1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Brayden Stacey
v
Mondelez Australia Pty Ltd
(U2023/12946)
COMMISSIONER LEE MELBOURNE, 29 JULY 2024
Application for an unfair dismissal remedy-dismissal for refusing to undertake a drug and
alcohol test-consideration of application of drug and alcohol policy-satisfied serious
misconduct-procedural fairness afforded-some factors weigh towards unfairness however
dismissal not unfair-application dismissed
Introduction
[1] On 22 December 2023, Mr Brayden Stacey (the Applicant) made an application to the
Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW
Act) for a remedy, alleging that he had been unfairly dismissed from his employment with
Mondelez Australia Pty Ltd T/A Mondelez International (the Respondent). The Applicant was
dismissed with an effective termination date of 1 December 2023. He was dismissed summarily
for refusing to undergo a random alcohol and drug test.
When can the Commission order a remedy for unfair dismissal?
[2] Section 390 of the FW Act provides that the Commission may order a remedy if:
(a) the Commission is satisfied that the Applicant was protected from unfair dismissal
at the time of being dismissed; and
(b) the Applicant has been unfairly dismissed.
[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant
was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the
Applicant was so protected, whether the Applicant has been unfairly dismissed.
When is a person protected from unfair dismissal?
[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if,
at the time of being dismissed:
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AUSTRALIA FairWork Commission
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(a) the person is an employee who has completed a period of employment with his or
her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if
any) worked out in relation to the person in accordance with the regulations,
is less than the high-income threshold.
When has a person been unfairly dismissed?
[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the
Commission 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.
Has the Applicant been dismissed?
[6] A threshold issue to determine is whether the Applicant has been dismissed from their
employment.
[7] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:
(a) the Applicant’s employment with the Respondent has been terminated on the
Respondent’s initiative; or
(b) the Applicant has resigned from their employment but was forced to do so because
of conduct, or a course of conduct, engaged in by the Respondent.
[8] Section 386(2) of the FW Act sets out circumstances where an employee has not been
dismissed, none of which are presently relevant.
[9] There was no dispute, and I find that the Applicant’s employment with the Respondent
terminated at the initiative of the Respondent. I am therefore satisfied that the Applicant has
been dismissed within the meaning of s.386(1) of the FW Act.
Initial matters
[10] Under section 396 of the FW Act, the Commission is obliged to decide the following
matters before considering the merits of the application:
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(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.
Was the application made within the period required?
[11] Section 394(2) requires an application to be made within 21 days after the dismissal
took effect.
[12] It is not in dispute, and I find that the Applicant was dismissed from his employment on
1 December 2023 and made the application on 22 December 2023. I am therefore satisfied that
the application was made within the period required in subsection 394(2).
Was the Applicant protected from unfair dismissal at the time of dismissal?
[13] I have set out above when a person is protected from unfair dismissal.
Minimum employment period
[14] It was not in dispute, and I find that the Respondent is not a small business employer,
having 15 or more employees at the relevant time.
[15] It was not in dispute, and I find that the Applicant was an employee, who commenced
their employment with the Respondent on 26 September 2016 and was dismissed on 1
December 2023, a period in excess of 12 months.
[16] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee
who had completed a period of employment with the Respondent of at least the minimum
employment period.
Application of an enterprise agreement
[17] It was not in dispute, and I find that, at the time of dismissal, the Mondelez Australia
Pty Ltd, Claremont Operations Enterprise Agreement 2023 (the Enterprise Agreement) applied
to the Applicant’s employment.
[18] As the Applicant has completed the minimum employment period and an enterprise
agreement applied to the Applicant in relation to the employment at the time of dismissal, I am
therefore satisfied that, at the time of dismissal, the Applicant was a person protected from
unfair dismissal.
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[19] As mentioned above, I find that the Respondent was not a small business employer
within the meaning of s.23 of the FW Act at the relevant time, as they employed 15 or more
employees (including casual employees employed on a regular and systematic basis).
[20] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as
the Respondent is not a small business employer within the meaning of the FW Act.
Was the dismissal a case of genuine redundancy?
[21] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:
(a) the employer no longer required the person’s job to be performed by anyone because
of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise
agreement that applied to the employment to consult about the redundancy.
[22] It was not in dispute, and I find that the Applicant’s dismissal was not due to the
Respondent no longer requiring the Applicant’s job to be performed by anyone because of
changes in the operational requirements of the Respondent’s enterprise.
[23] I am therefore satisfied that the dismissal was not a case of genuine redundancy.
[24] Having considered each of the initial matters, I am required to consider the merits of the
Applicant’s application.
The hearing
[25] There being contested facts involved, the Commission is obliged by s.397 of the FW
Act to conduct a conference or hold a hearing.
[26] After taking into account the views of the Applicant and the Respondent, I determined
that it was appropriate to hold a hearing for the matter pursuant to s.399 of the FW Act.1 The
hearing was conducted in Hobart on 16 April 2024. Permission was granted to both parties to
be represented by a lawyer. Mr Manfred Ewikowski from Paul Sutherland & Associates
represented the Applicant and Ms Audrey Mills from Dobson Mitchell Allport Lawyers
represented the Respondent. The parties filed closing written submissions subsequent to the
hearing.
Witnesses
[27] The Applicant gave evidence on his own behalf and the following witnesses also gave
evidence on his behalf:
• Ms Natasha Yvette Tewson, machine operator
• Mr Patrick Joseph Schramm, fitter
• Ms Kathleen Georgina Stacey, the Applicant’s aunt and former team leader to the
Applicant
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[28] The following witnesses gave evidence on behalf of the Respondent:
• Ms Amanda Jane McRoy, people lead Claremont & Burnie
• Mr Hayden Peter Lennox, former supervisor to the Applicant
• Ms Caitlin Fiona Kingsley, HR advisor
The Evidence
Background
[29] The Applicant was employed by the Respondent for approximately 7 years at its factory
in Claremont. The factory produces Cadbury chocolates. The Applicant’s role was that of a
confectioner, working in the manufacturing area of the business.
[30] The Applicant was terminated from his employment on 1 December 2023. The reasons
provided by the Respondent for the termination of his employment were: “A failure to follow
a reasonable management direction, a breach of Mondelez Drug & Alcohol Safe Workplace
Policy, as well as breach of the Work Health & Safety Act 2012, section 28, where while at
work a worker must take reasonable care for his or her own health and safety; and take
reasonable care that his or her acts or omissions do not adversely affect the health and safety of
other persons, and that these breaches warrant summary dismissal”2.
[31] It is not in dispute that the Applicant, having been requested at approximately 7:00am
on 12 October 2023 to undergo the alcohol and drug test by the Respondent, sent an SMS to
his supervisor advising him he was leaving the workplace. The Applicant soon after sending
the SMS left the worksite and did not undertake the test.
The events of 12 October 2023
[32] The Applicants’ evidence is that on the evening of 11 October 2023 he smoked
marijuana. His evidence as to his reasons for doing so varied but included, “…smoked a joint
of marijuana to help me sleep”3. He attended work the following day, 12 October and at around
7:00am that day he was advised by his supervisor, Mr Hayden Lennox, that he had been selected
to participate in a random alcohol and drug test.
