[2024] FWC 2351
The attached document replaces the document previously issued with the above code on 2
September 2024.
Additional paragraphs added at [110] to [140].
Associate to Commissioner Durham
Dated 3 September 2024
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Michael Gauci
v
DP World Brisbane Pty Limited
(U2024/3765)
COMMISSIONER DURHAM BRISBANE, 2 SEPTEMBER 2024
Application for an unfair dismissal remedy – applicant failed drug test – applicant did not
disclose prescribed medicinal cannabis – breach of policy – valid reason – dismissal not
unfair – application dismissed
[1] On 5 February 2024, Mr Michael Gauci, a Stevedore at DP World’s Brisbane terminal
was selected to undertake a random drug test. He returned a non-negative result.
[2] Further laboratory testing confirmed the presence of 11-nor-d-9-THC-9-carboxylic
acid, which is more commonly known as THC, in Mr Gauci’s urine at a level 10 times higher
than the high range threshold prescribed by DP World’s Alcohol and Other Drugs Policy (AOD
Policy).
[3] Following a disciplinary process, Mr Gauci was dismissed without notice due to serious
breaches of DP World’s AOD Policy and his employment contract.
[4] Mr Gauci, who at the time, had been prescribed and was consuming medicinal cannabis,
believes that his dismissal was unfair. He maintains that when he presented for work on 5
February 2024, he was not impaired and was able to competently perform his duties without
compromising the health and safety of himself or others.
[5] He argues that the existence of traces of the metabolite THC in his system, in
circumstances where he had a prescription, and was not impaired was not a valid reason for his
dismissal.
[6] Mr Gauci seeks reinstatement to his former position, continuity of employment and lost
pay. In the alternative, he seeks compensation of six (6) months of his income.
[7] For the reasons outlined below I find that there was a valid reason for Mr Gauci’s
dismissal and further, that the dismissal was not harsh, unjust, or unreasonable. It was therefore
not unfair.
[2024] FWC 2351
DECISION
AUSTRALIA FairWork Commission
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Procedural Background
[8] Following an unsuccessful conciliation conference on 27 May 2024, the matter
proceeded to hearing on 16 and 17 July 2024. At the hearing, Mr Gauci was represented by Mr
Samuel O’Sullivan of the Construction Forestry and Maritime Union (MUA) and DP World
was represented by Mr James McLean of Counsel.
[9] Both parties filed written submissions and witness statements. Mr Gauci gave evidence
in support of his application as did Mr Aaron Johnston, MUA Official. Dr Michael Robertson,
Pharmacologist and Forensic Toxicologist, provided an expert report and was called to give
evidence for Mr Gauci.
[10] Mr Benjamin Hanley, General Manager, gave evidence on behalf of DP World. Dr
Michelle Williams, Chief Toxicologist for Brassetts Group provided an expert report and was
called to give evidence on behalf of DP World.
BACKGROUND
Mr Gauci’s role and his employment with DP World
[11] At the time of his dismissal, Mr Gauci was employed by DP World as a Stevedore (grade
3) at DP World’s Brisbane Terminal. He had been employed with DP World for over 19 years.
[12] Whilst Mr Gauci contends that he had an impeccable work history, I have noted and
given appropriate weight to DP World’s submissions, and the evidence of both parties relating
to an official warning that was issued to Mr Gauci in 2017 for a breach of an unrelated policy.1
[13] It is not in dispute that Mr Gauci’s role is one that can be described as safety critical
and that prior to his test he had been driving a shuttle carrier — work which would reasonably
be characterised as driving or operating heavy machinery.
Mr Gauci’s medical condition and use of medicinal cannabis
[14] In recent years, Mr Gauci’s relationship with his wife had become strained, leading to a
significant deterioration in his mental health. In February 2023 Mr Gauci was prescribed
medicinal cannabis as a treatment for his condition. Mr Gauci was prescribed:2
• Phytoca CBD oil 150 30ml (THC Oil)
Dosage: Initial dose: 0.25mL BD SL (daily); increase each dose by 0.1ml every two
days if required until symptoms are controlled, or side effects occur; Maximum daily
dose: 3.0mL
• Spectrum Therapeutics Canopy JH 22 THC flower 15g (22% THC Flower)
Dosage: Initial dose: 0.1g via vape PRN; increase by 0.1g every two days if required
until symptoms are controlled, or side effects occur; Maximum daily dose: 1.0g
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• Spectrum Therapeutics Canopy TC 28 THC flower 15g (28% THC Flower)
Dosage: Initial dose: 0.1g via vape PRN; increase by 0.1g every two days if required
until symptoms are controlled, or side effects occur; Maximum daily dose: 1.0g.
[15] It is not in dispute that Mr Gauci did not disclose this prescription or his use of medicinal
cannabis to DP World.3
[16] In June 2023 Mr Gauci separated from his wife.4 Mr Gauci provided evidence, which I
accept, about the further impact this had on his mental health, and the various associated periods
of leave taken during 2023.5
[17] Mr Gauci acknowledges that during this period his use of medicinal cannabis increased
however he maintains that he always ensured that he did not consume medicinal cannabis within
24 hours of commencing a shift.6 I note at this point that the position of the parties differs as to
whether 24 hours is sufficient time to ensure that no impairment remains, nor to ensure that a
positive result would not be recorded, as required by the AOD Policy.
[18] In early January 2024, Mr Gauci’s mental health deteriorated further, and he began
seeing a psychologist, Dr Siang who gave him a provisional diagnosis of depression and anxiety
and provided him with a medical certificate saying that he was unfit for work from 4 January
2024 up to 29 January 2024.7
[19] During this period of leave, Mr Gauci says that he was barely sleeping.8 Trying to “get
himself better” Mr Gauci increased his usage of medicinal cannabis.9
[20] On the evening of 3 February 2024, Mr Gauci was struggling to sleep. At approximately
7:00am the next morning (4 February 2024 – the day before he was due to start work), he
consumed a “small amount” of medicinal cannabis to help him get back to sleep.
[21] During cross examination, when pressed on exactly how much medicinal cannabis he
had consumed, Mr Gauci explained that he did not weigh the amount and measured by eye.
