1
Fair Work Act 2009
s.394—Unfair dismissal
Sheldon Haigh
v
Platinum Blasting Services Pty Ltd
(U2023/1714)
DEPUTY PRESIDENT LAKE BRISBANE, 26 SEPTEMBER 2023
Application for an unfair dismissal remedy – failure to disclose medicinal cannabis – failure to
comply with drug and alcohol policy – passed drug test – harshness not found – application
dismissed.
[1] Mr Sheldon Haigh (the Applicant) lodged an application with the Fair Work
Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009
(the Act) in relation his dismissal by Platinum Blasting Services Pty Ltd (the Respondent).
[2] A conciliation was held on 29 March 2023. Directions were provided to the parties and
the matter was listed for hearing on 4 July 2023 and 6 July 2023. The Applicant was represented
by Mr Aidan Nash from the Mining and Energy Union and the Respondent sought to be
represented by Mr Dan Chen from NB Lawyers.
[3] There was no objection raised by Mr Nash regarding the Respondent being represented
by Mr Chen at the Hearing. I granted permission for the Respondent to be represented as the
matter would run efficiently considering the complexity of the matter, and no unfairness
between the parties under s596(2) of the Act.
[4] The Applicant nor Respondent dispute the four specified matters before considering the
merits of the matter nor have I identified any issues involving s396 of the Act. I have considered
the evidence provided by the parties and provide my consideration below.
Background
[5] The Applicant was employed with the Respondent from 13 September 2018 as a Mobile
Processing Unit (MPU) Operator. In this role, the Applicant would load, operate and calibrate
a MPU for the preparation and delivery of explosives for use in various mining applications.1
[2023] FWC 2465
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2465
2
[6] The Applicant was initially employed to work at the Peak Downs Coal Mine. On 6
September 2021, Mr John Griffin who was the Operations Superintendent and the Applicant’s
Supervisor received text messages indicating that the Applicant was struggling at work. This
resulted in Mr Griffin contacting the Applicant and then arranged a home visit on 9 September
2021.2
[7] On 9 September 2021, Mr Griffin and the Applicant had a conversation seeking
alternative arrangements as the effect of night-time work arrangements affected the Applicant’s
health. This resulted in BMA having the Applicant’s roster patterns amended.3
[8] Around October 2021, the Applicant stated he had been taking sleeping tablets but was
concerned with possible addiction. The Applicant was informed by his brother-in-law that he
had been prescribed medicinal cannabis and was encouraged by him to try it to address his
medical issues. The Applicant raised the use of medicinal cannabis with Dr Benjamin Chapman
– his family doctor who stated that he could not prescribe medicinal cannabis and it could only
be prescribed by a doctor who was registered with the Federal Government to prescribe
medicinal marijuana. This resulted in the Applicant seeking an appointment with Dr Abdul
Karim Abdul Jabar who was registered to prescribe medicinal cannabis. 4
[9] The Applicant disclosed his use of medicinal cannabis to the Respondent on 11 October
2021 on the basis that he thought it would be ‘best to have it out in the open.’5 This was officially
disclosed on a Worker Capacity Evaluation Form filed by Dr Abdul Jabar on 27 October 2021.6
[10] Around this time, the Respondent stated that BMA had expressed concerns with the
documentation provided by the Applicant regarding his medicinal cannabis prescription. Mr
Shane Phillips who was the General Manager of Operations stated in his witness statement that
there were concerns with the Applicant’s forms specifically; whether the prescribing pharmacy
did not exist, attempts to contact the prescribing pharmacy had been unsuccessful, the
provider’s number for the prescribing doctor was not on the medication label and the
prescription itself was not provided to BMA.7
[11] The Applicant stated that his declaration of medicinal cannabis made him feel
mistreated, distrusted and discriminated. As a result, he sought to seek alternative advice.8
[12] The Applicant stated because he only had until 16 November 2021 until his leave
balance was exhausted, and that he was being discriminated for use of medicinal cannabis that
he had agreed to make an appointment on 24 November 2021 with Dr Chapman to try and stop
using the medicinal cannabis.9
[13] On 23 November 2021, the Respondent was informed by the Applicant that he would
be consulting Dr Chapman to discuss alternatives to control his anxiety and asked for additional
time. The information provided by Dr Chapman on 24 November 2021 indicated that the
[2023] FWC 2465
3
Applicant would cease his usage of medicinal cannabis and the Applicant would be prescribed
fluoxetine. Furthermore, the consideration of his ability to drive and operate on machinery was
considered in the medical advice and that the Applicant was to report back to Dr Chapman
regarding any side effects.