[33] Shortly after being advised of this requirement, the Applicant sent a SMS to Mr. Lennox
which stated: “gonna have to go home sick, hate to do it. But had a few things I shouldn’t have
last night. I know it’ll come up on the test so [I’ll] be told to go home either way. I feel fine and
capable enough to do my job though, no issues there just know it’ll come back positive”4.
[34] Mr. Lennox replied by SMS to the Applicant: “OK”. After he sent the SMS, the
Applicant went to the ‘smoko hall’ and claims he waited outside for approximately 30 minutes
after sending the SMS5. In his witness statement, the Applicant claims that he understood the
message of “OK” to be an approval for him to leave work without participating in the test6. The
Applicant then left the workplace at around 8:00am and proceeded to his partner’s house on
foot, a journey that took him approximately 90 mins. The Applicant claims that he lost his
phone down the back of the sofa at his partner’s house and believed it to be lost for “a number
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of months”. However, the Applicant maintains that he was contactable by phone until around
noon that day.7
[35] An email was sent by Ms Kingsley to the Applicant later that day in the following terms:
“This letter serves to advise that you are suspended with pay with immediate effect and
are required to attend a meeting with Caitlin Kingsley and Saad Kanno (Area Leader,
Carle) on Monday 16th October2023 at 2:00pm in the Favourites Room.
The purpose of the meeting is to discuss allegations surrounding your actions during
randomised drug and alcohol testing on Thursday 12th October 2023, where more
specifically it is alleged that:
1. When you were advised that you were required to participate in randomised
drug and alcohol testing that you immediately left the site to avoid undertaking
testing.
2. You then sent a text message to your Team Leader (Hayden Lennox) stating
that you would be going home "sick".
3. The text message stated that you had "taken things you shouldn't have" and
that you knew your test would return a positive result.
4. You were at the workplace under the influence of drugs and/or alcohol.
Attached is a copy of the Mondelez International Drug & Alcohol Safe Workplace
Policy and Procedure. You are directed not to discuss or comment on this investigation
with any Mondelez colleagues other than in the course of seeking advice or support from
your support person and/or representative as this matter is confidential. You are entitled
to be accompanied to the meeting by a support person of your choosing.
During this meeting you will have the opportunity to respond to this allegation and to
raise any mitigating factors or matters for us to consider prior to any decisions being
made. The outcome of this investigation will be provided to you formally at the
conclusion of the investigation and may result in disciplinary action including up to
and/or including the termination of your employment in accordance Mondelez
International Policy.
You are advised that you are entitled to be accompanied to the meeting by a support
person of your choosing. If you are unable to meet at the requested time, please notify
me as soon as practicable to arrange a suitable alternative time. I can be contacted on
0425 843 447 or via Caitlin.kingsley@mdlz.com.
I understand that this may be a difficult time for you and take this opportunity to remind
you of the Employee Assistance Program (EAP), which is available to you through
Benestar who provide free of charge, confidential counselling assistance and advice 24
hours, seven days a week on 1300 360 364.”8
mailto:Caitlin.kingsley@mdlz.com
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[36] The Applicant’s evidence is that he saw the email that day, on either his ipad or laptop
computer.9
The Respondent’s drug and alcohol safe workplace policy key elements
[37] The Respondent’s drug and alcohol safe work policy includes the following provisions
that are relevant to the consideration:
“We are committed to:
• providing a safe, healthy and productive workplace for our workers through the
establishment and maintenance of a workplace that is free from hazards and/or risks
arising from the use of drugs and/or alcohol and to ensure our products are safe and
of the highest quality for our consumers. Breaches of this policy may result in
disciplinary action, up to and including termination of employment.
We believe we are all responsible for our health and safety. In particular:
• The use of drugs and/or alcohol becomes a workplace health and safety issue if a
worker’s ability to exercise judgement, coordination, motor control, concentration
and alertness at the workplace is impacted by being under the influence of alcohol
and/or drugs, leading to an increased risk of injury or incidents to themselves or
others at the workplace.
• Workers must ensure they are fit for work at all times and that they are not under the
influence of drugs and/or alcohol when they are at a workplace.
• Workers and visitors must not, at the workplace or in the course of their employment
or engagement by Mondelez:
• attend or remain at a workplace while under the influence of drugs or with a
Breath Alcohol Content (BrAC) of 0.01g/210L or above; or
• sell, consume, use, distribute, store or possess:
• prescription drugs and substances without a valid prescription issued
by a registered Australian medical practitioner specifically for that
individual.
• alcohol, unless required in the course of the worker’s duties with
Mondelez or for the purposes of entertaining with prior approval
from Management; or
• illegal drugs.”10
[38] This aspect of the policy makes clear that there is a zero-tolerance approach to drugs
and alcohol at the workplace. Relevant to the Applicant, the policy prohibits the use of illegal
drugs in the course of an employees’ employment or engagement with the Respondent.
[39] The policy makes clear that the Respondent may conduct drug and alcohol testing, by
urine (pre-employment) oral fluid and/or breath testing in various circumstances, including the
use of random testing.11
[40] The policy sets out the consequences of refusal to test or a failure to comply.
“5.9 Refusal to test
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If an individual refuses to submit to a drug or alcohol test (including a secondary sample
following a non-negative result), the individual may (in the absolute discretion of
Mondelez) be deemed to have produced a confirmed positive result in breach of the
Drug and Alcohol Safe Workplace Policy.
5.10 Failure to comply
Any individual who, without reasonable cause, fails to cooperate in relation to a drug or
alcohol test in accordance with this procedure or refuses to sign or complete any related
documents or labels will be in breach of the Drug and Alcohol Safe Workplace Policy.
Further, any individual who undertakes the following will be in breach of the Drug and
Alcohol Safe Workplace Policy:
• avoids, adulterates or falsifies any breath, urine or oral fluid sample;
• substitutes for another individual or arranges, or is involved, in any such
substitution;
• aids or abets any person in respect of the above matters;
• attempts to do any of the above matters;
• is unable or unwilling to produce a sample within a reasonable time as
determined by the Testing Provider; or
• Fails to declare any relevant medication or prescription medication in
accordance with this procedure.”12
[41] There are various steps that apply in the event an employee returns a non-negative result
for drugs. However, these steps are clearly predicated on the employee having participated in
the test. Under the policy the individual is sent home with pay until confirmatory drug tests are
received. The policy provides that an employee who refuses to be tested can be stood down
with pay pending an investigation into the situation.
[42] The policy also provides for employees to self-declare alcohol and drug dependency.
The policy provides that the company will provide support and assistance to employees who
bring the matter to the notice of their line manager, in the absence of any non-negative or
confirmed positive result. The policy also includes that:
“An employee with an alcohol or drug dependency related issue will not be dismissed
by Mondelez solely because of a genuine request for help in overcoming that
dependency or because of involvement in a medically recognised rehabilitation
program, where there has been no non-negative or confirmed positive result.”13
The purpose of the drug and alcohol policy at Mondelez
[43] Ms McRoy gave evidence that the current policy was introduced in 2019 with the aim
of reducing health and safety risks at the workplace. Ms McRoy gave evidence as to the need
for the drug and alcohol policy associated with the high-risk work environment at Mondelez.
