2] The matter proceeded by way of determinative conference on 1 March 2016. Mr M
Harding of counsel appeared on behalf of Mr Wright and Mr D Williams of counsel appeared
on behalf of AGL.
[3] At the determinative conference statements from the following persons were admitted
into evidence:
Mr Colin Wright
Mr Ernest John Gilpin, Mr Wright’s Alcoholics Anonymous sponsor
Mr Olaf Drummer, Qualified Forensic Pharmacologist and Toxicologist
Mr Neil Waterhouse, Shift Manager on D roster, AGL Loy Yang Pty Ltd
Mr Nigel Browne, Head of Mine, AGL Loy Yang Mine
Mr Daniel Nelson, People & Culture Business Partner, AGL Loy Yang Pty Ltd
Mr Nick Demetrious, Head of Security and Emergency Management of AGL
enterprises within Australia
Mr Tim Murnane, Mine Production Manager, AGL Loy Yang mine
[2016] FWC 1941 [Note: An appeal pursuant to s.604 (C2016/1269) was
lodged against this decision - refer to Full Bench decision dated 2 August
2016 [[2016] FWCFB 4818] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB4818.htm
[2016] FWC 1941
2
[4] Mr Wright, Mr Nelson, Mr Demetrious and Mr Murnane were cross-examined.
Constable David Ledgar, who was part of the police team investigating the accident involving
Mr Wright on 27 August 2015, gave oral evidence and was cross-examined.
[5] At the conference the parties advised that had reached an agreement in relation to the
key issue to be resolved and the implications of the outcome of that factual dispute for Mr
Wright’s application. The parties agree that the key question for the Commission to determine
is whether Mr Wright consumed synthetic cannabis prior to, or during, his journey from work
on 27 August 2015, following the completion of his shift on that morning. Mr Wright has
conceded that if this question is answered in the affirmative, his application must fail. AGL
has conceded that if the question is answered in the negative, there would be no impediment
to Mr Wright returning to work.
Background
[6] Mr Wright was employed by AGL as a Level 8 Mine Operator at Loy Yang, a power
station and coal mine in the Latrobe Valley. He had been in that employment since August
2012 when AGL became the operator of Loy Yang A. However, at the time of the dismissal
he had been continuously employed at the power station and coal mine by various operators
of Loy Yang A for 30 years.
[7] Mr Wright’s duties included the operation of large mining plant including dredgers,
bulldozers, stackers and conveyor systems. Further duties also included the operation of the
control centre, the isolation and ‘making safe’ of plant and conducting inspections and
reporting on issues.
[8] When performing his duties, Mr Wright was required to follow lawful and reasonable
directions given to him by AGL and comply with AGL’s Code of Conduct, Alcohol and
Other Drugs Management Policy and other policies. AGL expects that employees attending
for and performing safety critical work are free from the consumption of alcohol and/or drugs
so as to ensure that their capacity to safely perform their role is not affected.
[9] Mr Wright was dismissed from his employment on 17 September 2015. AGL
terminated Mr Wright’s employment following an investigation and show cause process
concerning an incident whereby AGL determined that Mr Wright had used synthetic cannabis
in the car park prior to leaving work on the morning of 27 August 2015. The use of synthetic
cannabis on 27 August 2015 is disputed by Mr Wright.
[10] Evidence was given concerning previous incidents involving Mr Wright’s use of
synthetic drugs in the workplace, including on 28 March 2013 and 8 January 2015.
[11] On 28 March 2013 Mr Wright was observed in a severely impaired state by
employees. He started to hallucinate and felt convulsions and was unable to speak. During the
investigation that followed, Mr Wright advised that this was as a result of a bad reaction to the
synthetic substance combined with the consumption of prescription medication. No formal
disciplinary procedures were implemented, however AGL advised Mr Wright that it was
unacceptable to be at work while affected by an incapacitating drug.
[2016] FWC 1941
3
[12] On 8 January 2015 Mr Waterhouse found Mr Wright in the toilet holding a smoking
device, a water bong. Mr Wright accepts that he was smoking synthetic cannabis with the
bong. As a result of this incident, AGL issued a final written warning to Mr Wright on 29
January 2015. The letter indicated that Mr Wright was required to complete a residential drug
and alcohol rehabilitation program for a minimum of 10 weeks. It was stipulated that Mr
Wright would meet the costs of the rehabilitation program, however AGL ended up paying for
the majority of the costs.