[14] The Applicant stated that he had a subsequent appointment with Dr Chapman on 27
October 2021 stating that Dr Chapman was unable to comment on the use of medicinal cannabis
or certify that he was fit for work. Dr Chapman issued a certificate that the Applicant was not
fit for work for 4 weeks.10
[15] After receiving the fluoxetine, the Applicant stated that he found his health was
suffering without the medicinal cannabis. He states that his wife Jessica Haigh and himself
decided that the Fluoxetine tablets were not helping and that he would be happier and better
mentally by going back to cannabis script while on his weeks off from work. The Applicant
resumed taking medicinal cannabis prescribed by Dr Abdul Karim Abdul Jabar to treat his
anxiety and insomnia. 11
[16] The Applicant stated that he had taken less than the prescribed amount by Dr Abdul
Jabar and had done self-testing to ensure that there was no impairment. The Applicant also
stated he had been told by two different doctors that his use of medicinal cannabis was okay as
long as he passed the drug tests.12
[17] The Applicant worked on a 7-day on, 7-day off roster. On the weeks that he worked, he
was working from 6am to 6pm, Wednesday to Tuesday.13 The Applicant had been taking the
prescribed cannabis on his rostered days off and stated that he would stop using the medication
by 10pm Mondays on his off week leaving a window of 32 hours before the effects of the
medicinal cannabis.14
[18] The Applicant was transferred to the Caval Ridge Mine on 7 February 2022 where he
worked until his termination on 13 February 2023. Both mines are operated by the BHP
Mitsubishi Alliance (BMA).15
Incident on 2 February 2023
[19] On 2 February 2023, there was a safety incident where a hose detached on the MPU
being operated by the Applicant. It was recorded as a near miss due to the possibility of workers
being injured. The Respondent’s client was BMA, who had requested the Applicant be tested
for drugs and alcohol as part of their investigation into the incident. It was during this testing
that the Applicant disclosed to BMA’s onsite paramedic that Tetrahydrocannabinol (THC) may
be present in the test results as he was taking prescription medication containing this
compound.16
[2023] FWC 2465
4
[20] Following the Applicant’s disclosure of cannabis usage to BMA’s onsite paramedic, the
Respondent was notified by BMA that the Applicant’s site access had been removed. The
Respondent stood the Applicant down while the investigation took place.17
[21] On 6 February 2023, the Respondent issued a show cause letter alleging serious
misconduct by stating the Applicant had breached their Alcohol and Other Drug Policy (the
Policy) within his employment contract where he agreed to disclose prescribed medication that
could impar judgment, coordination or alertness to his Manager/Supervisor before commencing
work.18
[22] The Applicant provided a formal response to the show cause letter on 7 February 2023
by sending a letter in response where he states that he had complied with the Policy and that he
was not impaired while at work. 19
[23] On 13 February 2023, the Applicant’s employment was terminated on the basis that he
had breached the Policy for failing to declare a prescription medication via email.20
Applicant’s Submissions
[24] Mr Nash submitted the following reasons of why the Applicant was unfairly dismissed
which have been summarised below.
[25] The Applicant identified the reason for dismissal on the basis that the Applicant failed
to declare a prescription medication in contravention of the Platinum Blasting Services Alcohol
and Other Drug Policy and because of this breach, BMA had removed the Applicant’s site
access and was unable to perform his role at Caval Ridge.21
[26] The Applicant’s main submission was that he did not have an obligation to declare his
prescription on the basis that the medication would not impair him at work.22
[27] The Applicant submits that he had been taking the prescribed cannabis on his rostered
days off and stated that he would stop using the medication by 10pm Mondays on his off week
leaving a window of 32 hours before the effects of the medicinal cannabis and therefore would
not be impaired at work which complied with the policy.23 The Respondent had no authority to
regulate out of hours conduct.24
[28] Furthermore, the Applicant submits that the Respondent had made no attempt to verify
if the Applicant could be impaired at work considering the Applicant had never failed a drug
test and passed on 15 occasions. The Applicant submits that if the Respondent had any
uncertainty in relation to the circumstances of the Applicant’s use of cannabis and required
disclosure, they should have conducted independent research or sent the Applicant for medical
assessment with a qualified doctor. The Applicant was not given a proper opportunity to
respond regarding his impairment during out of work hours conduct.25
[2023] FWC 2465
5
[29] The Applicant submits that it was not reasonably necessary for the Respondent to
collect information about an employee’s prescribed medication unless that medication could
affect the employee’s ability or safety in this job Privacy Act 1988 (Cth). This point was
conceded at Hearing.26
[30] The other argument is that the Applicant’s site access removal at Caval Ridge by BMA
could not be relied on as a valid reason for dismissal in the circumstances of this case as the
Respondent should have considered redeployment to another mine.27
[31] The Applicant submits that if the Commission finds that there was a valid reason for
dismissal, the termination was unfair as the decision was harsh, unjust and unreasonable on the
basis that:
• The Applicant had never failed a drug test.