This includes the numerous machines in the workplace, consistent with it being a manufacturing
environment. There are moving conveyer belts which, while guarded, may present a risk of
injury to employees not thinking clearly. There are also chemicals used for cleaning and various
hot surfaces. Chocolate is a slippery substance due to its fat content and awareness is required
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to avoid slips and falls. There are several pedestrian and vehicle interactions at the site,
including large delivery trucks and forklifts. Safety standards are also important as the
Respondent is a food manufacturer to ensure product cleanliness and quality is maintained.14
[44] There was no serious challenge to the evidence of Ms McRoy. The Respondent submits,
and I agree, her evidence provides a sound basis for the Respondent’s implementation of the
drug and alcohol policy including requiring random drug and alcohol testing of employees. It
is an important component of maintaining a safe workplace. A direction to an employee to
comply with the policy, including a random drug and alcohol test would in the ordinary course
of events and, absent some other mitigating factor, be a lawful and reasonable direction.
Evidence as to the Applicant’s knowledge of the Respondent’s drug and alcohol policy
[45] The Applicants’ letter of appointment was tendered (R1). It includes the following text
under the heading of company policies:
“You are required to comply with the company policies, procedures and instructions as
are in place and which may be changed, replaced or amended from time to time by the
Company. However, the Company policies and procedures do not form part of this
contract of employment.
Failure to comply with the Company policies, procedures and instructions may lead to
disciplinary action up to and including termination of employment.”
[46] The Applicant signed that letter of appointment under the final paragraph of the letter
which reads:
“I, Brayden Stacey, understand and agree to the employment conditions as specified in
this letter and am pleased to accept this offer of appointment with Mondelez Australia
Pty. Ltd.”
[47] Ms McRoy gave evidence that the employee records showed that the Applicant had
received training on the Respondent’s drug and alcohol policy on a number of occasions. Ms
McRoy gave evidence that the Applicant completed online induction training on 23 August
2021 and again on 12 December 2022 and had also completed face to face training on the drug
and alcohol procedure on 13 October 202115. The Applicant was asked if he agreed that he
undertook the annual induction training to which he replied, “I think that last one I believe I
done was in 2021, and they’re meant to be yearly”16. I take it from this the Applicant concedes
he had completed the annual induction training during his employment and most recently in
2021. The induction training makes clear that disciplinary action can be taken, including
dismissal for “some serious or repeated type cases”, in the event of a positive test.17
[48] The Applicant contests that he participated in the October 2021 training18. His evidence
was that he did not attend the training on 13 October 2021 as he was not at work at that time.
While there is a document in evidence which is a record of the Applicant’s attendance at that
training, that the Respondent maintains that he signed, the Applicant gave sworn evidence that
this was not his signature.19 The Applicant was cross examined on this evidence. He was put
on notice by counsel for the Respondent that evidence would be led through Ms McRoy that
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the gate records had been checked and they showed the Applicant was in fact at work on 13
October 202120. Despite this, the Applicant doubled down on his version of events, claiming
that he was on holiday21 and that he wasn’t there22. Subsequently, the Applicant’s representative
called for the gate records to be produced. They were produced and tendered (R5). It was only
at that time that the Applicant conceded through his legal representative that he was in fact at
work on the 13 October 2021. The Applicant had clearly been untruthful in his evidence on this
point until presented with evidence he could not refute.
[49] While the Applicant conceded in the circumstances described that he was at the
workplace on 13 October 2021, he did not concede that he undertook the training on that day.
Ms Kingsley gave evidence that was not challenged that when all employee meetings are held,
at which drug and alcohol policy information and training are given, the production is shut
down to enable employees to attend.23As the Applicant concedes he was at the workplace on
13 October 2021, and there was no production it is improbable that the Applicant did not attend
the training. This is particularly so where the training records show that there is a signature next
to his name. As stated above, the Applicant claims that is not his signature on the training
record24. I accept that signature differs somewhat in its pattern from the sample signature
provided25. However, all of the signatures provided are somewhat different. On the Applicant’s
licence for example, the surname Stacey can be made out. However, in other signatures, only
the B is legible, and the rest is a kind of scribble that is not consistent in its pattern amongst the
various signatures. The evidence demonstrates that the Applicant tends to vary his signature
somewhat but does not support a conclusion that the signature on the attendance slip is not his.
[50] Moreover, the Applicant was not a truthful witness and I simply do not believe that he
did not attend the training on 13 October 2021. The Applicant was not a credible witness. His
evidence was often inconsistent and self-serving. On the balance of probabilities, I am satisfied
that the Applicant did attend the training on 13 October 2021.
[51] In any event, as the Respondent has pointed out, the Applicant showed a level of
understanding of the drug and alcohol policy during the interview conducted with Ms Kingsley
as reflected in the notes of that conversation26. This included the following:
“In your own words, can you tell me about your understanding of the Drug and
Alcohol Safe Workplace Policy?
You can’t be on site under the influence.
States you may be randomly tested.”
“Can you tell me why it is important to have this policy in place?
To keep people safe and out of danger.
Are you familiar with your obligations under the Mondelez International Drug
and Alcohol Policy?
To make sure you come to work sober, not in a state that you might hurt someone or
cause injury to someone.”27
[52] The Applicant under cross-examination admitted that prior to October 2023 he was
aware there was an alcohol and drug policy and that he could be requested to undertake a
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random drug test under that policy28, and the Applicant was aware of the purpose and need for
the policy29 and that if he failed the drug test, he knew he would be sent home.30
[53] Further, the Applicant accepts31 that he undertook the online induction training. That
training makes it clear that by refusing to comply with the policy, disciplinary action including
termination of employment can be a consequence.32
[54] The evidence strongly supports a finding that the Applicant was aware of his obligations
under the drug and alcohol policy, and he was aware of the possible consequences, including
termination of employment, of failing to comply with it. He was required, as a term of his
employment agreement, to comply with company policies and procedures and was on notice
that a failure to do so could result in disciplinary action including termination of employment.
[55] Taking into account the evidence as set out above, there are sound reasons associated
with the safety of the workplace for the introduction of the drug and alcohol policy. The
requirement for the Applicant to undertake the random drug test as a component of that policy
was a lawful and reasonable one. However, a challenge to the reasonableness of the requirement
to take the test is that associated with the Applicant’s alleged concern about his privacy,
associated with a privacy breach of employee personal records, although there are other reasons
raised. It is appropriate to deal with those matters at this point.
Reasons advanced by the Applicant for refusing to take the test
[56] The first and I think likely the only honest reason given by the Applicant for refusing
the test and leaving the workplace is the one he put in the SMS to his supervisor, Mr Lennox,
on the day he was selected to do the test. That SMS stated “gonna have to go home sick, hate
to do it. But had a few things I shouldn’t have last night. I know it’ll come up on the test so
[I’ll] be told to go home either way. I feel fine and capable enough to do my job though, no
issues there just know it’ll come back positive”.33 That SMS makes two things clear.
[57] Firstly, that the Applicant was simply informing Mr Lennox that he was going home
sick. The Applicant gave evidence via his witness statement that he understood the SMS reply
of “OK” from Mr Lennox meant that his departure from the workplace had been approved34.
