DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Kylie Desmond
v
Lyndons Pty Ltd T/A Lyndons
(U2021/1388)

Application for an unfair dismissal remedy – Drug and alcohol testing – Refusal to comply with direction – Whether direction lawful and reasonable – Finding that direction was lawful and reasonable – Applicant’s refusal to comply was a valid reason for dismissal – Applicant afforded procedural fairness – Dismissal not unfair – Application dismissed.

Overview

[1] Ms Kylie Desmond (the Applicant) applies under s. 394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy in relation to the termination of her employment by Lyndons Pty Ltd (Respondent/Company). The Applicant was employed by the Respondent as an Internal Salesperson from 1 September 2016 to 1 February 2021. Initially the Applicant was employed at the Respondent’s Salisbury Branch and later transferred to the Kunda Park Branch at Maroochydore, where she was working at the time of her dismissal. The Applicant was dismissed for what was described as a continued refusal to follow a lawful and reasonable direction to provide a urine sample for the purpose of a drug and alcohol screening test in accordance with the Respondent’s Drug and Alcohol Policy (Policy), despite being given several opportunities to comply.

[2] The Applicant’s case centres on her claim that she refused to submit to the Respondent’s “invasive” drug and alcohol testing process by providing a urine sample, because at the relevant time, she was suffering from a personal medical condition. The Applicant also states that she was happy to submit to an oral swab test to confirm that she was fit to perform her duties and that this is a method of testing provided for in the Respondent’s Policy. Accordingly, the Applicant maintains that she did not breach the Policy and that her refusal to provide a sample was reasonable. Further, the Applicant contends that she informed persons, including the testing officer and managers of the Respondent, of her reasons for refusing to provide a urine sample including the nature of her medical condition and that the Respondent failed to consider that reason and to have a discussion with her, before deciding to threaten her employment and ultimately to dismiss her. The Applicant seeks compensation for what she contends was her unfair dismissal.

[3] The matter was listed for a conciliation conference before a Fair Work Conciliator and was not resolved and was then allocated to me for determination. I decided to conduct a hearing on the basis that there were disputed issues of fact. The Respondent was represented by Mr T Spence of Counsel instructed by Mr S Sciacca of Optimum Legal. The Applicant represented herself, assisted by a support person, her brother Mr Shaun Desmond. Permission was granted for the Respondent to be legally represented on the basis that I was satisfied that the matter involved complexity given that it concerned drug and alcohol testing and whether the Applicant had refused to comply with a lawful and reasonable direction in this regard. I was also satisfied that granting the Respondent permission to be legally represented would enable the matter to be dealt with more efficiently having regard to its complexity.

[4] The Applicant gave evidence on her own behalf. The Applicant’s statement also included submissions 1 but was tendered to into evidence with some objections made by the Respondent’s representative being noted. Evidence on behalf of the Respondent was given by:

•  Ms Adele Elizabeth Arrow, Testing Technician for Drug Detection Au; 2

•  Mr Craig William Bartkowski, Owner and Managing Director of Drug Detection Au; 3

•  Ms Amanda Cobb, second in charge (2IC) of the Respondent’s Maroochydore Branch; 4

•  Mr Mark James Lee, Branch Manager of the Respondent’s Maroochydore Branch; 5 and

•  Mr Robert Andrew (Andrew) Rogers, Chief Executive Officer of the Respondent’s Maroochydore Branch. 6

[5] Section 396 of the FW Act requires that four specified matters must be decided before the merits of the application may be considered. There was no contest between the parties about any of those matters. I find that

(a) the application was made within the period required by s.394(2);

(b) the Applicant was a person protected from unfair dismissal;

(c) Lyndons was not a “small business employer” as defined in s.23 of the FW Act; and

(d) the dismissal was not a case of genuine redundancy.

Legislation

[6] In deciding whether a dismissal was unfair on the grounds that it was harsh, unjust or unreasonable, the Commission is required to consider the criteria in s.387 of the Act, as follows:

(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 FW Commission considers relevant.

