[2013] FWC 10101 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Vaughan
v
Anglo Coal (Drayton Management) Pty Ltd
(U2013/1509)
DEPUTY PRESIDENT LAWRENCE |
SYDNEY, 24 DECEMBER 2013 |
Application for relief from unfair dismissal.
Introduction
[1] On 10 May 2013 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Mr Stephen Vaughan (the Applicant). against his former employer, Anglo Coal (Drayton Management) Pty Ltd (the Respondent).
[2] The application was filed by the Construction, Forestry, Mining and Energy Union, Mining & Energy Division (CFMEU) who continued to represent the Applicant throughout the various stages of proceedings in the Fair Work Commission (the Commission).
[3] The matter was the subject of conciliation on 11 June 2013, at which it was not resolved, and consequently listed for hearing.
[4] I conducted a programming hearing by teleconference on 23 September 2013.
[5] The matter was heard in Newcastle by me on 25 September. It could not be completed, mainly because of the unavailability on medical grounds of one of the Respondent’s witnesses.
[6] A further telephone programming conference took place on 15 October 2013.
[7] Concluding evidence and submissions were made before me in Sydney on 4 November.
[8] The Applicant and Respondent provided further written material with respect to the Applicant’s earnings to the Commission on 8 and 12 November respectively.
[9] The Applicant was represented by Mr K. Endacott of the CFMEU and the Respondent by Ms R. Taumalolo, its Employee Relations Specialist.
[10] The Applicant relied on oral evidence and submissions and:
● The witness statement of the Applicant which had a number of annexures (Exhibit E2), including the applicable enterprise agreement, the Anglo Coal (Drayton Management) Pty Ltd Enterprise Agreement 2012.
● Written submissions filed on 1 August 2013 (Exhibit T7)
[11] The Respondent relied on oral evidence and submissions and:
● The witness statement of Darren Pisters, the Mine Manager and a supplementary statement. (Exhibit T2)
● The witness statement of David Graham, the Overburden Superintendent at the mine.(Exhibit T5)
● David Vaughan, the Health and Safety Officer at the Drayton Mine lodged a witness statement but was unavailable on 4 November and this evidence was given by Shannon Smith-Eckman, the Health and Safety Co-ordinator at the mine who was cross-examined. (Exhibit T4)
● Written submissions filed on 21 August 2013.
Background
[12] The Applicant was employed as an operator at the Drayton mine in the Hunter Valley of New South Wales from 17 November 2008. He was notified of his dismissal on 30 April 2013 and the dismissal took effect on that date.
[13] In his F2 form, the Applicant stated the reasons for the dismissal were:
● Failing a drug test even though company policy does not provide for dismissal for a “first fail”.
● The employer should have instituted a disciplinary warning and performance management.
[14] In its F3 form, the Respondent stated the reasons for dismissal were:
● Dishonesty during the investigation into a positive drug and alcohol test not because the Applicant failed the test.
● The Applicant denied taking prohibited drugs during the investigation until he was informed that he had tested positive for methamphetamine. This was contrary to his declaration that he had only been taking cold and flu tablets.
● On 5 April the Applicant had a random drug and alcohol screening. Prior to the screening the Applicant filled in a form asking if he had taken any prescription/non-prescription drugs in the last 2/3 weeks. His response was that he had taken cold & flu tablets. The test was non-negative for methylamphetamine. A further laboratory test was positive for amphetamine and methylamphetamine. The pathology report was attached to the letter.
● At a meeting on 11 April with management the Applicant continued to say that he had only taken cold and flu tablets until he was read the pathology report. At this point he had admitted he had taken an unknown substance at a party on Saturday night.
● The Respondent sent the Applicant a “show cause” letter on 16 April requiring him to attend a meeting on 26 April to “show cause as to why your employment should not be terminated for returning a positive test in breach of Drayton’s Alcohol & Other Drugs Procedure and for your dishonesty in responding to queries about what drugs you have consumed”.