However, the Applicant was clearly not asking permission to be able to go home, it was
something he had decided to do and was simply informing his supervisor of that fact. Indeed
the Applicant confirmed during the hearing that he was not asking permission from Mr Lennox
but rather was telling him what he intended to do.35 Mr Lennox stated that he sent “OK” in reply
just to acknowledge that the person is telling him they’re going home not to deny or grant
permission.36 Consistent with this evidence from Mr Lennox, he then reported the incident to
his manager, Mr Saad Kanno, by phone shortly after receiving the text from the Applicant and
sent a follow up email at 1.57pm on 12 October 2023.37
[58] Secondly, the only reason stated by the Applicant in the SMS that he was leaving the
workplace claiming he was sick and refusing to undertake the test, was because he was certain
that he would fail the drug test. Under cross examination, the Applicant confirmed that this was
the reason he left the workplace and refused the test. The exchange is as follows:
“PN100 So you recall being requested to undertake a drug test in October 2023? Yes.
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PN101 And that request came from your team leader, Hayden Lennox? Yes.
PN102 And is it correct that once being told that, requested that, you then panicked, left
your workstation, and left the building? Yes.
PN103 And that was because you knew you had an illicit or illegal drug, marijuana or
cannabis, in your body when you attended work that morning? Yes.
PN104 And you didn't want to fail the drug test, so you decided to go home,
correct? Yes.”
[59] This evidence is broadly consistent with what the Applicant told the Respondent’s
representatives during the disciplinary interview leading up to the dismissal when he was asked
why he was not willing to remain on site to undergo the test and comply with the drug and
alcohol policy. In response the Applicant stated that if he was tested, he would get sent home
anyway so he may as well just go.38
[60] In response to the show cause letter provided to the Applicant by the Respondent, which
advised him that the Respondent was considering termination of his employment, the Applicant
provided the following reasons for failing to attend the test:
“On the day I chose to leave Site, I panicked as I knew I had smoked some “weed” to
calm me down and help me sleep the night before. I should have taken test, admitted it
right away after about taking weed the evening prior and for that I am very remorseful
and have shown this in the meeting that followed and continue to be remorseful.”39
[61] It is apparent on the evidence that up until the time of the dismissal, the Applicant had
raised the reasons canvassed above as the reasons he failed to undertake the drug test and left
the workplace. No other reason was given.
The alleged privacy concern
[62] While it was not raised at all prior to the dismissal, subsequent to the dismissal, the
Applicant claimed that a reason that he did not want to take the drug test was because he had
concerns about the Respondent’s ability to maintain the privacy of the results. This concern was
related to a recent data breach that had occurred. For reasons that follow, I am not satisfied that
this matter provides a reasonable basis for the Applicant refusing to undertake the drug test and
leaving the premises on the day.
[63] It is not in contest that there was a data breach at the Respondent’s premises. The
evidence was the breach occurred on 31 August 2023. When the breach was reported to the
Respondent, immediate action was taken to remove the information. Remedial action was taken
to remedy the situation and to remove the possibility of recurrence40. Ms McRoy gave evidence
on the day that all employees received a communication essentially identifying that a breach
had occurred, and investigations were taking place. Further information regarding the
investigations and security of information was provided to employees at the Respondent’s all
employee meetings. However, Ms McRoy concedes that these meetings took place after Mr
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Stacey was suspended41. Therefore, the Applicant may not have been aware of the outcome of
these investigations into the privacy breach.
[64] The Applicants’ evidence is that he did not raise the privacy matter during the
investigation or show cause process because Ms Kathleen Stacey, his aunt, told him not to. Ms
Stacey gave evidence to that effect, claiming in turn that Mr Jacob Batt from the Australian
Manufacturing Workers’ Union (AMWU) had advised her to advise the Applicant to not refer
to that issue in the show cause notice. No explanation was given as to why Mr Batt gave that
advice, and he was not called to give evidence. A version of the Applicant’s show cause
response which was said to be an earlier version of the response sent, includes a reference to
the privacy concern. That version42 was attached to the witness statement of the Applicant.
[65] The Applicant was tested on cross examination as to his claim that he did not want to
submit to the test because he was concerned about the privacy breach. The exchange is as
follows:
“PN152 Right, okay. Now, you said that Kathleen Stacey gave you some assistance
with putting together the response to the notice to show cause, is that right? M'mm.
PN153 But prior to that, she wasn't actively involved in supporting you in this process,
was she? No.
PN154 Right, okay. When you texted Hayden Lennox and told him you were going
home, you weren't thinking about any privacy breach at that moment, were you? Yes,
because my team leader, Hayden Lennox, was one of the first ones to be done. And
when he done his drug and alcohol testing, probably 30 minutes after he done it,
everyone knew what he was done for, because it was just on the computer for everyone
to see.
PN155 But the moment when you sent the text, you were worried about failing the drug
test? Yes, then I was worried about the data breach because I didn't want my mother,
Kath, and all that, to know that I was a drug user.
PN156 I want to suggest to you that this idea about the privacy breach was something
which came up later when you were preparing your response, and it didn't enter your
head at the time when you just decided to quickly leave and go home? It definitely did.
PN157 But you didn't include it in your text to Hayden Lennox? Because I didn't feel
like I had to.
PN158 All right, okay. So, you told him, 'The reason that I'm going home is because I
think I'm going to fail the drug test, and you're going to send me home anyway'? Yes.
PN159 But you didn't mention anything else? I didn't feel like I had to.
I want to suggest to you that if it was so serious, you were so concerned about this
privacy breach, why on earth didn't you put it in the text? Because I didn't want anyone
to know I was a drug user.
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PN161 But that doesn't answer the question, I'll say it again. If you were so concerned
about people knowing you were a drug user, why didn't you put it in the text to Hayden
that you were concerned that there'd been a privacy breach previously? Because I felt
like I didn't have to. You know, I couldn't word it in a way where it didn't make me
look like a drug user.
PN162 I want to suggest to you that all of this has come out much later when you've
been preparing your response and trying to think of reasons to keep your job? No.
PN163 It was certainly something that Kathleen helped you with, and suggested you put
into your response, though, wasn't it? It was, yes.”
[66] The Applicant’s responses in this exchange are not plausible. The suggestion that he
could not word the SMS to Mr Lennox in a way that did not make him look like a drug user is
not plausible. Firstly, the message refers to “had a few things I shouldn’t have had last night”
as the reason for not taking a drug and alcohol test. This of course raises the possibility that the
Applicant has taken drugs.
[67] Independently of the SMS, there is no credible reason for the Applicant to not have
raised this issue at all during the investigation and show cause process, but then raise it during
the proceedings. While his aunt has given sworn evidence that she helped him prepare the
wording of his response to the show cause letter43, there is no cogent reason given for her
advising the Applicant in that manner. Further, the reason given by the Applicant as to why he
did not previously raise the privacy concern, that being he did not want his family to know he
was a drug user, had presumably evaporated by the time he completed the show cause notice.
That is because his mother had already attended the meeting on 16 October and was therefore
presumably aware the Applicant’s drug use was the reason for the disciplinary meeting.