• The Applicant acted on a reasonable but mistaken interpretation of the policy.
• The Respondent had demonstrated prejudice towards the use of medicinal cannabis.
• The Applicant’s dismissal had a harsh impact which has exacerbated his mental health
issues being diagnosed with severe depression and anxiety in which he is unable to
find work considering his specialised skillset in a small industry.
• The Applicant had no issues with performance, safety or conduct in the past.
• The medicinal cannabis had great benefits on the Applicant’s health. 28
[32] The Applicant seeks reinstatement to his former position, be compensated for any lost
wages and maintain his continuity of services and that the Applicant be compensated for lost
wages as a result of the termination.29
Respondent’s Submissions
[33] Mr Chen submitted the following reasons of why the Applicant was not unfairly
dismissed which has been summarised below.
[34] The Respondent had a valid reason for dismissal on the basis that the Applicant failed
to disclose his usage of prescription cannabis as required by the Policy, along with his failure
to follow the reasonable and lawful directions given in his Medical Management Plan which
was to seek further medical advice if there were side effects with the fluoxetine.30 Furthermore,
the Applicant was well aware of the policy considering his previous disclosure at Peak Downs.31
[35] The Respondent had provided notice and opportunity to respond, with no unreasonable
refusal of a support person.32
[2023] FWC 2465
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[36] The Respondent also submits that its treatment towards the Applicant was always
reasonable management action. In handling their previous investigation in October 2021, the
Applicant had not been treated differently for his use of cannabis compared to any other health
and safety issue, there was genuine doubts regarding the validity of the Applicant’s prescription,
the Respondent was unable to accept the medical information supplied by Dr Jabar due to
ambiguities in the information, and the Applicant’s pay was maintained for a period of time to
facilitate the Respondent’s investigation despite not being ready to work considering concerns
of his impairment.33
[37] Furthermore, there was an incentive to work with the Applicant given that he resided
locally, and it was difficult to make alternative arrangements for others to perform his role. The
process in October 2021 indicated that the Respondent was trying to work with the Applicant.
Furthermore, the allegations of discrimination were unsubstantiated.34
[38] The Respondent seeks for the Application to be dismissed.35
Consideration
[39] Section 387 of the Act provides the criteria and considerations the Commission must
take into account when deciding if the dismissal was harsh, unjust, or unreasonable. As required
by the Act, I consider the following:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[2023] FWC 2465
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(a) valid reason for the dismissal;
[40] It is well established that the factual basis for the reason for dismissal will not of itself
demonstrate the existence of a valid reason.36 It must, as s.387(a) makes clear, be a valid reason
for dismissal. To be a valid reason, the reason for the dismissal should be “sound, defensible or
well founded”37 and should not be “capricious, fanciful, spiteful or prejudiced.”38 As
summarised by Deputy President Asbury in Smith v Bank of Queensland Ltd a “dismissal must
be a justifiable response to the relevant conduct or issue of capacity”.39 The Commission must
consider the entire factual matrix in determining whether an employee’s termination was for a
valid reason.40
[41] The reason for dismissal was that the Applicant had failed to comply with the Drug and
Alcohol Policy. The three contentions raised by the Applicant that there was no valid reason
are:
1. The Applicant did not have an obligation to declare his prescription,
2. The Respondent made no attempt to verify if the Applicant could be impaired at work
and;
3. the Applicant’s removal of site access was not a valid reason for dismissal.