[13] After Mr Wright completed the rehabilitation program a return to work plan was
prepared. Mr Wright signed this return to work plan, acknowledging that failure to adhere to
the requirements of the plan may result in the termination of his employment.
[14] Mr Wright was involved in a car accident on the morning of 27 August 2015 after
concluding a night shift.
[15] On the morning of 27 August 2015, Mr Demetrios received a telephone call from
Constable Christensen from the Traralgon Police Station. Constable Christensen told Mr
Demetrios that police had attended the scene of the accident and that Mr Wright was the
driver of a vehicle which drove through the front of three houses. Constable Christiansen
advised that Mr Wright told the police that he finished work and decided to smoke a synthetic
substance before driving home.
[16] AGL commenced a show cause process in which Mr Wright was required to show
cause as to why his employment should not be terminated because of this incident. At the
conclusion of the process AGL determined that Mr Wright’s employment would be
terminated on 17 September 2015.
[17] The decision to terminate was based on a belief that Mr Wright had consumed
synthetic cannabis prior to or during his journey from work and the clear serious safety
implications of such behaviour at or near the Loy Yang mine and power station.
Did Mr Wright consume synthetic cannabis prior to, or during, his journey from work
on 27 August 2015?
[18] Mr Wright gave evidence that on 27 August 2015 he worked a 12 hour night shift that
finished at about 6am. He says that it was a difficult shift. Near the start of the shift he was
driving down into the mine with his shift partner, Mr Peter Hoeben, when Mr Hoeben passed
out while sitting next to him. Mr Wright could not get a response from him. Mr Wright
arranged for medical assistance and resumed his work after the ambulance arrived.
[19] Mr Wright said that he remembers feeling tired by the end of the shift. He believes this
was due to a combination of the stressful events concerning Mr Hoeben and the fact that he
had only recently returned to working night shifts.
[20] Mr Wright stated that when he arrived in the car park, he went directly to his car, got
in and drove off.
[2016] FWC 1941
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[21] Mr Wright recalls driving out of the Loy Yang car park into Bartons Lane. He stated
that on this occasion, he did not use his normal route home as he had scheduled his car for a
service that day and was taking it in to meet that appointment.
[22] Mr Wright recalls that not long after he passed his usual turn off the weather
deteriorated. The road was very wet and visibility was poor.
[23] Mr Wright said that he is aware that at the end of Bartons Lane there is a roundabout
that joins Bartons Lane to Whittaker Road, on the outskirts of Traralgon. Mr Wright’s
evidence is that on the morning of 27 August 2015, he has no recollection of seeing the
roundabout or taking any action to slow his car. He now believes that he went through the
roundabout and then ploughed into the yards of the two closest houses, going through their
fences as he did so. He then hit a verandah, causing the roof to collapse and kept going until
he hit another fence. This belief is based on what he saw when he returned the next day to
view the damage.
[24] Mr Wright’s account is that he has a vague recollection of seeing people milling about
him at a time that he believes must have been after the accident. He remembers seeing people
in uniforms but cannot recall whether they were police, ambulance or other emergency
personnel.
[25] Mr Wright has no recollection of having a conversation with anyone at the scene of
the accident. If he did speak to someone, he does not know what he said. Specifically, Mr
Wright gave evidence that he could not recall any conversation with a police officer in which
the police officer asked whether he had taken any substances, and he cannot recall telling the
police officer that he had smoked synthetic marijuana.
[26] Mr Wright recalls being in an ambulance, but not being placed in it. He recalls being
at a hospital, which he now knows to be Latrobe Regional Hospital. Mr Wright gave evidence
that sometime later that morning he became coherent and conscious of his surroundings and
observed his wife having a conversation with a doctor. The doctor told his wife that he had
either passed out or fallen asleep at the wheel. Mr Wright said that he remained in hospital
until about midday on 27 August 2015. The doctor’s comments to his wife remain the only
explanation he has been given for the accident of 27 August 2015.
[27] Mr Wright maintains that he did not use synthetic cannabis before he drove his car that
morning or during the journey. Mr Wright says he has never before had a car accident in
which he cannot recall the events, and he has never passed out. He says that passing out is not
a feature of synthetic cannabis when he has used it. What he has experienced is a feeling of
being relaxed, which usually lasts for a short period of no longer than 20 minutes.
[28] Mr Demetrios gave evidence that on the morning of 27 August 2015 he received a
telephone call from Constable Christiansen from the Traralgon Police Station. Constable
Christiansen told him that police had attended the scene of the accident and that Mr Wright
was the driver of a vehicle which drove through the front of three houses. Constable
Christiansen advised that Mr Wright told the police that he finished work and decided to have
a smoke of a synthetic substance before driving home.