● The Respondent sent the Applicant a letter of termination on 30 April which stated:
“As a result of your dishonesty during the course of the investigation your employment with Anglo Coal/Drayton Management Pty Ltd is terminated, effective immediately.”
● The letter also referred to the 26 April meeting and alleged that the Applicant had admitted his dishonesty during the investigation process.
● The letter also stated:
“Your dishonesty during the investigation means that the Company cannot be confident that you will be honest with it in the future. You have therefore destroyed the relationship of trust and confidence between the company and yourself.”
● Finally, the Applicant’s conduct was stated to be contrary to the Respondent’s Code of Conduct that employees “operate in an honest and ethical manner”.
Protection from Unfair Dismissal
[15] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.
[16] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(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.
[17] There is no dispute, and I am satisfied, the Applicant has completed the minimum employment period, and whilst his earnings are above the high income salary cap at $150,412 per annum (Transcript PN349) he is covered by an enterprise agreement. Consequently, I am satisfied the Applicant was protected from unfair dismissal.
Was the dismissal unfair?
[18] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Was the Applicant dismissed?
[19] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
[20] There is no dispute that the applicant was dismissed, the mining company is a large employer and this is a case of summary dismissal.
Harsh, unjust or unreasonable
[21] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal 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.”
Approach of the Commission
[22] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:
“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”
[23] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:
“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”
[24] The Applicant submits the dismissal was harsh, unjust or unreasonable because:
● The Applicant complied with the Respondent’s policies in taking the drug and alcohol test on 5 April 2013. He also complied with the subsequent confirmatory laboratory test.
● Pursuant to the Drayton Mine Counselling & Disciplinary Policy the Applicant should have been dealt with under the Respondent’s Level 4 disciplinary procedure with a warning. Summary dismissal was not the specified punishment for failure of a drug test.
● The Applicant had never been disciplined prior to this incident or failed a drug/alcohol test.
● The Applicant was not given an opportunity to justify why he should not be terminated.
● The Applicant was not given an effective opportunity to respond to the reasons for dismissal because the Respondent withheld the test results.
● At the meeting on 11 April, both the Applicant and the CFMEU lodge representative asked for a copy of the test results but were not given it.
● After being told that the reason he had tested positive, the Applicant admitted:
“I had done something silly at a party (on Saturday night 4 April) and taken a capsule but I do not know what was in the capsule I had taken.”
(Exhibit E2 pp 3 - 4)
● The Applicant was not given the pathology report until it was attached to the correspondence of 16 April.
● Proper weight was not given to the stress the Applicant was under by the Respondent at the 26 April “show cause” meeting or the 30 April meeting following which he was summarily dismissed.
● The Applicant admits (at page 5 of his witness statement, Exhibit E2) on the basis of subsequent enquiry of his friends, that what he took contained methylamphetamine, but says that the Respondent’s policy did not provide for dismissal for one test failure.
● The “Drayton Alcohol and Other Drugs Procedure” which was attached to the Applicant’s witness statement (Exhibit E2) provides, at page 8, for a third positive result over two years to be dealt with in accordance with the disciplinary policy. No mention is made of dismissal.
[25] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:
● The Applicant was summarily dismissed from his employment on 30 April 2013 as a result of dishonesty, not because he failed one drug test.
● The Applicant was dishonest in filling out the testing form on 5 April.
● On 11 April, the Applicant was asked twice whether he had taken anything else. He responded “no, just cold and flu tablets”. It was only when he was told that his sample was positive for methylamphetamine that he admitted that he took something else. The Respondent denies that a copy of the laboratory tests was requested.
● The “show cause” letter of 16 April to the Applicant attached the pathology results giving the Applicant ample opportunity to respond.
● The Applicant did not take responsibility for his actions or show remorse at the 26 April meeting.
● The Respondent admitted that it was its usual practice to issue a Level 1 warning for a first contravention of the Drug and Alcohol procedure. The Applicant’s dishonesty in failing to declare the drug constituted a serious breach of its Code of Conduct, destroyed the relationship of trust and confidence and justified summary dismissal.