Further, Mr Gauci was unsure whether he had consumed the 22% THC Flower or 28% THC
Flower, but thought it may have been the latter and that it was most likely that he had consumed
approximately 1 gram. It is noted that this was the maximum prescribed daily dose.
The events of 5 February
[22] Mr Gauci states that he woke on the morning of 5 February 2024 as normal and “did not
feel impaired whatsoever”.10 He travelled to work as usual on his motorbike to commence his
7.00am shift.
[23] Mr Gauci was assigned to operate a shuttle carrier that day. Mr Gauci’s statement
provides that after beginning work, he only picked up one container box before being informed
over the radio that he had been selected for a random drug and alcohol test.11
[24] He proceeded to the security hut where the test was conducted.12Attempts to take a
saliva sample were unsuccessful however Mr Gauci did produce a urine sample which returned
[2024] FWC 2351
4
an initial non-negative result for THC.13 In accordance with the AOD Policy, the sample was
then sent away for confirmatory testing and Mr Gauci was stood down on full pay pending the
results.
The disciplinary process
[25] Two days later, on 7 February 2024, DP World received test results which confirmed
the presence of THC in Mr Gauci’s urine at a level of 635ug/l (630 micrograms per litre of
urine).14 This result was 42 times higher than the cut off level of 15ug/l prescribed by both the
Australian Standards and the AOD Policy and some 10 times higher than the high range
threshold of 60ug/l prescribed in the AOD Policy.15
[26] On 8 February 2024 DP World wrote to Mr Gauci notifying him of the results and
advising that he was stood down without pay pending an investigation.16 The letter outlined the
particulars of DP World’s concerns and required that he attend a meeting to discuss “concerns
about his conduct and the prospects that his employment could be terminated for serious
misconduct for a breach of the AOD Policy”.17
[27] The meeting was held on 14 February 2024 and was attended by Mr Hanley and Mr
Brendan Cleaver, HR Manager.18 Mr Gauci attended with his support person, Mr Jason Miners,
Branch Secretary, MUA.19
[28] During the meeting, Mr Gauci explained the personal issues he had been experiencing
and for the first time, disclosed to DP World that he had been prescribed, and consuming
medicinal cannabis.20 The meeting was adjourned to give Mr Gauci the opportunity to obtain
further information from his treating practitioner including:21
• what had been prescribed,
• when it had been prescribed, and
• any advisory warnings Mr Gauci may have been given in relation to driving or the use
of heavy vehicles whilst taking the prescription.
[29] The next day, a follow up letter was sent confirming the information sought and that it
was to be provided by 23 February 2024.22
[30] On 23 February 2024, Mr Johnston emailed Mr Hanley seeking further time to obtain a
“treatment letter” and providing a copy of a patient consent form that had been signed by Mr
Gauci which included a signed acknowledgement that Mr Gauci understood that he must not
operate heavy machinery whilst taking medicinal cannabis containing THC.23
[31] On 7 March 2024, a further meeting was held. At this meeting Mr Miners provided three
documents for consideration:24
• a treatment letter from Mr Gauci’s doctor, Dr Joshua Gabrial,
• a letter listing 14 matters that should be considered as mitigating factors, and
• a letter highlighting Dr Gabriel’s comments, to the effect that “testing positive for THC
does not indicate impairment.”
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[32] On 13 March 2024, Mr Gauci was advised that the outcome of the disciplinary process
was that his employment would be terminated due to serious breaches of the AOD Policy and
his employment contract.25
DP World’s drug and alcohol framework
[33] DP World have had an AOD Policy since 2012.26 The current version of the AOD Policy
has been in place since 2021.27
[34] It is not in dispute that among other things, the AOD Policy provides:28
a. "(e)mployees must not attend for work with an alcohol or other drug level that exceeds
the limits contained in Appendix B of this Policy”.
b. "(e)mployees who are required to take medications, such as over the counter
medications or prescription drugs that may impact their physical or mental alertness are
required to notify their Manager or Supervisor”.
c. "(b)reaches of this Policy are serious and have the ability to put the health and safety of
Employees and others at significant risk”.
d. "DP World has discretion to take the appropriate disciplinary action for breaches of this
Policy which may include termination of employment"; and
e. "(b)reaches of this Policy may be considered serious misconduct which may result in
instant dismissal in particular where there is a "high range" level detected or where this
is a second breach".
[35] Relevantly, the AOD Policy includes, at Appendix B, a table providing “Alcohol &
Other Drugs Detection Levels” for various substances, along with a note that these cut off levels
are intended to reflect Australian Standard detection levels. The policy also prescribes what are
“High Range” readings.
[36] Importantly, within the table outlining high range levels, are the words “High range
detection will be considered a serious breach of this Policy.”29
[37] DP World's Code of Conduct (Code) also outlines DP World's expectations of
employees as they relate to fitness for work:30
"I will be drug and alcohol free at work and advise of any injuries, medications or
medical conditions that could impede my ability to do my job safely before I commence
work".
[38] It is Mr Hanley’s uncontested evidence that the AOD Policy and the Code are available
on the People Portal, an intranet site that has been setup by DP World for employees.31
[39] Mr Hanley gave evidence about the steps taken by DP World to continually reinforce
the importance of the policy to employees including:32
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• on induction;
• in e-mail updates sent to mailing lists – (including a June 2023 email which included a
copy of the AOD Policy and the employee declaration form, which had been sent to all
employees at the request of the Safety Committee);
• during toolbox meetings;
• more generally, for example, through posters on the walls around the terminal; and
• through the distribution of workplace bulletins and circulars.
[40] Annexed to Mr Hanley’s statement were a selection of bulletins that had been sent to all
employees including one titled “Update to our Alcohol and Other Drugs Policy” sent 20 July
2020.33 This bulletin included a specific reference to a lowering of the cut off levels for THC.34
Importantly, it included a link to the new policy and reminded employees of their obligations
to familiarise themselves with, and comply with the policy.35 Mr Hanley also included a bulletin
issued on 30 August 2022 which explains DP World’s expectations about the disclosure of
medications.36
[41] On 27 June 2022, following a decision of the Fair Work Commission in a matter that
shares many similarities with this matter, Mr Mark Hulme, Chief Operating Officer - Ports &
Terminals, sent a circular to all employees which stated:37
“FAIR WORK COMMISSION CONFIRMS THAT DP WORLD POLICY SHOULD BE
COMPLIED WITH BY EMPLOYEES
DP World is committed to providing a safe work environment, and our Alcohol and other Drugs Policy
clearly set out that employees may not use either alcohol or illicit drugs and attend the workplace. Doing
so places you and your workmates at an unacceptable risk.