[42] The policy states:
All Platinum Blasting Services employees, visitors and contractors who are required to
take prescription or over the counter medication, that could impair their judgement,
coordination or alertness must inform their immediate Manager/Supervisor before
commencing work. Before taking any medication, either prescribed or over the counter,
advice must be sought from a doctor or pharmacist. 41
[43] A similar requirement is outlined in the Applicants employment contract at clause 27.5:
You must inform Platinum if you are taking any prescribed medicines which may affect
or impair your ability to work safely. In particular, you will inform Platinum of any
potential impairment to your ability to safely operate machinery or other such
equipment.42
[44] The Applicant and Respondent agree that the question of relying on the Policy as a valid
reason of dismissal is dependent on the objective interpretation of ‘could impair’.43
[45] The Applicant argued that his use of medicinal cannabis outside of work hours would
not have impaired him at work if he had not used cannabis within 30 hours of being in the
workplace and therefore did not have an obligation to declare the prescription cannabis to his
employer.44
[2023] FWC 2465
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[46] Upon plain reading of the Policy and the clause in the Applicant’s employment contract,
the Applicant made an incorrect assumption that there was no obligation for him to disclose his
prescription medication if it would not impair him at work.
[47] The phrasing ‘may affect or impair’, ‘of any potential impairment’ and ‘could impair’
in the policy and wording of the employment contract are words that indicate the possibility of
impairment rather than a measurable assessment of impairment. It seeks to address the
possibility of impairment when using the prescribed medication even if that possibility is
minimal or non-existent.
[48] Even though it appears that the Applicant took measures to ensure that there was no
impairment before working on site with the Respondent, the use of the prescription medication
did have a possibility of impairment. Dr Abdul Jabar’s letter on 27 October 2021 indicated that
the Applicant was not to use medicinal cannabis before or during working period which
indicated possible impairment of using cannabis.45
[49] At first instance, the Applicant did disclose his use of medicinal cannabis to the
Respondent on 12 October 2021. It was recorded on BMA’s records that the Applicant had a
prescription of medicinal cannabis (THC 20% - 25% (10mg)).
[50] The primary issue which the Applicant faced was that the Applicant had informed that
Respondent that he was seeking an alternative to using medicinal cannabis, and that he was no
longer using the medicinal cannabis.46
[51] The timeline of the Applicant’s disclosure of his prescription medication is as follows:
[52] On 16 October 2021, the Applicant was informed by Mr Shane Phillips (General
Manager for the Respondent) that the Respondent needed to be made aware of any administered
medication which would be facilitated through a ‘medical management plan’ when the
Applicant had first disclosed the medical cannabis at the Peak Downs mine. At this stage, the
Applicant was put on notice regarding the need to disclose any medication that may cause risk.
[53] On 24 November 2021, the Applicant was prescribed fluoxetine by Dr Benjamin
Chapman which stated that if there were side effects he is to return to his GP for follow-up. Dr
Chapman had completed a worker capacity evaluation where it was stated that Mr Haigh was
to take the medication as prescribed by the treating medical practitioner. The Respondent
records Dr Chapman as his treating medical practitioner, not Dr Abdul Jabar. It was this stage
that it was understood the Applicant’s use of medicinal cannabis had ceased.
[54] On 29 November 2021. The Applicant provided a certificate of clearance. It stated,
‘Please refer to Dr Absul Abdul Jabar’s documentation.’47
[2023] FWC 2465
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[55] On 2 December 2021, Mr Haigh had received an email stating that ‘Any change what
so ever or side effects must be reported to your Supervisor, and Platinum Blasting’
[56] Furthermore, the Applicant had signed a Medical Management Plan which stated he
would strictly adhere to the Medical Management Plan:
Should Sheldon experience any side effect(s) as explained by his treating doctor, he
must immediately report the side effect(s) to his Supervisor and Platinum Blasting and
seek advice from his treating doctor.
Should there be any change to this medication (increase/decrease/frequency of dose
etc), additional medication taken (either prescribed or over the counter), or any other
change that may affect your ability to perform your role/suitability for work, Sheldon
must notify Platinum and his Supervisor immediately. 48
[57] The Respondent had made several attempts to notify the Applicant regarding his
requirement to disclose any prescription medication. The Applicant had a clear obligation to
declare his prescription.