● The Respondent took into account the Applicant’s good work history and the fact that he was “going through a difficult personal time”.
● The Respondent had numerous opportunities to declare that he had taken the drug at the party and also to respond to the allegation that he had dishonestly withheld relevant information.
● The Respondent was entitled to hear whether the Applicant could explain the positive test result, and in any event, he had the pathology report on 16 April, well before the termination meeting on 26 April.
[26] I will now consider each of the criteria contained in s.387 of the Act separately.
Valid Reason - s.387(a)
[27] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.
[28] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”
[29] In Parmalat Food Products Pty Ltd v Wililo, (2011) FWAFB 1166, the Full Bench held:
“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[30] The Applicant was dismissed because of his lack of openness during the interview process. Most of the focus in the evidence and submissions was, appropriately in my view, placed on this and whether dismissal was an appropriate response by the employer.
[31] There was not a great deal of conflict over the evidence. There are, however, two matters which need to be dealt with.
[32] Firstly, Mr Endacott argued that there was a divergence between the standard which the Applicant was tested against, the Australian Standard AS4308 and the standard specified in the Respondent’s policy statement which was higher.
[33] Mr Pisters at PN503 admitted that there was an error in the company document and that it had always tested to the Australian standard level.
[34] Ms Smith-Eckman gave evidence as to the Respondent’s testing practices which I accept (Transcript PN954 - 982, PN1018 - PN1089).
[35] Some confusion was created by the different measurements referred to in the Respondent’s policies and by different measurements in respect of cup tests and the more reliable subsequent laboratory test.
[36] However, there was no dispute that the Applicant had a reading at the initial cup test which justified the subsequent laboratory test and that the laboratory test found a level of methylamphetamine above the Australian Standard. I find that this was the appropriate standard and the Respondent was entitled, indeed obliged, to take action once it had those results.
[37] Secondly, there was some disagreement as to when the Applicant received written notification of the test results. The Applicant says that he and the union delegate asked for a copy of the test results at the 11 April meeting and that the Respondent’s representatives refused to provide them. He admits that Mr Wynter reads from the pathology report and advised that the Applicant had tested positive for methylamphetamine.
[38] Mr Graham gave the following evidence about the 11 April meeting:
“You were in attendance on 11 April where Mr Winters and yourself met with Mr Vaughan and Mr Skillen?---And Mr Hollis, yes.
And Mr Hollis, yes. What role does Mr Whitton perform again?---Mr Winter?
Yes, Winter, sorry?---He was at that stage our HR superintendent. He's my first point of call with any HR issues or anything which I'm not sure of, that's the first person I talk to.
Mr Winter - was Mr Winter conduct the meeting?---Correct, yes.
At the meeting Mr Winter had with him did he not DG2 to your statement?
---Correct, yes.
He had that in front of him on the table?---Correct, yes.
Mr Vaughan, Mr Skillen and Mr Hollis would have seen that on the table?---Yes, they would have.
Did Mr Winter give that document to Mr Vaughan?---No.
He didn't. Did he have more than one copy with him?---He had the one copy on the table with him.
This was the report from the lab about the results?---(Indistinct) this one yes.
Had you spoken with Mr Winter prior to the meeting about whether or not that would be provided?---No, I did not. When I had the meeting with Mr Winter I spoke about who was going to be asking the questions, who was going to be taking which lead and that was the only conversation I had prior to the meeting I had with Stephen Vaughan, Frank and Justin Hollis.
You do agree, do you not, that it's the policy - the drug and alcohol policy that sets out whether or not someone has passed or failed or breached the drug and alcohol policy?---Correct, yes.
You will agree, will you not, that the manner in which it is established as an issue of fact or proof positive is the results that come back from the lab?---I agree, yes.
So once the results are back there is no doubt about whether or not the person passed or failed the drug test?---That's why we have them, yes.
So when Mr Vaughan had the document in front of him, you'll agree that - - - ?
---Mr Vaughan didn't have the document in front of him.