DP World terminated the employment of a long serving employee, from the Fishermans Island terminal
who tested non-negative to THC (cannabis). He elected to challenge this in the Fair Work Commission
who upheld DP World's decision to terminate his employment. The case has highlighted a number of key
findings which are important to share:
Firstly, the work being performed by employees at our Terminals, whether it be as a Stevedore, on a
vessel or in the Control Room, is safety critical and that DP World's zero tolerance stance is proportional
and required.
Secondly, there is no safe 'window of detection' and that certain drugs can stay in your system for days,
weeks or months. This means there is no means by which an employee can be confident there are no drugs
in their system when they attend for work.
Thirdly, attending for work with drugs in their system shows reckless indifferent to breaching the policy.
This decision is an important reminder for all workers to follow the Policy at all times.
Our Policy is based on the "presence" of a drug rather than "impairment". This means DP World does not
need to prove that your work or performance has been adversely affected by the drugs- the presence of
the substance is the breach.
The employee has decided to appeal this decision. DP World will continue to defend its zero tolerance
approach to managing drugs and alcohol in the workplace.
REMINDER:
We all share a responsibility for maintaining a safe working environment DP World has a zero tolerance
to drugs and alcohol in the workplace. Its simply not worth the risk to yourself or others.
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Any employee who returns a non-negative reading will be stood down and subject to a show cause
process. With disciplinary action, up to and including termination.”
[42] In addition to DP World’s internal policies and procedures, the DP World Enterprise
Agreement 2020 (the Agreement), to which the MUA are a party, acknowledges the existence
of the AOD Policy and outlines the various testing methods that may be used, including random
testing, as was undertaken on 5 February 2024.38
[43] Mr O’Sullivan references DP World’s “Drug and Alcohol Framework” as being a
combination of the AOD Policy and the circular issued to employees 27 June 2022. The AOD
Policy is part of a broader framework, however, it seems quite selective to suggest that any
applicable “framework” was limited to these two documents. Taking the above into
consideration, I find that the AOD policy is a part of a broader framework that includes the
Code, supplementary bulletins and circulars, and the Agreement.
THE MEDICAL EVIDENCE
The evidence of Dr Robertson
[44] Dr Robertson notes that the presence of THC in Mr Gauci’s urine is consistent with
some prior ingestion of a THC-containing product.39 Whilst he is not aware of the amount of
THC-containing product that was actually consumed by Mr Gauci, if he had used the maximum
dose of 1 gram for each of the flower products (2 grams per day), in the 24 hours before his
test, this could reasonably have produced the result returned by Mr Gauci.40
[45] Dr Robertson references a range of studies that show that the concentrations found in
Mr Gauci’s urine were reasonable in the first 24 hours and would decline slowly over the
following days.41
[46] Much of Dr Robertson’s report goes to the question of impairment. Dr Robertson notes
that the risk of impairment by THC will differ depending on the dose, the time of use and the
tolerance of the individual to the effects of THC.42 He further notes that the detection of THC
in a urine sample does not in and of itself, infer impairment at the time the sample was taken.
[47] Dr Robertson states that on the assumption that Mr Gauci last used THC-containing
products 24 hours prior to attending work, it is not likely that any material impairment would
have remained the following day.43
[48] Dr Robertson notes that Mr Gauci would have been observed by several individuals the
morning of his test, and that there is no reference in any of the documentation he has seen that
indicated Mr Gauci was displaying any signs of indicia consistent with intoxication.44
[49] During cross examination, it was put to Dr Robertson and accepted that he could not
rule out without scientific certainty that Mr Gauci was impaired when he attended work.
[50] Doctor Robertson described the level of THC in Mr Gauci’s system as being consistent
with significant consumption.
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[51] With respect to the declaration Mr Gauci had signed acknowledging he understood that
he must not drive or operate heavy machinery whilst taking medicinal cannabis, Dr Robertson’s
response was that this is also dependent on whether the intention was to reference impairment
or presence of THC. If the former was the intention, then Dr Roberston says it would be
“unlikely” that Mr Gauci was in breach however if the intention was that he does not have the
presence of THC in his urine, then he would be in breach of this acknowledgment.45
The evidence of Dr Williams
[52] Dr Williams agrees with the statements of Dr Robertson with respect to variables
associated with impairment and that no inference of impairment can be drawn from a positive
urine test, rather the detection of THC in the urine is only evidence of prior use, within a day
or days of the test.
[53] On the topic of duration of effect, Dr Williams notes that the higher the dose the more
profound the impairment and that logically, the longer it will take for the body to excrete it.46
[54] Dr Williams notes that THC is the euphoric compound in both recreational and
medicinal cannabis and that because the concentration of THC is consistent across doses/gram,
the effects of medicinal cannabis are identical to the effects of cannabis consumed
recreationally.47
[55] Dr Williams notes that there is a difference between detectable (i.e. above the cut off
specified in Australian Standards being 15ng/ml and returning a result as high as the one
returned by Mr Gauci being 635ug/ml (ug/ml is synonymous with ng/ml).48
[56] Dr Williams disagrees with Dr Robertson’s contention that Mr Gauci would not have
experience any material impairment 24 hours after consuming medicinal cannabis, sighting
various contrary studies and reports.49
[57] In response to Dr Robertson’s comments about the lack of reports of any visual or other
signs of impairment prior to the test, Dr Williams notes that the type of impairments noted are
not readily observable from a brief interaction and that “lack of overt impairment is not the
same as a person being fit to perform their high-risk job role”.50
[58] Dr Williams goes on to note that, on the basis of Mr Gauci’s statement, that he used
medicinal cannabis infrequently, he would not be characterised as a “regular high dose cannabis
user”.51 However, if (as he may be have suggested in his oral evidence) he was using cannabis
to the extent that he would be characterised as a regular high dose user then, based on her
experience, the additional factor of withdrawal would need to be considered when assessing
levels of impairment.