[58] The Applicant had still been using the medically prescribed cannabis without disclosing
this to the Respondent. I do not accept that the Clearance Letter indicated that Mr Haigh was to
use the prescribed cannabis considering the fact that Dr Chapman had filled out the Medical
Management Plan indicating him as the prescribing doctor, not Dr Abdul Jabar with no clear
indication on referring to Dr Jabar’s documentation. It appeared to be a phrase without referring
to any particulars. Dr Chapman did not provide a letter nor had any evidence been provided to
the Commission regarding his acknowledgment of a prescription of medicinal cannabis.
[59] The fact that the Applicant was taking medicinal cannabis out of hours is not accepted,
considering the Applicant was taking medicinal cannabis to deal with his anxiety and insomnia
which are risks that the Respondent had to account for in their workplace. It was evident through
the Medical Management Plan that the Applicant was dealing with these issues and these
medications would affect his performance at work.
[60] The Applicant’s removal of site access was consequential from his failure to declare his
resumed use of medicinal cannabis. It is ancillary to the valid reason that the Applicant did not
disclose his prescription medication.
[61] I do not accept the submission made by the Applicant that the Respondent made no
attempt to verify if the Applicant could be impaired at work and therefore no valid reason for
[2023] FWC 2465
10
dismissal. It was evident that the Respondent did take steps through its medical declaration
process from October 2021 to December 2021.
[62] There was a valid reason for dismissal as the Applicant did not disclose to the
Respondent using medical cannabis to treat his anxiety and insomnia which was a breach of the
Policy and a clause in his employment contract.
(b) Notification of reason and (c) Opportunity to respond:
[63] Although the employer is not required to take any ‘particular steps’ in carrying out the
dismissal, it is commonly accepted practice that notice in explicit and plain and clear terms
must be given regarding termination of an employee.49 It is a statutory protection derived from
the principle of procedural fairness that require employees to be treated fairly before a decision
is made.50
[64] The Applicant raised that the Respondent should have investigated on an objective basis
whether there was a possibility of the Applicant being impaired at work in order to have an
opportunity to respond regarding impairment. I do not accept this submission on the basis that
the Respondent already had a process in place regarding a medical declaration process as
provided above.
[65] I find that the Applicant was notified of the reason for his dismissal through a show
cause letter on 6 February 2023 with the specific provision in the Policy and the Applicant was
provided an opportunity to respond to the allegation on 7 February 2023.
(d) Unreasonable refusal by the employer to allow the Applicant a support person:
[66] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person and is only relevant when an employee asks to have a support person
present in a discussion relating to dismissal and the employer unreasonably refuses.51
[67] The Respondent offered the Applicant an opportunity to have a support person through
a phone meeting on 8 February 2023.
(e) Warning of unsatisfactory performance before the dismissal:
[68] The dismissal was not as a result of poor performance. I do not consider this to be a
relevant factor in determining whether the dismissal was harsh, unjust or unreasonable.
[2023] FWC 2465
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(f) Size of employer’s enterprise, and (g) impact on procedures caused by absence of
dedicated human resources:
[69] The Applicant and Respondent did not raise these factors as an issue of contention in
their submissions. I do not consider this to be a relevant factor in determining whether the
dismissal was harsh, unjust or unreasonable.
(h) any other matters that the FWC considers relevant:
Harshness
(1) Requirements per the Medical Management Plan
[70] It is acknowledged by both parties in their submission that the Applicant’s role was a
‘safety critical role.’ The Applicant states that he took all precautions knowing that safety was
a key part of his role. It was stated in his witness statement that operating an MPU is a one-man
operation.52 The Applicant is dealing with explosives in a mine.
[71] There are concerns that the Applicant had not taken the appropriate actions in dealing
with his diagnosed issues of insomnia and anxiety. Unless Mrs Haigh was a doctor who could
prescribe medication, it is inappropriate for the Applicant not to report the side effects of
fluoxetine to Dr Chapman per his Medical Management Plan where he signed on 2 December
2021 stating that he would report any changes in usage. Furthermore, the Applicant did not
follow the prescribed amount of medicinal cannabis taken as prescribed by Dr Abdul Jabar on
27 October 2021.
[72] Even though the Applicant may have felt improvements with the amount of medicinal
cannabis he was using, and felt that he took measures to prevent impairment, this should have
been disclosed to the Respondent. The Applicant should have received medical evidence or
confirmation that he was no longer taking the fluoxetine, and that he was resuming medicinal
cannabis.