I apologise. Mr Winter, sorry about that, Mr Graham. Yes, when Mr Winter had it in front of him, you'd seen it as well?---I did not read it but it was there with him, yes.
When Mr Winter had it, Mr Winter had the actual proof from the process required under the drug and alcohol procedure about whether or not Mr Vaughan had passed or failed?---Correct.
And about exactly what substance he had in his system?---Yes.
So when Mr Winter was asking Mr Vaughan could he explain it, Mr Winter already knew the answer didn't he?---Correct.
So he wasn't inquiring to establish - the inquiry wasn't to establish anything as an issue of fact, was it, he already knew the facts?---He knew the facts but I think it was more so for the accountability of Mr Vaughan to actually say what had actually transpired before the meeting.
Mr Vaughan asked for a copy of the results?---No, he did not.
You will agree that there was a request made for the results?---A request was made from Mr Skillen what were the results.
If I've got this right, Mr Winter was sitting there with a document in front of him?---Yes.
Mr Skillen said, "What are the results?"?---Correct.
You will agree at that time that the company didn't provide the results?---They wasn't asked to see a copy of the results, Mr Skillen asked what were the results, no one at any time actually asked can we please have a look at the results. As you stated we already knew it was positive because we had the lab results back, this was actually to see if there was any accountability why the question was asked, do you have anything to tell us?
I'll take you back to the question. Mr Skillen asked what the results were?
---Correct.
From your version of events. The company didn't provide it at that time, did they?---It wasn't asked for.
They didn't provide what the results were, did they?---Not at that time, no.
You will agree when the results were requested by Mr Vaughan or his representative there was a refusal in the sense it wasn't provided?---No, there was no refusal.
Was it provided or not at that time?---No, it was not provided.
Okay?---Because he was not asked for a copy of the results.
But he asked for the results, let's just go back to your version that he asked for the results, Mr Hollis?---Mr Skillen, correct.
Yes?---Asked what were the results.
The company refused to provide them at that time?---Well, we didn't refuse to provide them.
Did you provide them or not?---No, we did not, no.
If you didn't provide them when they were asked for then you were refusing at that time to provide them, weren't you?---No, I don't think so, no.
Okay, well let's just say - well, (indistinct) the results were asked for by Mr Vaughan and the company didn't provide them at that time?---The results were asked for and as I said to you Mr Winter then asked if there was anything else wanted to say but not at any time was a copy of the results actually asked for.
THE DEPUTY PRESIDENT: But did you say no, we're not going to provide them to you?---Never.
MR ENDACOTT: But you just didn't provide them.
THE DEPUTY PRESIDENT: You didn't provide them?---Correct.”
(Transcript PN1198 - PN1237)
[39] I accept, on the balance of probabilities, the evidence given by Mr Graham above. It is consistent with the Respondent wanting to establish the Applicant’s veracity subsequent to receiving the test results.
[40] The 16 April “show cause” letter to the Applicant attaches the pathology laboratory report. There was some doubt as to when the Applicant received that letter as he was on leave in Queensland but it is clear he received it well before the 26 April meeting. (Transcript PN432 - 456) The report does not contain the details of readings.
[41] I find that the Respondent was obliged to treat the test report seriously and question the Applicant about it.
[42] The evidence was that the Applicant had not had positive tests in the employ of the Respondent but that he had when he was employed by a contractor at the mine, Damstra (Transcript PN75 - PN80).
[43] The Respondent was obliged to place an emphasis on health and safety protection in the context of the coal mining industry.
[44] It was also entitled to seek from the Applicant an explanation of the test results which exceeded the standard.
[45] It is true that the Respondent had a disciplinary policy which had a warning as a first step but this also maintains the parallel right to summary dismissal. The application of the policy does not mean that the Respondent was not entitled to investigate what happened and seek an explanation from the Applicant.
[46] The Respondent’s representatives did not volunteer the test results at the 11 April meeting but this was consistent with giving the Applicant the opportunity to provide an explanation.