[2016] FWC 1941
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[29] The police officer referred to by Constable Christiansen is Constable Ledgar. The
notes taken by Constable Ledgar, recorded shortly after Mr Wright was taken away from the
scene of the accident by an ambulance, state the following:
“On police attending driver still in v[ehicle] pressing accelerator. I turned v[ehicle] of[f]
and took keys and door Male [indistinct] breathing appear[ed] substance effected (sic)
Head continually turning left right when speaking [indistinct] slow to respond and eyes
wide open but appear not to be able to focus. Slightly blood shot, little to no blinking.
Male stated just finished work after 12 hour shift. Stated had smoke[d] some synthetic
cannabis... Male ability to speak diminished.”
[30] Constable Ledgar gave the following evidence-in-chief in respect of his observations
of Mr Wright:
“…Now, Constable Ledgar, are you able to recall your observations of the occupant,
who is Mr Wright, when you first arrived on the scene?---When I first arrived at the
scene, I was flagged down by two males who were out on the street, who directed me
to where Mr Wright's vehicle was, because it wasn't visible from the street. When I
approached the vehicle, he was - or the driver I could see was male and the vehicle was
revving it's engine and I could see the driver moving his arms in the vehicle. I
approached the window, which was half down. I could still see that he was pushing on
the accelerator and he was moving the gearstick from drive to reverse, backwards and
forwards. The car wasn't moving, so I put my hand through the window, turned the
vehicle off and the driver continued to make the same movements, as if he was trying
to drive a vehicle, or get it to move. I then opened the door and tried to speak to the
driver. It was only at that point that he seemed to acknowledge that I was there,
however, when I was asking him questions, or I started to ask him questions in relation
to what his name was and details of what had happened, I wasn't getting any response.
I continued asking those questions and made checks via the radio as to whether an
ambulance was on its way, which it was, and just continued to speak to Mr Wright. He
wasn't very responsive. His head was constantly twitching from left to right, as I was
speaking to him. His eyes were glazed over and they were bloodshot and they were
watery, giving the glassy appearance. During my conversation with him, he would -
eventually I got his name out of him and the address which he gave as being a
Churchill address, date of birth and a telephone number. I asked him if he had taken
anything. Initially I wasn't getting any response to those questions. As I explained to
Mr Wright at the time, ambulance are going to need to know what you've taken
because you're not looking in a good way. He's eventually stated that he'd had
synthetic cannabis and I gave that update over the radio and requested the ambulance
to hurry considering his appearance. He seemed to be getting worse. I was concerned
at that point that he may have been overdosing, so I wanted the ambulance there as
soon as I could.
And just to make sure the record's clear, Constable Ledger, because you're speaking
fairly quickly. What was the substance that he said he had taken?---He stated that he
had taken synthetic cannabis.”
[31] One of the attending police officers photographed an implement which was located in
the centre console of Mr Wright’s vehicle, which was identified by Constable Ledgar as a
smoking pipe.
[2016] FWC 1941
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[32] Mr Wright submits that the Commission cannot be satisfied that the statement Mr
Wright made to Constable Ledgar, that he had ‘smoked some synthetic cannabis’, was a
representation that Mr Wright had consumed drugs on 27 August 2015. Mr Wright submits
that the generality of what was said gives no indication of when, where or how long ago Mr
Wright smoked synthetic cannabis.
[33] Mr Wright submits that further, it should not be inferred that he consumed synthetic
cannabis prior to driving on 27 August 2015 from other evidence, for the following reasons:
There is no evidence of any other occasion after the rehabilitation and suspension to
which Mr Wright was subject following his drug use at work on 8 January 2015 that
he has used synthetic drugs again.
Mr Wright has a disability to his right arm and hand that, on Mr Wright’s evidence,
makes it impossible for him to consume cannabis by smoking whilst driving. There
is no direct evidence that Mr Wright smoked cannabis that day.
Mr Wright’s unchallenged evidence is that on 27 August 2015 he took between 25
and 30 seconds to walk from the mine turnstile to where his car was situated in the
mine car park.
Despite the assertion by Constable Ledgar that the copper tube that he observed in
the driver’s console of Mr Wright’s car on the day of the accident was a smoking
pipe, there is persuasive evidence from Mr Wright to the contrary. This includes that
the photograph of the copper tube does not show the entire tube, and Constable
Ledgar did not ask Mr Wright what it was. Mr Wright gave evidence that the tube is
used as an air tool, and submits that when asked to demonstrate how he might use
the pipe it was quite clear that, given his disability, he could not use it.