[73] The purpose of the Respondent’s medical management plan is to address the ‘safety
critical’ risk associated with the Applicant’s role along with compliance with work, health and
safety laws. It is why it was necessary for the Applicant to obtain approval from a doctor in
order to obtain a clearance to work when taking prescription medication. The Applicant’s
conduct carried risk when he took actions that were not cleared by a medical professional, nor
was it disclosed that his condition was improving through taking medicinal cannabis. It was
understandable that site access would be removed by BMA as there was concerns with safety
regarding the non-disclosure.
[74] This factor weighs against finding harshness in the dismissal.
[2023] FWC 2465
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(2) Previous experience with disclosure
[75] It was raised in the Applicant’s submissions regarding his distrust arising from
disclosing his medicinal cannabis in Peak Downs along with his misinterpretation of the Policy.
[76] The Applicant alleges that the Respondent had questioned the legitimacy of the
prescription and the doctor who prescribed the medication, that he was refused clearance
regarding the medicinal cannabis, that the Applicant was stood down without pay unless he
sought to change to a different medication, and references made about him by other employees
of his use of cannabis led to him not disclosing the medicinal cannabis at Caval Ridge.
[77] The Respondent states that its treatment towards the Applicant was always reasonable
management actions and the allegations made by the Applicant were made on inexact proofs,
indefinite testimony or indirect inferences.
[78] The Respondent’s apprehension with the Applicant’s choice in doctor was not
unfounded and the Respondent has a right to question medical advice or medical prescriptions
provided by the employee particularly in ‘safety critical’ roles.
[79] Mr Abdul Jabar’s practice was in Caloundra which is about 950 kilometres away from
Moranbah where the Applicant was based. Furthermore, there were questions regarding
concerns with the non-existence of the prescribing pharmacy, being unable to contact the
prescribing pharmacy, the provider number for the prescribing doctor was not on the medication
label, and the prescription itself was unable to be presented to BMA when requested.
[80] The Applicant’s scepticism in the disclosure of prescription medication does not add to
the harshness of his dismissal as the Respondent’s actions appeared to be reasonable
management action.
[81] The Applicant had gone through the process of disclosing prescription medication in the
past and received clear instructions that he was to update the Respondent had there been a
change of medication on 2 December 2021. At this stage, the Applicant was not under any
misapprehension of the Policy. This factor does not support a finding of harshness.
(3) Passing the drug test
[82] Although, the Applicant did not disclose his use of medicinal cannabis, the Applicant
did not fail his drug test, or any other drug test during his course of employment with the
Respondent.
[83] I note in other decisions of the Commission, the Applicant’s failure to disclose the use
of cannabis was also considered with the failure to pass the drug test.53 The Applicant’s passing
of all drug tests indicated that he did make efforts to ensure that he was not impaired at work
[2023] FWC 2465
13
and was responsible in his usage of the medicinal cannabis. It also supported the Applicant’s
argument that there was a very low possibility of impairment with the way he was using the
cannabis.
[84] I find this factor in favour of finding harshness in the dismissal.
Effect of termination
[85] Furthermore, the Applicant stated that the termination has had a severe effect on his
mental health and started to see a psychologist. He states he has not been in a state to look for
other work. The Applicant also raised that he had a specialised skill set in a small industry and
it would be hard to find another job in the mining explosives industry with the drug related
termination on his record. He also states that the dismissal has resulted in his wife having to
return back to work early from maternity leave in order to pay for family expenses.
[86] I find this factor in favour of finding harshness in the dismissal.
Conclusion
[87] If the Applicant did not go through the drug testing process and receive the multiple
requests for disclosure by the Respondent at Peak Downs, I would have accepted an argument
of harshness in the dismissal process considering that the Applicant did not fail any drug test
seeming to indicate he was not impaired at work, undertook the drug test when requested by
BMA and/or the Respondent and the effects of his termination causing some financial hardship.