Ultimately, if this matter was genuinely of concern to him, he would have raised it at some time
during the process leading to the dismissal. His reasons for not doing so are not credible.
[68] For these reasons, I do not accept that the Applicant had a genuine concern about the
privacy of his data, and this is a matter that he has sought to rely on after the dismissal has
occurred as a way of defending these proceedings.
[69] In any event, even if I am wrong about that and the Applicant had a serious concern
about privacy on the day he was asked to undertake the random test, this would not provide a
sound reason for him to refuse to undertake the test. That is because, while the earlier privacy
breach did occur, the evidence is that it had been rectified. The fact that a data breach did occur
which affected a number of employees, not including the Applicant, and was subsequently
rectified, does not render the direction to undertake a drug and alcohol test an unreasonable or
unlawful one.
The reason the applicant was using marijuana
[70] The Applicant’s evidence as to the reasons and extent of his drug use is somewhat
inconsistent. The Applicant admits that he was using illicit marijuana the night before he was
selected to be randomly tested.
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[71] The Applicant gave a number of reasons for smoking marijuana the night of 11 October
2023. In the meeting with Ms Kingsley on 16 October, the Applicant claimed that he only
smoked on special occasions. When asked if it was a special occasion on 11 October he replied
‘No’, but that he was celebrating going to Queensland to de-stress as his pop has cancer and his
aunty is unwell.44 However he also said that he smoked marijuana on his days off sometimes
but not very often.45 He also stated that he had smoked marijuana on the 11 October to help him
sleep.46
[72] Subsequently in the response to the show cause letter the Applicant included the
following: “I would like to acknowledge that I was a recreational drug user, but with the advent
of random testing on-site I made a conscious effort to reduce my intake to ensure compliance
to the Drug and Alcohol Policy. I have been dealing with Issues and momentarily lapsed and
slipped back into my old ways, but I am demonstrating that I can reform and continue to be an
excellent worker following the Mondelez values.”47
[73] When cross examined about the various reasons given for taking marijuana and the
extent to which he used marijuana, the Applicant’s inconsistent evidence continued.48 The
Applicant accepted that he had given several different reasons as to why he smoked marijuana.49
[74] The evidence from the Applicant as to the extent to which he has used and continues to
use illicit marijuana is also inconsistent. He described himself during the investigation process
as a recreational user of the drug in the past but that he had made “conscious efforts to reduce
[his] intake”50. This clearly indicates that he continues to use marijuana but is working on
reducing the frequency with which he takes it. However, before the Commission he stated that
his taking of marijuana was a “once in a blue moon type thing” and he’s “been pretty much off
it for years”.51
[75] Overall, this evidence from the Applicant, like much of his evidence was inconsistent
and most unsatisfactory. The position would seem to be, based on the Applicant’s evidence that
he is still a user of marijuana though he is using it less often than he has in the past.
The procedure to affect the dismissal
[76] The Respondent undertook a number of steps in the process to affect the dismissal. In
summary the steps taken where as follows.
[77] On 12 October 2023 Ms Kingsley wrote a letter to the Applicant advising he was stood
down with pay pending an investigation. That letter outlined the allegations against him and
provided him with a copy of the policy and procedure. The Applicant confirmed that he received
that email on 12 October. Shortly after she sent the email, Ms Kingsley tried to ring the
Applicant without success.52
[78] A disciplinary meeting was held on 16 October 2023 with Ms Kingsley and Mr Kanno,
the area lead for the Respondent. The Applicant attended the meeting with his mother as a
support person. The interview notes from that meeting were in evidence and Ms Kingsley was
not challenged on cross examination as to the correctness of those notes. The Applicant largely
confirmed the accuracy of the notes during his own cross examination. At the meeting the
Applicant was referred to the employee assistance program.
[2024] FWC 1701
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[79] On 24 October 2023 Ms Kingsley sent a show cause letter to the Applicant stating that
the Respondent had formed the view the Applicant’s actions constituted serious misconduct
and requested the Applicant show cause in writing as to why his employment should not be
terminated.
[80] The Applicant provided a response to the show cause letter.53 The Applicant’s response
to the show cause letter included his thanks to Mondelez for the position he held and the great
training opportunities given to him, that he had not been previously subject to disciplinary
action; acknowledges that he was a recreational drug user who had “…momentarily lapsed and
slipped back into his old ways” but that he was demonstrating he could reform; lists various
mitigating circumstances including the illnesses of his aunt and grandfather and associated
stress and trouble sleeping; that he left the site without completing the test as he panicked as he
knew he smoked weed and indicates that he knows he should have taken the test and that he
was remorseful; that he was willing to undertake any drug and alcohol program the company
felt he needed to attend; undergo rigorous testing and willing to use medication for his sleeping
issues; and that the momentary lapse of judgement does not reflect who he is.
[81] The show cause letter also includes the following: “I was not under the influence or
impaired whilst I was on shift and can promise I will never be in the future, it was just in my
system from the night before”.54
[82] The Applicant was invited to attend a further meeting on 30 October. The Applicant
requested that the meeting be rescheduled and that was agreed to by the Respondent. The
meeting was rescheduled to 30 November. The Respondent submits that this approximately one
month delay was caused by the AMWU lodging a dispute in the Fair work Commission
disputing the interpretation of the drug and alcohol policy. However, the Respondent submits
that dispute was ultimately discontinued with no change to the actual policy or its interpretation.
[83] The Applicant did not attend the meeting on 30 November as he stated that his car had
broken down. The Applicant was in actual fact referencing a relative’s car, as the Applicant has
lost his licence and cannot drive. The Applicant conceded that the company offered him taxi
vouchers to enable him to attend the meeting. However, the Applicant declined the vouchers
because “I just don’t trust the company with that”.55 It is not apparent why the Applicant would
not trust the company who had offered him taxi vouchers for the trip to the meeting and back
home again not to honour that offer.
[84] The meeting was again rescheduled to 1 December given the Applicant’s failure to
attend the meeting on 30 November. Taxi vouchers were again offered. On this occasion the
Applicant advised that he did not wish to attend in person but to be advised of the outcome of
the disciplinary process by email. The Respondent emailed the Applicant to ensure that he had
a support person with him before sending the termination letter by email on 1 December 2023.56
[85] The Applicant submits that there was a lack of procedural fairness because some of the
matters that Ms McRoy took into account when settling on a recommendation to dismiss the
Applicant, were not put to the Applicant. In my view this does not render the procedure an
unfair process. The Respondent does not need to put every element of its thinking before the
Applicant to render the process a fair one. What is required is the Applicant is advised of the
[2024] FWC 1701
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reason or reasons for the termination in explicit terms, plain and clear terms57. The reason or
reasons is the valid reason for dismissal58.
[86] Nor was there a failure of process because the responsible manager did not have a
discussion with the Applicant and get a written response from the Applicant as to reasons for
their refusal. Mr Lennox had in writing, in a text, the Applicant’s reason for a refusal. They
were clear, he expected to fail the test and therefore was “…gonna have to go home sick”.59
[87] Objectively viewed, the Applicant was afforded a fair process in the lead up to the
decision to terminate his employment. He was notified of the valid reason for the dismissal and
given an opportunity to respond to that reason. There was no refusal to have a support person
present.