Conclusions on the medical evidence
[59] Both Dr Robertson and Dr Williams noted that they had prepared their reports per the
Expert Witness Code of Conduct and agreed to be bound by it. I note that the reports of both
doctors are based on similar assumptions – as they relate to the time of the test; the method of
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testing used; Mr Gauci’s prescription; and when Mr Gauci says he had last consumed medicinal
cannabis.
[60] In response to Dr Williams’ statement, Mr O’Sullivan disputed the assumption behind
Dr Williams’ findings, suggesting that the assumption that Mr Gauci had consumed .25ml of
Phytoca CBD oil 150 twice a day; and 0.1g of Therapeutics Canopy JH 22 THC Flower 22%
twice a day in the days preceding 5 February 2024 were incorrect as Mr Gauci had not made
any disclosure about the amount of THC he consumed during that period at the time the report
was written.52 He went on to state that in the period 4 January 2024 to the evening of 3 February
2024, he consumed, on some days, medicinal cannabis up to but no more than the amount
prescribed. This was noted and accepted by Dr Williams.
[61] Notwithstanding the above, it was common ground between the experts that the dose
that would have been consumed by Mr Gauci was equivalent to about 280 milligrams of THC,
a level of THC Dr Robertson acquainted with, having smoked 10 to 15 joints.
[62] The evidence provided by Mr Aaron Johnston and submissions about Ms Williams
qualifications compared to Dr Robertson, and the suggestion that Dr Williams lacked
impartiality have been considered in light of the Code. I found the evidence of both Doctors to
be credible and I am not persuaded that any lack of impartiality exists.
[63] Notwithstanding the above, much of the evidence provided by both Doctors aligns,
particularly with respect to the difficulties posed when trying to measure impairment from THC
and both experts agree that the concentration of THC in urine only relates to exposure, not
impairment.
Mr Gauci’s evidence about his use
[64] During Mr Gauci’s oral evidence, he said that he consumed 1g to 2g a day but was
unclear how much he would consume on a weekly basis. Furthermore, he was unsure which
flower he would consume, noting he would take 22% THC Flower for day and 28% THC
Flower for sleep. Though when asked how much of the 22% THC Flower he took, Mr Gauci
said sometimes none. Mr Gauci also said that the 22% THC Flower and 28% THC Flower
would sometimes get mixed up.
[65] Viewed objectively, I find Mr Gauci’s statements about the amount of cannabis he had
consumed, particularly his reference to “a small’ amount” were unreliable due to the imprecise
nature of measurement and the risk that the 22% THC Flower and 28% THC Flower may have
been confused.
WAS MR GAUCI UNFAIRLY DISMISSED?
[66] There is no dispute, and I am satisfied that Mr Gauci was protected from unfair dismissal
at the time he was dismissed.53
[67] The criteria that I must consider when deciding whether Mr Gauci’s dismissal was
harsh, unjust, or unreasonable are set out at s.387 of the Act. My consideration of each criteria
follows below.
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Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct
(including its effect on the safety and welfare of other employees)?
[68] It is well established that the factual basis for the reason for dismissal will not of itself
demonstrate the existence of a valid reason.54 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”55 and should not be “capricious, fanciful, spiteful or prejudiced.”56 As
summarised by then 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”.57 The Commission
must consider the entire factual matrix in determining whether an employee’s termination was
for a valid reason.58
Submissions of Mr Gauci
[69] Mr Gauci submits that there was no valid reason for the dismissal related to his capacity
or conduct.
[70] Mr Gauci maintains that he was in a fit and healthy state and able to competently
perform his duties without compromising the health and safety of himself or others when he
commenced work on 5 February 2024.59 And further, that the mere existence of traces of the
metabolite THC in his system in circumstances where he had a prescription and was not
impaired is not a valid reason for dismissal.60
[71] Mr Gauci submits that he did not act deliberately or recklessly in returning the non-
negative result. Mr Gauci knew that he was required to attend the terminal “fit for work” and
held a reasonable and honest belief that enough time had passed between consuming a small
amount of medicinal cannabis and the beginning of his shift.61
[72] Further, in attending for his 5 February 2024 shift, Mr Gauci believed that there would
be no impact to his physical or mental alertness because he had allowed 24 hours to pass from
the time of consuming a small amount of medicinal cannabis until the beginning of the shift.
[73] Mr Gauci does not dispute that he failed to declare to DP World that he had been
prescribed and was taking medicinal cannabis and initially accepted that this was inconsistent
with his obligations under the AOD Policy. He argues that this failure to disclose was not a
valid reason for the dismissal related to his capacity or conduct.62 I note at this point an
inconsistency that arose during cross examination, where Mr Gauci retracted from this position,
seeming to disagree that his actions were in fact in breach of the policy.
[74] Mr Gauci further argued that he was confused about his obligation to disclose the
medicinal cannabis prescription, with this confusion further exacerbated by him not being
properly informed of his obligations under DP World’s drug and alcohol policy framework.63
[75] Mr Gauci states that he held an honest and genuine belief that DP World would prohibit
him from attending the workplace and/or terminate his employment if he disclosed the
medicinal cannabis prescription.64 This he believed to be true despite any assurances he could
make as to impairment. He contends that this was a reasonable conclusion to have drawn in that
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the AOD Policy requires employees to notify DP World of certain medications, while at the
same time, DP World purports to have a blanket zero tolerance approach to drugs in the
workplace, including prescribed medicinal cannabis.
Submissions of DP World
[76] DP World submitted that there was a valid reason for the dismissal related to Mr Gauci’s
capacity or conduct because DP World operates in a safety critical environment, and is entitled
to implement and expect compliance with its AOD Policy in order that it can discharge its own
obligations to take reasonable steps to ensure the safety of persons working at the Port.65
[77] They say Mr Gauci breached the AOD Policy by:
a) failing to declare that he had been prescribed and was using medicinal cannabis; and
b) attending for work with an elevated level of a proscribed substance in his system.