[47] Mr Pisters gave the following evidence:
“MR ENDACOTT: I put to you there was a deliberate decision not to provide the information of the results to Mr Vaughan prior to asking Mr Vaughan if he could explain the positive result. I put to you that was a deliberate decision on the part of the company. Do you agree or not?---There was a decision to ask for an explanation, and then to explain the results.
And not to provide him with the details of the results before he was required to explain it. That's correct, isn't it?---On the first occasion?
Yes. In fact I think you agree that Mr Vaughan - you understand that Mr Vaughan answered that initial question on the basis of he believed that's what the results that the Cold and Flu had been detected. So at that point he wasn't lying or deceiving the company, was he?---On the first occasion.
No. In fact the company - wouldn't you say the reverse is that in making a deliberate decision not to give him the results, was trying to, you know, trick him, trying to get some advantage in its investigation of the matter. You agree with that?---No, I do not agree with that.
You agree, if the notes are right, of Mr Wynter, that in fact the company didn't provide that information even after it was requested of his representative, and even after he'd asked for that information before he should provide an explanation about what the positive results might be?---I'm sorry, I've thought too much about the question. Could you please repeat it?
Okay. You do agree that you indicated - you do agree that not only was there a decision not to provide - I put this to you. Not only was there a decision made not to provide Mr Vaughan with the pathology reports, that it still was not - that information was still not provided even after his representative had requested it as well. So it wasn't just, "We didn't give it to him," but when those results had been requested, that they still weren't provided based on the notes?---Yes.
Now, you agreed earlier in my cross-examination of you that it's the drug and alcohol that establishes proof positively, for want of a better description, whether or not someone has breached the procedure?---Yes.
It's that process that also, as I think you agreed, is - it's the results from that laboratory test that is definitive and final, for example, about whether or not someone has failed the - you know, has failed the test. You agree with that?
---That's correct.
So I put to you that there is no need to ask an employee in the - there was no need to ask for Mr Graham or Mr Wynter to ask Mr Vaughan whether he'd taken anything at the meeting on 11 April, because the results the company had that had not given to Mr Vaughan was proof positive he had taken it?---I don't agree. It was a requirement to ask.
I put to you that the only purpose for ever asking someone whether or not they had taken the substance that had now been found under the procedure to be contrary to the policy is just to see if they're going to tell the truth or lie about it. Is that right? Is that the only reason?---It's whether the individual has taken some personal accountability for his or her actions is the reason.
Is that the reason why you asked? To see if they had been taking personal responsibility for their actions? That's a yes, is it?---Yes.
Isn't it the policy that sets out what happens to them if they breach it? Isn't that right?---The policy - yes.
So your process following wasn't - was to see whether - to make some assessment whether or not he was personally accountable for what he'd done?---The process was an investigation process to understand the misconduct.”
(Transcript PN802 - PN814)
[48] And again at Transcript PN826 - PN831
“So your view is that once you test, you have to go into the counselling and disciplinary procedure?---My view is once you've tested for illegal substances, you go into investigating misconduct and not into the counselling procedure, which was the next step.
Then it says at the next point, "In the event of a repeated positive result within two years is recorded an individual test, then the person will be referred to the on-site employee assist program, and the Drayton Mine counselling and disciplinary procedure may be applied"?---Correct.
So under the procedure, it's not mandatory that he be even be dealt with under the counselling or disciplinary procedure?---That's right.
Okay. Now, in this case he wasn't dismissed for failing the drug test, was he? He was dismissed for not saying he'd taken drugs at the meeting of 11 April?---Yes.
You will agree with this, won't you? That the process for determining whether someone takes drugs or has failed the test is determined by the provision of a urine sample and the lab results. You'll agree that?---Yes.
He did follow that process, did he not?---Yes.”
[49] I accept this evidence.