On the evidence, the most probable cause of the accident was fatigue, given that it
was established on the evidence that Mr Wright had very recently resumed night
shifts, it had been a difficult shift, and fatigue was one possible cause posited by Mr
Wright’s treating doctor at the hospital, and was accepted as a possible explanation
by Constable Ledgar.
The opinion offered by Constable Ledgar that Mr Wright appeared drug affected on
27 August 2015 when he spoke with Mr Wright at the scene is merely an opinion.
Mr Wright submits there is no expert evidence that excludes the accident as a casue
of Mr Wright’s mental state at the time the statement was made, and no objective
evidence that corroborates the Constable’s opinion that Mr Wright was affected by
drugs. The sample of Mr Wright’s blood taken at the hospital was tested and the
results were negative for deltra-9-tetrahydrocannabinol, as well as other drugs.
The actions of Mr Wright concerning arranging tests for drugs are consistent with
the denials of drug use.
[34] Mr Wright submits that there is no fact capable of supporting an inference of
consumption on the day of the accident that overcomes the absence of direct evidence.
[2016] FWC 1941
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[35] In the alternative, Mr Wright submits that if the Commission is satisfied Mr Wright
did make a relevant admission, it should disregard the statement or give no weight to it.
[36] Mr Wright further submits that the Commission must assess the reliability of what is
said to have been the representation made by Mr Wright about his drug use on 27 August
2015 in the circumstances in which it was made. That is, from the standpoint of someone
whose mental state was abnormal and who made the statement in the immediate aftermath of
a serious car accident.
[37] Mr Wright submits that there is no reliable basis upon which to conclude that Mr
Wright understood what he was being asked by Constable Ledgar, let alone to conclude that
he gave a deliberate and considered response in which he intended to confess to the use of
synthetic cannabis that morning before he commenced driving. It was not the Constable’s
evidence that Mr Wright responded to his questions as if he were consciously answering
them. Despite how Mr Wright appeared to him, the Constable accepted that he had no basis to
conclude that Mr Wright was as a fact: ‘affected by a substance [that] caused him not to have
proper control of the motor vehicle.’
[38] Mr Wright submits that acceptance of either submission above is sufficient to dispose
the case in favour of Mr Wright, so it would be unnecessary for the Commission to decide
whether it accepted Mr Wright’s denials. However, if that were necessary, Mr Wright submits
that his evidence on that subject ought to be accepted by the Commission.
[39] AGL submits that the evidence points to a finding that Mr Wright consumed synthetic
cannabis on the morning of 27 August 2015. AGL submits that regard must be had to the
following:
Mr Wright admitted to Constable Ledgar that he had taken synthetic cannabis prior
to the accident on 27 August 2015 in response to a specific question about what he
had taken.
Mr Wright appeared to Constable Ledgar to be under the influence of an intoxicating
substance at the time he made the admission. Constable Ledgar has had much
experience in observing the demeanour and conduct of people under the influence of
a substance and had a sound basis for his belief.
Constable Ledgar understood the admission to have been truthfully made, and
reported it to Ambulance officers so that they could provide Mr Wright with
appropriate treatment.
The circumstances of the accident are strongly consistent with Mr Wright’s
admission and Constable Ledgar’s independent observations.
The only other explanation for the incident proffered by Mr Wright, that he fell
asleep, is implausible, given that he apparently did not wake up when hitting the
roundabout or at any other time before coming to rest.
Mr Wright has a considerable history of drug use, including synthetic cannabis.
[2016] FWC 1941
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Mr Wright’s admission to Constable Ledgar was against his interest, and it is absurd
to suggest that he would have made a false admission, either deliberately or
carelessly if he had not taken the drug since January 2015.
One of the attending police officers photographed an implement which Constable
Ledgar identified as a pipe, commonly used for smoking substances, in the centre
console of Mr Wright’s vehicle. Mr Wright gave evidence that he was not aware the
photograph had been taken until he received copies of records subpoenaed from
Victoria Police. His subsequent attempt to explain the implement as an air tool,
which he said had subsequently been ‘lost’ in unexplained circumstances, is
implausible.
[40] AGL submits that there are no circumstances which would persuade the Commission
to find Mr Wright’s initial admission should not be accepted, and in those circumstances the
only available finding is that Mr Wright did take synthetic cannabis on 27 August 2015.