[78] And that such breaches of policy constitute a valid reason, as a failure by an employee
to comply with a lawful and reasonable policy will be a breach of a fundamental term of the
contract of employment.66 Noting that Mr Gauci would reasonably have been aware that
termination of employment was a potential outcome of a breach of the AOD Policy.67
[79] Relevantly, the AOD Policy, at least insofar as it requires employees to declare
prescription medication and not attend for work with proscribed substances in their system, is
evidently a lawful and reasonable one. The observations of the Full Bench in Sharp v BCS
Infrastructure Support Pty Limited (Sharp) are relevant, where the Full Bench, after noting the
difficulties of establishing whether an employee is impaired because of cannabis use,
concluded:
“[f]or that reason, employer policies which provide for disciplinary action
including dismissal where an employee tests positive for
cannabis simpliciter may, at least in the context of safety-critical work,
be adjudged to be lawful and reasonable.”68
[80] DP World submit that Mr Gauci’s ancillary contention that he was not impaired when
he attended for work is simply not relevant in circumstances where impairment was not the
reason relied on for terminating his employment. Rather, the finding of serious misconduct
related to Mr Gauci breaching the AOD Policy, by attending work with a proscribed drug in his
system and failing to declare that he had been prescribed and was consuming medicinal
cannabis. 69
[81] Furthermore, DP world submit that as Mr Gauci had committed two serious breaches of
a lawful and reasonable policy, any matters raised in mitigation are relevant not to whether
there was a “valid reason”,70 but only to the subsequent question of whether dismissal was
“harsh, unjust, or unreasonable”.71
[82] DP World argue that the submission that Mr Gauci was supposedly not impaired by the
presence of elevated levels of THC in his system are of peripheral relevance, given he was
dismissed not for being impaired but for attending work with a proscribed drug in his system.72
And moreover, this submission is untenable given the level of THC detected.
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Consideration
The question of impairment
[83] Mr Gauci’s submissions focus on the distinction between returning a positive test for
THC and impairment. Whilst I accept the Mr Gauci may well have felt completely fine, the
evidence of both Dr Robertson and Dr Williams concurs with respect to the many variables that
exist when determining the level of impairment that any individual may experience.
[84] As noted in Mr Hanley’s evidence, the AOD Policy is not based on levels of impairment,
rather it sets “cut-off” limits” for proscribed drugs which are based on Australian Standards.73
Mr Hanley says, and I accept, that the policy was developed in this way due to the medical
evidence that clearly suggests that there is no meaningful way to test for impairment.
[85] As explored above, I find Mr Gauci’s evidence regarding the amount, and strength of
cannabis he had consumed to be unreliable. Similarly, I find Mr Gauci’s statements that the last
time he consumed medicinal cannabis was “approximately” 7:00am the day before he was due
to return to work to be of concern. This is not a definitive recollection, and leaves open the
possibility that the cannabis was consumed after 7:00am. Each of these factors cast doubt over
Mr Gauci’s contention that he held a reasonable and honest belief that enough time had passed
between consuming a small amount of medicinal cannabis and the beginning of his shift.
[86] Notwithstanding the above, I find that Mr Gauci was dismissed because he breached the
AOD Policy by failing to declare his use of prescription medication and for attending work with
an elevated level of a proscribed substance in his system.
[87] Consequently, I find Mr Gauci’s submission that he was not impaired by the presence
of elevated levels of THC in his system to be of peripheral relevance, given he was dismissed
not for being impaired, but for attending work with a proscribed drug in his system and for
failing to declare his use of prescription medication.
Prescription medication v recreational use
[88] I do not accept Mr Gauci’s suggestion that a distinction should be made between drugs
that are consumed recreationally and those consumed via a prescription. Noting Dr Williams’
report, the effects of medicinal cannabis taken in accordance with a prescription and
recreational use of cannabis are identical.74
[89] Mr McLean notes similarities between this present matter and the decisions of the Full
Bench in Sharp, and Harbour City Ferries Pty Ltd v Mr Christopher Toms (Toms) however Mr
O’Sullivan argues that these cases are distinguishable from this matter because, unlike the
applicants in Sharp and Toms, who had both consumed unlawful substances recreationally, Mr
Gauci was prescribed medicinal cannabis to treat a serious medical condition.
[90] Having found that Mr Gauci was dismissed for two breaches of his employer’s policy,
I do not accept this argument. The AOD policy clearly outlines the responsibility of employees
to not return positive test results for THC. The policy does not distinguish between prescribed
[2024] FWC 2351
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or recreational consumption in this regard. Where the policy does make a distinction between
the two, however, is with respect to the requirement that employees report the use of any
prescription medication – which, as will be further explored below, Mr Gauci failed to do.
Requirement to report prescription medication
[91] Mr Gauci clearly understood the requirement to notify his supervisor of his prescription
and made a conscious decision not to. Whilst I accept his fears relating to reporting, the fact
remains that he knowingly and willingly breached this requirement, resulting in DP World
being unable to undertake a risk assessment or consider any reasonable adjustments that may
have been required to accommodate Mr Gauci’s medical condition and its treatment.
[92] The AOD policy specifically notes that once such prescriptions have been reported, the
employee may be required to seek a medical clearance from their treating doctor to confirm
they are fit to perform their role whilst taking the medication.75
[93] Had Mr Gauci reported this prescription, it may well have been the case that his doctor
and DP World could have agreed on an appropriate number of hours that should be left between
the consumption of medicinal cannabis and commencing work — this may well have been 24
hours, it may have been more. What is clear however, is that it was not open to Mr Gauci to
have made this assessment himself, without DP World’s input.
[94] It is also of note that having received a prescription for medicinal cannabis, Mr Gauci
signed a patient consent form acknowledging that he understood that he must not drive or
operate heavy machinery whilst taking medicinal cannabis containing THC. Viewed
objectively, this acknowledgment should have served as a clear indication to Mr Gauci of the
health and safety risks associated with his consumption of medicinal cannabis. Noting the safety
critical nature of his work, that he signed this declaration, yet still chose not to disclose his use
of medical cannabis does not weigh in his favor.
[95] I accept DP World’s submissions that Mr Gauci’s failure to report his use of medicinal
cannabis impacted on their ability to discharge their obligations to take reasonable steps to
ensure the safety of persons working at the Port, and their capacity to provide a safe working
environment.