Should the Respondent have done more to have a discussion with the Applicant on the
day he was selected to be randomly tested
[88] The Applicant submits that the Respondent should have done more on the day of the
random test to have a discussion with the Applicant about the consequences of not taking the
drug test. The position of the Respondent is that this was not possible given the Applicant
simply left the workplace. In my view, it is self-evident that there was little opportunity for the
Respondent to counsel him in the circumstances as he simply left. In any event, I don’t agree
the Respondent bore some responsibility for the Applicant’s decision to evade the test and leave
the workplace. This is simply blame shifting on the part of the Applicant. The Applicant had
been directed to attend a random test. It was his responsibility to comply with that request. I
don’t accept that the Respondent was expected to pursue him. The evidence on this matter does
not assist the Applicant's case.
The discretion for management to deem the failure to test as a positive result
[89] The Respondent points out that the drug and alcohol guidelines for managers provides
a discretion for management to deem a refusal to test as a positive test.60 The Applicant
questions why the Respondent exercised the discretion and submits that they should not have
done so in the circumstances of this case. It’s possible in some circumstances it would not be
appropriate to exercise the discretion to deem a refusal to test as demonstrating a positive result.
However, it seems to me that in circumstances where the Applicant has admitted to taking illicit
drugs and as a direct result of that doesn’t expect to pass the drug test then there is no apparent
reason why the Respondent should not exercise discretion in the circumstances, to determine
that the Applicant tested positive.
Evidence as to impairment
[90] The Applicant as part of his case sought to argue that he was not impaired by the use of
marijuana on the day in question. In support of this claim, an article61 was submitted by the
Applicant which considers levels of impairment as a result of cannabis use. The Respondent
objected to the article being admitted noting that it appeared to be authored by a company that
produces medicinal THC. While I decided on balance to allow it to be admitted.62 , the article
is of limited probative value. Firstly, there was no opportunity for the Respondent to cross
examine the authors of the report. In any event the report claims that its findings were “…the
[2024] FWC 1701
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exact duration of impairment depends on the dose of THC, whether the THC is inhaled or taken
orally, whether the cannabis user is regular or occasional and the demands of the task being
undertaken while intoxicated.”63 It is not apparent how this article assists the Applicant’s case.
The Applicant was smoking illicit marijuana the strength of which is unknown. The Applicant
sourced the marijuana through a member of his girlfriend’s family who gave it to him and his
girlfriend64. The Applicant does not provide any evidence as to how the findings made in the
study relate to his particular circumstances. The article provided does not assist the Applicant’s
case.
[91] The Applicant nevertheless had his own rather uninformed views about his level of
impairment. This was first given expression in his SMS to his supervisor where he stated, “…I
feel fine and capable enough to do my job though”.65 While the Applicant is in a position to
state how he feels, he is not in a position to determine his level of impairment. He had no idea
of the extent of THC in his blood stream and the level of consequent impairment. As he told
Ms Kingsley, he had heard that marijuana can stay in one’s system for a long time but “wouldn’t
have a clue”.66 Ultimately, the level of THC in the blood stream of the Applicant on the day in
question is unknown. No test was taken and there is no data.
Consistency of application
[92] The Applicant submitted that the Respondent had been inconsistent in its application of
its drug policy in the way in which it had dealt with other employees who had refused to test.
However, the evidence is that one other employee who refused to test was also terminated.67
Two other employees who did test and tested positive for drugs were also terminated. The
evidence was that those employees, before being tested, admitted that they had smoked
marijuana. However, both tested positive for the use of methylamphetamines. Each case will
turn on its own facts, and I do not have evidence as to all of the circumstances pertaining to the
other three employees. However, I'm not satisfied the way other employees were dealt with is
evidence of inconsistency in the application of the drug and alcohol policy.
[93] There was also evidence led that the Respondent had not been consistent in requiring
employees to undertake the random test. Ms Tewson gave evidence that an employee had
recently not been released for testing on the grounds that they were required to keep the plant
running. Her evidence was as follows:
“22) Over the next few weeks, I investigated this incident and found that:
a) the relevant Team Leader escalated a request for 3 operators to attend Tests
to their Area Lead;
b) the safety officer rang the Area Lead at least twice to request that all 3
operators attend testing;
c) the Area Lead only released 2 operators to attend testing;
d) the Area Lead refused to release the third operator on the basis that they were
required to keep the plant running; and
[2024] FWC 1701
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e) it is testing procedure to allow 30 minutes for each test to occur which would
not have resulted in all 3 operators being away from the plant at the same time.”68
[94] However, the evidence of Ms McRoy was that she investigated the claim made by Ms
Tewson. Ms McRoy sought the names of the individuals referred to by Ms Tewson but Ms
Tewson would not or could not supply the names. In any event, Ms McRoy’s evidence is that
she spoke to the safety department, and they advised her that everyone they requested to be sent
for testing was sent for testing69. I see no reason to doubt that evidence. Even if it were true that
this event occurred, this was an issue with management prioritising the operation of the plant
over the requirement of the safety department to have an employee present for a test. It was not
a case of an individual employee simply refusing a test by means of leaving the workplace of
their own accord.70
[95] I note for completeness that there was reference to the AMWU’s purported
interpretation of the drug and alcohol policy involving “three strikes”. This is referred to in a
SMS exchange.71 However, there is nothing in the drug and alcohol policy or any other
document brought to my attention that indicates that “three strikes” under the policy is a feature
of the drug and alcohol policy. There is no evidence that the Respondent has ever represented
the drug and alcohol policy as requiring three strikes, while it is not clear what three strikes
might mean, I assume it is suggesting that three transgressions are required before there is
disciplinary action. In any event, the Applicant did not at any stage in the lead up to the
dismissal indicate that his understanding of the drug and alcohol policy was that it involved
three strikes.
Level of insight
[96] There are aspects of the Applicant’s evidence that show some level of insight. In
particular his response to the show cause notice shows, some concessions as to his drug taking
and an expressed willingness to reform. However, the Applicant has also sought to minimise
his own responsibility and shift responsibility for what has occurred to the Respondent. The
Applicant complains that it was the Respondent’s responsibility to do more to contact him or
counsel him on the day. This was part of many attempts of the Applicant to minimise his own
culpability for what he did. The Applicant has sought to create doubt over his knowledge of the
drug and alcohol policy by being dishonest about attending training and falsely claiming he was
not at work on the day of the training. He has sought to argue, without any empirical basis to
do so, that he was not impaired by marijuana on the day in question when the true position is
that neither the Applicant nor the Respondent has any idea as to what level of THC was in his
blood stream and what impairment he was suffering.
[97] I accept that the Applicant is honest when he says he panicked when he was selected to
do the random test. He panicked because he knew he would fail the test. I am satisfied he also
knew, despite his protestations otherwise, that there were serious consequences for his
employment if he failed the test, including termination of employment. He knew that because
he had undertaken the training in the drug and alcohol policy. He then made a conscious and
deliberate decision to avoid being tested and then doubled down on that very foolish decision.