[7] The employer bears the onus of establishing that there was a valid reason for a dismissal.⁷ A valid reason for dismissal is one that is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.”⁸ The reason for dismissal must also be defensible or justifiable on an objective analysis of the relevant facts,⁹ and validity is judged by reference to the Tribunal’s assessment of the factual circumstances as to what the employee is capable of doing or has done.¹⁰

[8] To determine whether there was a valid reason for a dismissal relating to conduct, the Commission must determine whether, on the balance of probabilities, the conduct allegedly engaged in by the employee actually occurred, on the basis of the evidence before the Commission. The test is not whether the employer believed on reasonable grounds, after sufficient inquiry, that the employee was guilty of the conduct. Further, to constitute a valid reason for dismissal, the Commission must assess whether the conduct was of sufficient gravity or seriousness to justify dismissal as a sound, defensible or well-founded response.¹¹ In finding that there was a valid reason for dismissal, the Commission is not limited to the reason relied on by the employer.¹² Nor is the employer limited to relying on the reason given to the employee at the time of the dismissal to establish a valid reason for a dismissal although this may have implications for the considerations in s. 387 going to procedural fairness.

[9] The matters in s.387 go to both substantive and procedural fairness and it is necessary to weigh each of those matters in any given case, and decide whether on balance, a dismissal is harsh, unjust or unreasonable. A dismissal may be:

Harsh - because of its consequences for the personal and economic situation of the employee, or because it is disproportionate to the gravity of the misconduct;

Unjust - because the employee was not guilty of the misconduct on which the employer acted; and/or

Unreasonable - because it was decided on inferences that could not reasonably have been drawn from the material before the employer.¹³

[10] Also relevant in the present case is the observation of a Full Bench of the Commission in DP World v Lambley 14 that:

“…In circumstances where a valid reason is found to exist, and procedural fairness has been afforded, significant mitigating circumstances are required in order to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. In order to give those factors appropriate weight, they need to be seen as such and balanced against factors that might otherwise lead to the characterisation of the dismissal as harsh, unjust or unreasonable. The balancing of factors involves discretion, but a conclusion must be reached after giving full effect to the findings on all relevant circumstances. Different employers may approach a misconduct matter differently and take different disciplinary actions. A tribunal member determining whether a dismissal is harsh, unjust or unreasonable does not stand in the shoes of the employer and determine what action they would take in the circumstances. Only if the employer’s disciplinary actions are judged to lie outside the description of a reasonable and just response to the relevant conduct and are disproportionate, should a finding of unreasonableness or injustice be made.” 15

Issues in dispute

[11] The present case concerns whether the Applicant’s refusal on 1 February 2021 and thereafter, to provide a urine sample for the purposes of alcohol and drug screening conducted by the Respondent’s approved testing provider in accordance with its Policy, was a valid reason for dismissal. This involves considering whether the Applicant refused a lawful and reasonable direction that she undertake a drug test involving the taking and analysis of a urine sample. Generally, such refusal will be a valid reason for dismissal unless there are circumstances that mitigate the refusal. A dismissal for refusal to comply with a lawful and reasonable direction may also be found to be unfair (notwithstanding that it is a valid reason for dismissal) because of procedural failures or because of the personal circumstances of the employee.

[12] In relation to unfair dismissal cases involving a substantial or wilful breach of policy, a Full Bench majority in B, C and D v Australian Postal Corporation stated that: “a substantial and wilful breach of a policy will often, if not usually, 16 constitute a ‘valid reason’ for dismissal. The full Bench went on to state that: “[a]ny notion that a clear and knowing breach of policy will always provide a valid reason for a dismissal that will not be harsh, unjust or unreasonable, no matter the employee’s length of service and other circumstances, is inconsistent with basic principle. Every case must be assessed by reference to its particular circumstances.”17

[13] It is well established that in deciding whether there is a valid reason for dismissal, the Commission does not stand in the shoes of the employer and determine whether the employer should have adopted a particular policy or a particular process, based on the Commission’s view that this would have been fairer or more reasonable and neither can the Commission require that the employer change a policy. Rather, in determining whether a refusal to comply with a direction in relation to a policy was a valid reason for dismissal, the Commission is principally concerned with whether the direction is lawful and reasonable rather than with the lawfulness and reasonableness of the policy per se, although this may be relevant to the question of whether a direction to comply with the policy is lawful and reasonable.

[14] The Applicant in the present case did not contend that the Respondent’s Drug and Alcohol Policy was unlawful and unreasonable per se. Rather, the Applicant took issue with the way the Policy was applied, both to the Applicant and to other employees. In relation to her own circumstances, the Applicant essentially contended that the Policy allowed her to choose to be tested by an oral swab rather than a urine sample. The Applicant also asserted that the direction to provide a urine sample for the purpose of drug and alcohol testing, was not lawful and reasonable and that she had reasonable grounds to refuse to comply, although the basis upon which the Applicant asserted that the direction was unlawful was not apparent.