The Lawfulness and reasonableness of the policy
[96] Consistent with the above comments from the Full Bench in Sharp, and the safety
critical role performed by Mr Gauci, I find the AOD policy to be both lawful and reasonable.
Was Mr Gauci aware of his obligations under the policy?
[97] Mr Gauci submits that DP World has failed in its obligation to explain the application
of its drug and alcohol policy framework in a way that is comprehensible for the average
stevedore,76 particularly as it relates to inconsistencies between the AOD Policy and the 27 June
2022 circular.77
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[98] As noted in paragraphs 33 to 43, DP World’s drug and alcohol framework is broader
than just the AOD Policy and the 27 June 2022 memorandum. Further, it is clear that Mr Gauci
received multiple bulletins and circulars outlining his responsibilities. Whilst I accept that Mr
Gauci may well have held some confusion, no evidence was advanced by Mr Gauci to indicate
that the drug and alcohol framework was incomprehensible to the average stevedore, nor was
any evidence advanced to suggest that either he or the MUA had raised any issues of
comprehension or confusion with DP World.
[99] Noting the safety critical nature of stevedoring work, the industrial maturity of the MUA
and the relationship between the union and DP World, it is reasonable to suggest that if such
confusion had existed, it would have been raised either at a Safety Committee meeting or during
bargaining. No evidence was advanced in this regard.
[100] I also note that Mr Gauci’s contract of employment, which he last signed on 17
November 2022 references his responsibility to familiarize himself with and comply with all
DP World Policies, including the AOD Policy and the Code.
[101] Viewed objectively, it is reasonable to assume that had Mr Gauci been confused about
his obligations, the safety critical nature of his work, combined with:
• the knowledge that he was in receipt of a prescription that may lead to him returning a
non-negative test result,
• that he had signed a declaration confirming that he understood he should not operate
heavy machinery whilst taking medicinal cannabis, and
• his knowledge that breaches of the policy may lead to disciplinary action (including
dismissal)
Should reasonably have led him to seek clarification of these points prior to commencing
consumption.
[102] Taking the above into consideration, I find that Mr Gauci was clearly aware of his
obligations under the AOD Policy as they related to reporting his use of prescription
medication. Further, that he understood his responsibility to not attend work with an elevated
level of a proscribed substance in his system.
Breach of Policy
[103] DP World note that it is uncontroversial that breaches of lawful AOD policies have been
found to constitute a valid reason. As noted in B,C and D v Australia Postal Corporation T/A
Australia Post, a failure by an employee to comply with the lawful and reasonable policy will
be a breach of a fundamental term of the contract of employment.78
[104] This was acknowledged by Mr O’Sullivan in his closing submissions however he took
issue with DP World’s failure to reflect the second sentence of that quoted paragraph, that is,
“in this way is substantial and willful breach of a policy will often, if not usually, constitute
a “valid reason” for dismissal” (emphasis added).79
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[105] Mr O’Sullivan went on to suggest that this was relevant, firstly, because Mr Gauci’s
breaches of the policy were neither substantial nor willful and secondly, because even if the
breaches are substantial or willful, they do not necessitate a valid reason for dismissal.
[106] For the reasons outlined above, I do not accept that Mr Gauci’s conduct in failing to
comply with the AOD Policy was not willful.
[107] Further, I do not accept the argument advanced by Mr O’Sullivan that the breaches
were not substantial, rather, I accept DP World’s contention that they were serious.
[108] As relevantly noted in a recent decision of Deputy President Coleman:
“Nothing can be more important than protecting health and safety in the workplace, and a drug and alcohol
policy is one important means of doing so. Failure to comply with a reasonable workplace drug and
alcohol policy is unacceptable, first and foremost because it undermines efforts to keep workers safe, and
secondly because it exposes the employer to risk.”80
Conclusions on valid reason
[109] Having regard to the above, I find that:
• The AOD policy was lawful and reasonable.
• Mr Gauci was aware of his responsibilities under the AOD Policy as they related to:
• the requirement that he report the use of prescription medication and
• his responsibility to not attend or perform work with a level of any drug within his
system that would result in him returning a positive test.
• Mr Gauci was aware that breaches of the AOD Policy would be likely to result in
disciplinary action, including the termination of his employment.
• Mr Gauci knowingly and willfully breached the AOD Policy.
[110] Consequently, I find Mr Gauci’s actions to be a serious breach of the AOD Policy and
as such, his conduct was a valid reason for his dismissal.
Was the Applicant notified of the valid reason?
[111] It is not in dispute, and I find that Mr Gauci was notified of the reasons for his
termination.81
Was the Applicant given an opportunity to respond to any valid reason related to their
capacity or conduct?
[112] Mr Gauci submitted that DP World’s zero tolerance to drugs and alcohol in the
workplace meant that he did not have a true opportunity to respond.82
[113] Put another way, Mr Gauci believes that because DP World have zero tolerance for
drugs and alcohol in the workplace, Mr Gauci’s dismissal was a “fait accompli” as the decision
to terminate his employment had already been made, irrespective of any mitigating
circumstance or defense.83
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[114] In support of this argument, Mr O’Sullivan drew the Commissions attention to Moore
J’s comments Wadey v YMCA Canberra84 which was referred to in Dover-Ray, Tamicka Louise
v Real Insurance Pty Ltd which stated:85
“ ...the opportunity to defend, implies an opportunity that might result in the employer
deciding not to terminate the employment if the defence is of substance. An employer
may simply go through the motions of giving the employee an opportunity to deal with
allegations concerning conduct when, in substance, a firm decision to terminate had
already been made which would be adhered to irrespective of anything the employee
might say in his or her defence. That, in my opinion, does not constitute an opportunity
to defend.”
[115] In response, Mr McLean reiterated Mr Hanley’s explanation of zero tolerance, as being
zero tolerance for employees attending work with drugs or alcohol in their system. Further, that
DP World’s zero tolerance approach does not mean that all breaches of the policy would
necessarily result in termination of employment. This, they say, is demonstrated by the AOD
Policy, which provides for discretion regarding disciplinary outcomes and other sanctions
depending on the circumstances.