He could have changed his mind while he was waiting in the smoko hall for 30 mins, thought
better of his actions and returned to the workplace to be tested. He could have changed his mind
[2024] FWC 1701
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while on the 90-minute walk to his girlfriend’s house or even after he arrived there but, he did
not.
Was the dismissal harsh, unjust or unreasonable?
[98] Section 387 of the FW Act provides that, in considering whether it is satisfied that a
dismissal was harsh, unjust or unreasonable, the Commission must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or
conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the
capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support
person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the
person had been warned about that unsatisfactory performance before the dismissal;
and
(f) the degree to which the size of the employer’s enterprise would be likely to impact
on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management
specialists or expertise in the enterprise would be likely to impact on the procedures
followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[99] I am required to consider each of these criteria, to the extent they are relevant to the
factual circumstances before me.72 I set out my consideration of each below.
Was there a valid reason for the dismissal related to the Applicant’s capacity or
conduct?
[100] In order to be a valid reason, the reason for the dismissal should be “sound, defensible
or well founded”73 and should not be “capricious, fanciful, spiteful or prejudiced.”74 However,
the Commission will not stand in the shoes of the employer and determine what the Commission
would do if it was in the position of the employer.75
[101] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied
that the conduct occurred and justified termination.76 “The question of whether the alleged
conduct took place and what it involved is to be determined by the Commission on the basis of
the evidence in the proceedings before it. The test is not whether the employer believed, on
[2024] FWC 1701
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reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which
resulted in termination.”77
[102] As set out above I am satisfied on the evidence that the Applicant engaged in serious
misconduct. The Respondent’s drug and alcohol policy is necessary given the high-risk
environment in which the Applicant worked. It is also reasonable that random drug and alcohol
tests are a feature of that policy, and it is reasonable to expect that employees who are requested
to undertake a random test, absent some compelling reason as to why they cannot or will not
submit to the test, comply with that request. There are no compelling reasons here.
[103] The Applicant refused the test because he knew, or assumed, that he would fail it. I don’t
accept that the Applicants’ alleged privacy concern was the reason he did not want to take the
test. However, even if that was a concern, despite it never being articulated to the Respondent
prior to the dismissal, in all of the circumstances, that did not render the direction to attend the
random test unlawful or unreasonable. The Applicant failed to follow a lawful and reasonable
direction to attend the random drug test. His conduct in doing so was wilful and deliberate.
Serious misconduct includes a refusal to carry out lawful and reasonable instructions consistent
with the employment contract78. I am satisfied the Applicant’s action in refusing to undertake
the test constituted serious misconduct. That is a sound, defensible and valid reason for
dismissal.
[104] The Applicant attended the workplace under the assumption that he had detectable
levels of THC in his blood stream. In so doing, he clearly breached the Respondent’s drug and
alcohol policy by attending work under the influence of drugs. In doing so, his actions
jeopardised the safety of himself and others in the workplace. As set out earlier, the Applicant’s
claims that he was not impaired are not accepted. He was not in a position to determine his level
of impairment. There is certainly a risk that he was impaired. That is why there is zero tolerance
to drugs in the Respondent’s workplace. I am satisfied the Applicant’s conduct jeopardised the
health and safety of himself and others in the workplace. It was conduct that caused serious risk
to the health and safety of a person.79.
[105] The valid reasons for dismissal weighs against a finding the dismissal was unfair.
[106] I note at this point, I have not determined that the Applicant was in breach of section 28
of the Work Health and Safety Act 2012. The Respondent simply did not provide satisfactory
evidence that this occurred. Nor was that proposition put to the Applicant in the show cause
notice and I have not had regard to it.
Was the Applicant notified of the valid reason?
[107] Notification of a valid reason for termination must be given to an employee protected
from unfair dismissal before the decision is made to terminate their employment,80 and in
explicit81 and plain and clear terms.82
[108] The Applicant was notified of the reason for the dismissal in clear terms as set out above.
The show cause letter made clear that the Respondent had found in its investigation that the
Applicant had refused to participate in drug and alcohol testing and was deemed to have
produced a confirmed positive result. Further, that he had breached the Respondent’s drug and
[2024] FWC 1701
22
alcohol policy and jeopardized the health and safety of himself and others in the workplace. As
discussed earlier, every consideration taken into account by a decision maker as to whether to
affect a dismissal does not need to be presented to the employee. It is notification of the valid
reason or reasons that is relevant. He was clearly notified of the valid reasons for dismissal prior
to the dismissal. Consideration of this factor weighs against a finding the dismissal was unfair.
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[109] An employee protected from unfair dismissal should be provided with an opportunity
to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity
to respond is to be provided before a decision is taken to terminate the employee’s
employment.83
[110] The opportunity to respond does not require formality and this factor is to be applied in
a common-sense way to ensure the employee is treated fairly.84 Where the employee is aware
of the precise nature of the employer’s concern about his or her conduct or performance and
has a full opportunity to respond to this concern, this is enough to satisfy the requirements.85
[111] As set out above, the Applicant was clearly given an opportunity to respond to the valid
reasons for dismissal.
[112] In all the circumstances, I find that the Applicant was given an opportunity to respond
to the reason for his dismissal prior to the decision to terminate his employment. Consideration
of this factor weighs against a finding the dismissal was unfair.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal?
[113] Where an employee protected from unfair dismissal has requested a support person be
present to assist in discussions relating to the dismissal, an employer should not unreasonably
refuse that person being present.
[114] There is no positive obligation on an employer to offer an employee the opportunity to
have a support person:
“This factor will only be a relevant consideration when an employee asks to have a
support person present in a discussion relating to dismissal and the employer
unreasonably refuses. It does not impose a positive obligation on employers to offer an
employee the opportunity to have a support person present when they are considering
dismissing them.”86
[115] As set out earlier, there was no refusal to allow the Applicant to have a support person
during discussions.
[116] In all the circumstances, I find that the Respondent did not unreasonably refuse to allow
the Applicant to have a support person present at discussions relating to the dismissal.
Consideration of this factor is neutral in the circumstances.
[2024] FWC 1701
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Was the Applicant warned about unsatisfactory performance before the dismissal?
[117] As the dismissal did not relate to unsatisfactory performance, this factor is not relevant
to the present circumstances.
To what degree would the size of the Respondent’s enterprise be likely to impact on the
procedures followed in effecting the dismissal?
[118] Neither party submitted that the size of the Respondent’s enterprise was likely to impact
on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s
enterprise had no such impact. This is a neutral consideration in the circumstances.
To what degree would the absence of dedicated human resource management specialists or
expertise in the Respondent’s enterprise be likely to impact on the procedures followed in
effecting the dismissal?
[119] Neither party made submissions on this matter.
[120] Having regard to the foregoing, I find that this is a neutral consideration in the
circumstances.
What other matters are relevant?
[121] Section 387(h) requires the Commission to take into account any other matters that the
Commission considers relevant.
Submissions other relevant matters – s.387(h) issues:
[122] The Applicant raises a number of matters under the heading of relevant matters in their
final submissions. Some of these are directed at the claims that the Respondent has failed to
comply with the drug policy, failed to adequately investigate the Applicant’s decision not to
participate and alleged inconsistencies in the application of the policy. I have dealt with these
claims to the extent they are relevant above and find that they are without any sound basis, and
I don’t accept them.