[88] However, the Applicant’s case of harshness is weakened because the Respondent was
very clear on multiple occasions that any disclosure of prescription medication, including the
medicinal cannabis and fluoxetine was to be updated to the Respondent. This was not a brief
session, or a singular email, but a process which lasted three months between October 2021 –
December 2021 where the Applicant was required to speak with a medical practitioner, fill out
a Medical Management Plan and Worker Capacity evaluation. Multiple emails directed to the
Applicant addressed this. The Applicant did not follow these instructions and did not disclose
his resumption of the medicinal cannabis or that he was not using fluoxetine until he was
required to test on 2 February 2023, which appeared to be in response to a concern that he would
potentially be found to have a positive result of THC in his system.
[89] As a result, I find that Mr Haigh’s dismissal was not harsh, unjust or unreasonable
considering all the factors raised in the matter. Therefore, this application is dismissed. I order
accordingly.
[2023] FWC 2465
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DEPUTY PRESIDENT
Appearances:
A. Nash appearing on behalf of the Applicant from the Mining and Energy Union
D. Chen appearing on behalf of the Respondent from N.B Lawyers
Hearing details:
Brisbane.
4 and 6 July 2023
Hearing via Microsoft Teams
Printed by authority of the Commonwealth Government Printer
PR766544
1 Applicant’s Outline of Submissions 10; Respondent’s Outline of Submissions 4
2 Respondent’s Outline of Submissions 4, 5.
3 Ibid 5
4 Witness Statement of Sheldon Haigh 11 – 19.
5 Ibid.
6 Ibid 29.
7 Respondent’s Outline of Submissions 9.
8 Applicant’s Outline of Submissions 22 – 24.
9 Ibid.
10 Witness Statement of Sheldon Haigh 36 – 44.
11 Ibid 49 – 50.
12 Ibid 56.
13 Ibid 9.
14 Ibid 51 – 56.
15 Applicant’s Outline of Submissions 8.
16 Applicant’s Outline of Submissions 32; Respondent’s Outline of Submissions 20.
17 Respondent’s Outline of Submissions 20.
18 Ibid 22; Applicant’s Outline of Submissions 35.
19 Applicant’s Outline of Submissions 36.
WORK MISSION THE FAIR THE SEA
[2023] FWC 2465
15
20 Ibid 38.
21 Ibid 51.
22 Ibid 53 – 64.
23 Ibid 62.
24 Ibid 64.
25 Ibid 65 – 67.
26 Ibid 53.
27 Ibid 68 -74.
28 Ibid 86 – 91.
29 Ibid 92 – 99.
30 Respondent’s Outline of Submissions 25 – 43.
31 Ibid.
32 Ibid 44 – 51.
33 Ibid 54.
34 Ibid 57.- 59
35 Ibid 64 – 66.
36 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009.
37 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
38 Ibid.
39 [2021] FWC 4 at 118.
40 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185,
[46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413
41 Show Cause Letter dated 6 February 2023.
42 Ibid.
43 Respondents Outline of Submissions 34; Applicant’s Submissions in Reply, 9.
44 Applicant’s Outline of Submissions 10.
45 Witness Statement of Sheldon Haigh, Attachment SH-4.
46 Witness Statement of Shane Phillips, Exhibit C-E.
47 Witness Statement of Sheldon Haigh, Attachment SH-6.
48 Witness Statement of Shane Phillips, Exhibit F.
49 Chubb Security Australia Pty Ltd v Thomas (2000) AIRCFB at [41] Print S2679 (McIntyre VP, Marsh SDP and Larkin C);
Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C); Previsic v Australian
Quarantine Inspection Services, Print Q3730 (AIRC, Holmes C, 6 October 1998). The principles still apply to the
provisions of s.389(b) and (c) of the Fair Work Act 2009 (Cth), see William Eskander v Visy Board Pty Ltd [2021] FWC
3122 (Harper-Greenwell C) upheld in [2021] FWCFB 6036.
50 Crozier v Palazzo Corporation Pty Ltd [2000] 98 IR 137 at 73 (Ross VP, Acton SDP and Cribb C).
51 Explanatory Memorandum to Fair Work Bill 2008 at para. 1542
52 Witness Statement of Sheldon Haigh 8 -10.
53 Sydney Trains v Hilder[2020] FWCFB 1373 at [5]; Hancock v DP World Brisbane Pty Ltd [2022] FWCFB 142 at [6];
Guorgi v Transdev Queensland Pty Ltd [2019] FWCFB 898 at [4].
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc3009.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4185.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3122.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc3122.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb6036.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2020fwcfb1373.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwcfb142.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2019fwcfb898.htm