[116] DP World submit there is no substance to the contention that the disciplinary process
was “perfunctory” as Mr Gauci was afforded multiple opportunities to respond to the concerns
raised, and all of the matters he raised in response were considered.
[117] Ultimately. DP World argue, and I accept, that the mere fact that the outcome in this
matter did not result in an outcome other than dismissal does not mean that Mr Gauci was
deprived of an opportunity to respond.86
[118] The disciplinary process was undertaken over a period of five (5) weeks. During the
process, DP World’s concerns were clearly outlined, and Mr Gauci was given multiple
opportunities to respond, both in writing and in-person, to the allegations. Where more time
was required to seek further material, it was granted.
[119] In all the circumstances, I find that Mr Gauci was given an opportunity to respond to the
reason for his dismissal prior to the decision to dismiss him being made.
Did the Respondent unreasonably refuse to allow the Applicant to have a support person
present to assist at discussions relating to the dismissal?
[120] It is not in dispute, and I find that DP World did not refuse the attendance of Mr Gauci’s
union representatives at discussions relating to the dismissal.
Was the Applicant warned about unsatisfactory performance before the dismissal?
[121] As Mr Gauci's dismissal did not relate to unsatisfactory performance, this factor is not
relevant to the present circumstances.87
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To what degree would the size of the Respondent’s enterprise be likely to impact on the
procedures followed in effecting the dismissal?
[122] Mr Gauci submitted that DP World is a large company and, as such, should have
provided him with procedural fairness, including a real opportunity to respond to the conduct.88
[123] DP World does not contend that the size of its enterprise had an impact on the procedures
followed in effecting the dismissal.89
[124] Having regard to the matters above, and having found that Mr Gauci was afforded an
opportunity to respond to the reason for his dismissal prior to the decision to dismiss being
made, I find that the size of DP World’s enterprise did not impact on the procedures followed
in effecting the dismissal.
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?
[125] Mr Gauci submitted that DP World has dedicated human resource staff that should
ensure compliance with appropriate procedures when terminating the employment of
employees.90
[126] The Respondent does not contend that any absence of dedicated human resource
expertise had an impact on the procedures followed in effecting the dismissal.91
[127] As noted above, the fact that Mr Gauci does not agree with the final determination made
by DP World at the conclusion of the process does not mean that the process followed was
flawed.
[128] Considering the above, this factor is not a relevant consideration.
What other matters are relevant?
Length of service, cooperation and remorse
[129] Mr Gauci submits that he was a loyal and hardworking employee for more than 19 years.
Further, he has an excellent employment history across those many years of service and has
expressed honest and genuine contrition for his actions. However, as noted above, Mr Gauci
appeared to walk back this position during cross-examination by denying that he breached the
AOD Policy. As such, this appears inconsistent with someone that is properly remorseful and
taking accountability for his conduct.
[130] I acknowledge that Mr Gauci is a long standing employee, however, as the Full Bench
observed in Toms, whilst an employee’s length of service may be a factor attracting a degree of
sympathy, it is also a factor that demands a high level of compliance with policy;92 and
ultimately, a significant period of service cannot be a “licence” for significant breaches of
policy that amount to serious misconduct, and particularly when that intercession has potential
consequences for the safety of others.
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[131] Consistent with the views of the Full Bench, I do not consider Mr Gauci’s service,
cooperation, and remorse to be relevant to the core issue, which is Mr Gauci’s serious breaches
of the AOD Policy.
Mr Gauci’s personal circumstances
[132] Mr Gauci submits that consideration should have been given to his personal
circumstances, including his mental health and financial situation.
[133] DP World acknowledge Mr Gauci’s personal circumstances but submit that they cannot
excuse Mr Gauci’s serious and conscious breaches of the AOD Policy.
[134] Whilst I sympathise with Mr Gauci’s personal situation and accept that his mental health
struggles are central to him having been prescribed medicinal cannabis, I am not persuaded that
Mr Gauci’s personal circumstances outweigh his obligations to comply with DP World’s AOD
Policy.
Serious Misconduct
[135] Mr Gauci submits that his conduct does not fall within the meaning of “serious
misconduct” as he did not act wilfully or deliberately, nor could his conduct be said to have
caused serious and imminent risk to the health and safety of a person or the reputation, viability,
or profitability of DP World’s business.
[136] DP World however, submit that Mr Gauci’s conduct was plainly serious misconduct
within the ordinary meaning of that term.
[137] I note the various submissions in this regard, however as acknowledged by both parties,
the question of serious misconduct is only relevant to my considerations as they relate to s
387(h) — whether the dismissal was harsh, unjust or unreasonable.
Summary dismissal was disproportionate - Other appropriate sanctions
[138] Mr Gauci submits that the AOD Policy provides for flexibility in outcomes in certain
circumstances, including a range of options that may be utilised when an employee self-
identifies or following an employee’s first non-negative result, suggesting that similar options
may have been more appropriate in Mr Gauci’s case.93
[139] As noted by DP World, this contention ignores the fact that Mr Gauci had breached two
parts of the AOD Policy. The AOD Policy makes it clear that breaches of the policy may be
considered serious misconduct which may result in instant dismissal, particularly where there
is a “high range” level detected or where there is a second breach. In this case, it is not disputed
that the level of THC detected in Mr Gauci’s urine was 10 times greater than the “high level”
prescribed by the policy.
[140] Mr Hanly stated that he considered the matters Mr Gauci and his representatives had
raised, and was open to the possibility that Mr Gauci may have identified a consideration that
[2024] FWC 2351
19
warranted a disciplinary outcome other than termination.94 As noted by DP World in their
closing submissions, this is supported by Mr Gauci’s final termination letter, which referenced
each of the mitigating factors raised by Mr Gauci, and notes that all his submissions have been
taken into consideration.
[141] As such, I find that DP World’s decision to summarily dismiss Mr Gauci was consistent
with the policy and not disproportionate in the circumstances. This weighs against a finding of
harshness.
Conclusion
[142] Mr Gauci was aware of his responsibilities under DP World’s AOD Policy as they
related to:
• the requirement that he report the use of prescription medication; and
• his responsibility to not attend or perform work with a level of any drug within his system
that would result in him returning a positive test.