[123] It is also alleged that the dismissal was a pre-determined and disproportionate outcome
as the Respondent simply followed a process without adequately turning its mind to the factors
weighing against dismissal. However, I do not accept that this is what the evidence, set out
comprehensively above shows. It instead shows that the Respondent followed a process
whereby it investigated the matter, suspended the Applicant on full pay while it did so, put their
findings in clear terms to the Applicant, sought a response from the Applicant and considered
that response before making a decision. There is no evidence that the Respondent did not “turn
its mind” to the factors weighing against the dismissal.
[124] There are other factors relevant to the consideration and I will deal with them now.
[2024] FWC 1701
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[125] The first factor is the Applicant’s length of service and that he has not recorded in the
past any breaches of safety policies or procedures. The Applicant was employed for
approximately 7 years. This is not a significantly long period of employment but nor is it a short
period of employment. Certainly, the fact that the Applicant during his period of employment
has not been the subject of any disciplinary action previously is a factor that weighs in favour
of a finding the dismissal was unfair.
[126] The second factor is the impact of the dismissal on the Applicant. This relates to the
Applicant’s future employment prospects and financial circumstances. The evidence on this
was that the Applicant has had difficulty finding alternative employment as he does not
currently hold a driver’s licence or have access to reliable public transport. Since being
terminated the only work the Applicant has performed are labour jobs for friends and family on
an ad hoc basis.87 I accept that the Applicant will have difficulty securing further employment
and this is a factor weighing in favour of a finding the dismissal was unfair.
[127] The third factor is the Applicant’s level of insight into his conduct. I have set out my
findings on this matter above. While the Applicant gave clear indications of remorse during the
show cause process, he has also sought to diminish his responsibility for his actions. Overall,
this factor does not weigh for or against the Applicant and is a neutral consideration.
[128] Having considered these additional matters, I am satisfied that the Applicant’s length of
service and previously clear disciplinary record and the impact of the dismissal in terms of his
future employment prospects are factors that weigh in favour of a finding of that the dismissal
was harsh.
Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or
unreasonable?
[129] I have made findings in relation to each matter specified in s.387 of the Act as relevant.
[130] I must consider and give due weight to each as a fundamental element in determining
whether the termination was harsh, unjust or unreasonable.88
[131] Having considered each of the matters specified in s.387 of the Act, it is apparent that
there are valid reasons for the dismissal and this weighs against a finding of unfairness. The
Applicant has engaged in serious misconduct. This weighs significantly against a finding that
the dismissal was unfair. The consideration of the factors in s.387(b) and (c) relevant to the
process of effecting the dismissal also weigh against a finding that the dismissal was unfair.
The matters in 387(d) to (g) are neutral. The impact of the dismissal, the length of service and
the prior good conduct of the Applicant weighs towards a finding of harshness. However,
taking into account all of the factors, I am not satisfied those factors weighing in favour of a
finding the dismissal was unfair outweigh the factors weighing in favour of a finding that the
dismissal was fair. The action of the Applicant was wilful and deliberate. It was serious
misconduct. He was notified of the reason for dismissal and given an opportunity to respond.
There was procedural fairness afforded him by the Respondent. All other factors from (d) to (g)
are neutral considerations. While some of the matters considered under (h) weigh in favour of
the Applicant, taking into account all of the factors, I am not satisfied that the dismissal was
harsh, unjust or unreasonable.
[2024] FWC 1701
25
Conclusion
[132] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not
satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act. The
Applicant’s application is therefore dismissed. An order89 to that effect will be issued
separately.
COMMISSIONER
Appearances:
M. Ewikowski, Representative for the Applicant
B. Stacey, the Applicant
P Schramm, witness for the Applicant
K. Stacey, witness for the Applicant
N. Tewson, witness for the Applicant
A. Mills, Representative for the Respondent
K. Kingsley, witness for the Respondent
A. McRoy, witness for the Respondent
Determinative hearing details:
Hobart
16 April 2024
Printed by authority of the Commonwealth Government Printer
PR776516
1 Transcript at PN21 - PN22.
2 Digital Court Book at page 32.
3 Ibid.
4 Ibid at page 43.
5 PN106-107.
6 Digital Court Book at page 32.
7 Ibid.
8 Digital Court Book at page 45-46.
THE SEA NOISSIN F THE FAIR WORK 0
[2024] FWC 1701
26
9 Ibid at page 32.
10 Ibid at page 265.
11 Ibid at page 265.
12 Ibid at page 277.
13 Ibid at 281-282.
14 Ibid at 545-547.
15 Digital Court Book at page 546.
16 PN181.
17 Digital Court Book at page 607.
18 PN168.
19 Digital Court Book at page 250.
20 PN171.
21 PN175.
22 PN185.
23 PN826.
24 Digital Court Book at page 250.
25 Ibid at page 252.
26 Ibid 758-763.
27 Ibid at page 759.
28 PN90-91.
29 PN92-97.
30 PN99.
31 PN181.
32 Digital Court Book at page 607.
33 Digital Court Book at page 43.
34 Ibid at page 32.
35 PN115.
36 PN748.
37 Digital Court Book at page 769.
38 PN158.
39 Digital Court Book at page 230.
40 Ibid at paragraph 25, page 548.
41 PN625-627.
42 Ibid at page 229.
43 PN262.
44 Digital Court Book at page 761.
45 Ibid at page 760.
46 PN135.
47 Digital Court book at page 230.
48 PN119-141.
49 PN141.
50 PN126.
51 PN125-127.
52 PN880-883.
[2024] FWC 1701
27
53 Digital Court Book at page 230.
54 Ibid.
55 PN151.
56 Digital Court Book at page 767-788.
57 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
58 Chubb Security Australia Pty Ltd v Thomas Print S2679 (AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000)
at para. 41.
59 Digital Court Book at page 43.
60 PN910-PN914.
61 Digital Court Book at pages 38-41.
62 PN57-62.
63 Digital Court Book at page 39.
64 PN135.
65 Digital Court Book at page 43.
66 Digital Court Book at page 760.
67 PN533.
68 Digital Court Book at page 472.
69 PN595-596.
70 Digital Court Book at page 472.
71 Ibid at page 224.
72 Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP,
Lacy SDP, Simmonds C, 21 March 2002), [69].
73 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
74 Ibid.
75 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
76 Edwards v Justice Giudice [1999] FCA 1836, [7].
77 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].
78 Regulation 1.07(2)(b) of the Fair Work Regulations 2009.
79 Ibid.
80 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
81 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
82 Ibid.
83 Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton
SDP, Cribb C, 11 May 2000), [75].
84 RMIT v Asher (2010) 194 IR 1, 14-15.
85 Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
86 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].
87 Digital Court Book at page 35-36.
88 ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon
Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice
[1999] FCA 1836, [6]–[7].
89 PR777604.
https://www.fwc.gov.au/documents/decisionssigned/html/2011fwafb7498.htm
https://www.fwc.gov.au/documents/alldocuments/pr915674.htm
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
http://www.fwa.gov.au/documents/Benchbookresources/unfairdismissals/Walton_v_Mermaid_Dry_Cleaners.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/pr915674.htm
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr777604.pdf