[50] I also accept Mr Pisters account as to why the Respondent decided to dismiss:
“THE DEPUTY PRESIDENT: Can I ask you this (indistinct) answer or not I suppose. What would have been the appropriate time in your view for the applicant to fess up, if I can put it that way? So in other words, when would have you thought, if the applicant had indicated that he may have taken some other substance, when would have been the time that he should have indicated that in your view, that would have meant that you wouldn't have taken the action that you did take?---In the meeting with Dave Graham and Ed Wynter when Ed Wynter put to Mr Vaughan that he had failed the test on methamphetamines and amphetamines was the time when Dave needed to tell about the pill on the Saturday night, but at that point in time he continued to say, "No. It was just Cold and Flu tablets." It was clear in my mind at that point in time.
Okay, thanks.
MS TAUMALOLO: May I ask one further - - -
THE DEPUTY PRESIDENT: Sure, yes.
MS TAUMALOLO: If at the show-cause meeting where - after he had been provided with the written document that made it very clear what the results were - - -?---Yes.
- - - if he had, even at that point indicated that he took any accountability for what he took other than he didn't know what he took, was there a possibility - or what would your view be around the potential outcome?---If the level of accountability in the show-cause meeting had been very clear around the taking of the drug, and depending on what level was demonstrated in the meeting, it could have been a decision point changed there. The show-cause meeting did not demonstrate to me, you know, clear accountability around what happened. It was more around, "I have got a legal right not to have to disclose information." I was looking for accountability and honesty for the whole process, and I didn't see clearly accountability and honesty.”
(Transcript PN892 - PN897)
[51] In all the circumstances of this case, I find that there was a valid reason for dismissal. I do so because:
● The uncontested evidence establishes the Applicant tested above the Australian Standard for an illicit substance.
● The Respondent was entitled to seek an explanation from the Applicant for the test results.
● It sought that explanation in an appropriate manner.
● The Applicant was not open and honest in his explanation, although he was given a number of opportunities to tell the truth.
● The Applicant’s conduct in failing to declare, represented a serious breach of the relationship of trust and confidence and justified summary dismissal.
Notification of the Valid Reason - s.387(b)
[52] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:
“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.” Ibid at 151.
[53] I find that the Applicant was given sufficient notification of the reason for the dismissal and the likely consequences of his failure to disclose before the dismissal took place.
[54] The 16 April “show cause” letter stated clearly that the positive test and “your dishonesty in responding to queries about what drugs you have consumed” were the reasons that dismissal was under consideration.
[55] These reasons were expanded upon at the meetings on 26 and 30 April.
Opportunity to Respond - s.387(c)
[56] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.
[57] I find that the Applicant had a real opportunity to respond to the reasons for dismissal because:
● The 16 April letter clearly set out the issues.
● He had it and the pathology report well before the 26 April meeting.
● He had an opportunity of convincing the Respondent that dismissal was not appropriate at that meeting and, to a lesser extent, at the 30 April meeting.
Unreasonable refusal by the employer to allow a support person - s.387(d)
[58] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.
[59] The CFMEU delegates were in attendance at all relevant meetings with the Applicant.
[60] The Applicant did not submit that this sub-section had not been complied with.
Warnings regarding unsatisfactory performance - s.387(e)
[61] This is not in issue as the dismissal was for failure to disclose following the test result.
Impact of the size of the Respondent on procedures followed - s.387(f)
[62] The Respondent is a large mining company. I find the size of the Respondent’s enterprise did not impact on the procedure followed in effecting the dismissal.
Absence of dedicated human resources management specialist/expertise on procedures followed - s.387(g)
[63] There was no lack of human resources expertise available to the respondent.
Any other matters that the FWC considers relevant
[64] The Applicant had been employed by the Respondent for four and a half years and appears to have a good work record. There was also some reference to personal difficulties that he was undergoing. However, I do not consider these factors should outweigh the other considerations.
[65] Having considered each of the matters specified in s.387, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.
DEPUTY PRESIDENT
Appearances:
K. Endacott for the Applicant.
R. Taumalolo for the Respondent.
Hearing details:
2013
Sydney:
September 23 (telephone conference)
October 15 (telephone conference
November 4.
Newcastle:
September 25.
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