[143] He was aware that a breach of the policy could result in the termination of his
employment yet failed to disclose his prescription to DP World. Further, being aware of the
safety critical nature of his role, and the high-risk work being undertaken around him, Mr Gauci
chose to consume an unconfirmed amount of medicinal cannabis around 24 hours before
beginning his shift.
[144] Mr Gauci presented for work the following day and tested positive to THC at a level
that was 10 times higher than the high range prescribed by the AOD Policy.
[145] Following a disciplinary process, throughout which Mr Gauci was provided multiple
opportunities to explain his conduct and raise any mitigating factors, DP World made the
decision to summarily dismiss him on grounds of serious misconduct.
[146] Having considered each of the matters specified in s.387 of the Act, I am not satisfied
that Mr Gauci’s dismissal was harsh, unjust or unreasonable. Accordingly, I find that his
dismissal was not unfair. On that basis the application pursuant to s.394 is dismissed.
[147] I Order accordingly.
COMMISSIONER
Appearances:
EF R WOA THE MMISSION THE SEAL OF
[2024] FWC 2351
20
S. O’Sullivan for the Applicant
J. McLean for the Respondent
Hearing details:
2024
Brisbane
16 & 17 July
Printed by authority of the Commonwealth Government Printer
PR778854
1 P.17 of the DCB – Termination Letter.
2 P.459 of the DCB – Letter from Dr Joshua Gabriel.
3 P.50 of the DCB – Witness Statement of Michael Gauci at 46.
4 Ibid P.44 at 9.
5 Ibid P.45 at 12 to 18.
6 Ibid P.50 at 45.
7 Ibid P.46.
8 Ibid P.50 at 21.
9 P.50 of the DCB – Witness Statement of Michael Gauci at 12.
10 Ibid P.46 at 24.
11 Ibid at 25.
12 Ibid P.47 at 25.
13 Ibid at 25 to 26.
14 P.690 of the DCB – Confirmatory Result.
15 P.12 of the DCB – Show Cause Letter.
16 Ibid.
17 P.743 of the DCB – Witness Statement of Benjamin Hanley at 22 to 23.
18 Ibid at 24.
19 Ibid.
20 Ibid at 24 (b).
21 Ibid at 24 (f).
22 Ibid at 25.
23 P.48 of the DCB – Witness Statement of Michael Gauci at 32 & P.455 of the DCB – Patient Consent Form.
24 P.745 of the DCB – Witness Statement of Benjamin Hanley at 28.
25 P.15 to 17 of the DCB – Termination Letter.
26 P.741 of the DCB – Witness Statement of Benjamin Hanley at 13.
27 Ibid.
28 Ibid.
29 P.876 of the DCB – Alcohol and Other Drugs Policy at Appendix B.
30 P.781 of the DCB – Code of Conduct.
31 P.742 of the DCB – Witness Statement of Benjamin Hanley at 17.
32 Ibid at 16.
[2024] FWC 2351
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33 P.851 of the DCB – Bulletin of Policy Update.
34 Ibid.
35 Ibid P.852.
36 P.815 of the DCB – Bulleting regarding Prescription Medicine Declarations.
37 P.902 of the DCB – Policy Circular.
38 P.89 of the DCB – DP World Brisbane Enterprise Agreement 2020 & P.473 of the DCB – DP World Alcohol and Other
Drugs Policy.
39 P.516 of the DCB – Expert Report of Dr Michael Robertson.
40 Ibid.
41 Ibid P.517.
42 Ibid P.517 to 518.
43 Ibid P.518.
44 Ibid.
45 Ibid P.519.
46 P.965 of the DCB – Expert Report of Dr Michelle Williams.
47 Ibid P.978.
48 Ibid P.980 to 981.
49 Ibid P.965.
50 Ibid P.970.
51 Ibid P.980.
52 P.545 of the DCB – Reply Witness Statement of Michael Gauci.
53 Fair Work Act 2009 (Cth) s.382.
54 Raj Bista v Group Pty Ltd t/a Glad Commercial Cleaning [2016] FWC 3009
55 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.
56 Ibid.
57 [2021] FWC 4 at 118.
58 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.
59 P.35 of the DCB – Applicant Submissions.
60 Ibid.
61 Ibid.
62 Ibid P.36.
63 Ibid.
64 Ibid.
65 P.729 of the DCB – Respondent Submissions.
66 B, C and D v Australian Postal Corporation [2013] FWCFB 6191; (2013) 238 IR 1 at [36].
67 P.731 of the DCB – Respondent Submissions.
68 [2015] FWCFB 1033 at [24].
69 P.730 of the DCB – Respondent Submissions.
70 Ibid.
71 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [26]-[27].
72 P.731 & 732 of the DCB – Respondent Submissions.
73 P.742 of the DCB – Witness Statement of Benjamin Hanley at 13.
74 P.965 of the DCB – Expert Report of Dr Michelle Williams.
75 P.472 of the DCB – DP World Alcohol and Other Drugs Policy.
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc3009.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc4.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwcfb4185.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb1033.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb1033.htm
[2024] FWC 2351
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76 P.40 of the DCB – Applicant Submissions at 32.
77 Ibid.
78 [2013] FWCFB 6191; (2013) 238 IR 1 at [36].
79 Ibid.
80 Mr Jake Candido v Scalzo Food Industries [2024] FWC 2129 at [11]
81 P.37 of the DCB – Applicant Submissions at 16 & P.732 of the DCB – Respondent Submissions at 33.
82 P.37 of the DCB – Applicant Submissions at 17
83 Ibid.
84 [1996] IRCA 568.
85 [2010] FWA 8544 at [85].
86 P.733 of the DCB – Respondent Submissions at 35.
87 P.733 of the DCB – Respondent Submissions at 37.
88 P.38 of the DCB – Applicant Submissions at 20.
89 P.733 of the DCB – Respondent Submissions at 38.
90 P.38 of the DCB – Applicant Submissions at 21.
91 P.733 of the DCB – Respondent Submissions at 38.
92 Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249 at (25].
93 P.41 of the DCB – Applicant Submissions at 35 to 37.
94 P.747 of the DCB – Witness Statement of Benjamin Hanley at 34.
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb6191.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwc2129.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2010fwa8544.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2014fwcfb6249.htm