[41] The determination of the factual dispute requires an analysis of the evidence before the
Commission. Only Mr Wright knows whether he consumed synthetic cannabis prior to or
during his journey. There are no other witnesses. Mr Wright’s evidence is that he did not, and
has not smoked synthetic cannabis for a considerable period. I am effectively required to
determine whether he should be believed in the evidence he has given in this regard.
[42] A number of aspects of the evidence, and the circumstances of the evidence, suggest
that Mr Wright’s account should not be accepted. These include:
His comment to Constable Ledgar that he smoked synthetic cannabis when questioned
at the accident scene. Although Mr Wright was clearly dazed at the accident scene and
did not readily respond to questions asked of him, when pressed for information about
whether he had taken any substances for the purposes of paramedic attention, he said
that he had taken synthetic cannabis. Although he says that he has no knowledge of
making such a statement I find on the evidence that he did so. As he had also given his
name and address and explained the working of his night shift, I find, in the context of
the police questioning that his answer was referable to the immediate past. There is no
cogent reason why Mr Wright would have said this if it were not true.
The copper smoking pipe found in the vehicle’s centre console at the time of the
accident. A photo of the partially obscured pipe was taken by police at the accident
scene. It was subsequently taken from the vehicle by Mr Wright and his relatives when
they removed possessions from the car. It was not produced at the hearing. Another
pipe, of a different colour and configuration was produced by Mr Wright. He said that
this was a pipe used as an attachment to an air-hose to clean under his lawnmower.
The smoking pipe purchased by AGL’s solicitor appears identical to the one
photographed by the police and identifiably different to the air hose connection
produced by Mr Wright. I find on the evidence that Mr Wright had a smoking pipe of
a type sold for that purpose in the centre console of his vehicle at the time of the
accident.
Observations by Constable Ledgar that Mr Wright appeared under the influence of an
intoxicating substance at the accident scene. Constable Ledgar has experience in
dealing with drug affected persons. The descriptions of Mr Wright’s behaviour at the
[2016] FWC 1941
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accident scene are not consistent with someone who has merely fallen asleep at the
wheel. Either the accident itself, or something else caused him to present in a confused
manner with abnormal physical symptoms. In Constable Ledgar’s view, Mr Wright’s
physical behaviour and his condition were consistent with taking an intoxicating
substance.
Mr Wright’s history of drug taking. Mr Wright had taken drugs at work in the past in
order to deal with work situations. The night shift in question had involved a traumatic
incident.
In an attempt to establish that he had not taken synthetic cannabis Mr Wright did not
obtain a test for the presence of this substance until 8 September 2015, well after the
incident and his discharge from hospital. He was also aware of difficulties in detecting
these substances.
Mr Wright’s evidence regarding the copper smoking pipe. Mr Wright’s failure to
produce the actual pipe, and his evidence about its nature did not appear to me to be
truthful. In my view it appeared that Mr Wright was concocting a story about similar
devices that was designed to limit the significance of the photo taken by the police. He
subsequently told the police that when he did smoke synthetic cannabis it was “just in
joints”. This was not the case when he was found smoking a pipe type device at work
in January 2015. The existence of a smoking pipe in the centre console would
obviously have been seen as suggestive of its recent use and damaging to his denials
of drug use. In my view his evidence had the appearance of an attempted cover up of
the smoking pipe. His incorrect statements to the police and his interest in a finding
that he did not smoke drugs undermine the credibility of his evidence on critical
matters.
[43] In all of the circumstances I find that on the balance of probabilities Mr Wright
smoked synthetic cannabis prior to or during his journey from work on the morning of 27
August 2015. I find that his statements to the police at the accident scene are a reliable record
of the circumstances and that his denials of drug use to AGL and in his evidence before the
Commission should not be accepted.
[44] Given the agreement of the parties that the determination of this issue will essentially
determine the application, I proposed to issue an order dismissing Mr Wright’s unfair
dismissal application.
VICE PRESIDENT
OF THE THE SEAT WORK COMMISSION
[2016] FWC 1941
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Appearances:
Mr M Harding of counsel, with Mr A Kentish on behalf of Mr Wright.
Mr D Williams of counsel, with Mr P Zielinski on behalf of AGL.
Hearing details:
2016.
Melbourne.
1 March.
Final written submissions:
Mr Wright on 18 March, 1 April and 22 April 2016.
AGL on 23 March and 19 April 2016.
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