[15] In Briggs v AWH Pty Ltd 18, a Full Bench of the Commission considered an appeal by an employee dismissed for refusing to take a urine test. The Full Bench observed that industrial tribunals have accepted that the implementation of a program of random and targeted drug testing is a reasonable and legitimate employer response to the risk to safety posed by employee drug use, even if that involves some interference with employee privacy. The Full Bench also noted that no consensus has developed in decisions of industrial tribunals as to what is the most appropriate method of testing and illustrated this point by reference to various decisions where the fairness and reasonableness of testing regimes was considered.19

[16] The decisions referred to by the Full Bench concerned resolution of disputes between employers and employees about the introduction of, or changes to, drug and alcohol procedures in particular workplaces. The Full Bench in Briggs noted that it was not necessary to resolve the controversy of urine testing versus saliva testing in that case and that the employee concerned contended that his dismissal was unfair because the direction to take the urine test, whilst lawful, was not reasonable and he was therefore not required to comply with it.

[17] In the present case, I am also dealing with an unfair dismissal application and not a dispute about a particular testing regime under a dispute settlement procedure. The issues raised by the Applicant in the present case do not concern whether the Respondent’s Drug and Alcohol Policy is itself lawful and reasonable. Rather the Applicant contends that the requirement that she undertake a urine test on 1 February 2021 was not lawful and reasonable and that her request for an alternative testing process to be used to determine her fitness for work, was not a refusal to comply with the Policy. Accordingly, the terms of the Policy and the testing regime it provides for, are relevant only to the question of whether the direction to the Applicant to comply with the Policy was lawful and reasonable.

[18] The standard test by which the common law determines the lawfulness of a direction given by an employer to an employee was considered by the High Court in R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (Darling Island Stevedoring). 20 Relevantly, Dixon J stated:

“If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable.  … But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.” 

[19] Starke J observed that: “…whether the instruction be or not be reasonable…is a question of fact having regard to all the circumstances and falls for determination accordingly.” 21 Similarly, McTiernan J stated that: “Reasonable means ‘reasonable in all of the circumstances of the case’ ”22 and went on to make findings to the effect that where compliance with a direction could place the wellbeing or personal safety of an employee at risk, refusal may not be unreasonable. In McManus v Scott Charlton23 Finn J after citing Darling Island Stevedoring, observed that the need for a limitation is patent because employment does not entail the total subordination of an employee’s autonomy to the commands of the employer.24 It was also stated in that case that while a direction may be lawful, it may not in fact be binding, because of the separate requirement that the actual direction given must itself be reasonable.25 However, as the Full Bench in Briggs v AWH observed:

“The determination of whether an employer’s direction was a reasonable one … does not involve an abstract or unconfined assessment as the justice or merit of the direction. It does not need to be demonstrated by the employer that the direction issued was the preferable or most appropriate course of action, or in accordance with ‘best practice’ or in the best interests of the parties.” 26

Evidence

The Drug and Alcohol Policy

[20] The Applicant’s evidence is that she has been a trustworthy and loyal employee to the Respondent during the 4.5 years of her employment. The Applicant tendered her employment contract and said that it does not state that she would be subjected to drug and alcohol testing. Under cross-examination, the Applicant agreed that she was required by her written contract of employment to comply with any policies and procedures the Company may implement, as varied from time to time in its discretion. The Applicant also agreed that the contract stated that her employment could be terminated for failing to carry out a lawful and reasonable direction and that a breach of the requirement to follow Company policies could be considered serious misconduct. 27

[21] It is not in dispute that the Respondent had a Drug and Alcohol Policy (the Policy) which provides that the Respondent may test for cause or undertake targeted, post incident or near miss, or random testing. Random testing is defined in the Policy as the selection of a worker or a group of workers randomly by the Respondent or an authorised officer, to undergo a drug screen test and/or alcohol screen test. The terms “Alcohol screen test” and “Drug screen test” are respectively defined to mean:

“…any analytical procedure or test which is carried out on a worker to determine the presence and/or the concentration of [alcohol/any drug] (including but not limited to a breath test, urine sample, oral swab and blood test). These procedures are not limited to those which presently exist. As new technology is developed these may also be used for alcohol testing purposes.”

[22] The purpose of the Policy is stated to be aimed at preventing or minimising any risk of injury or harm to the health and safety of the Respondent’s workers, or others at the workplace, from use of alcohol or drugs. The Policy applies to all employees of the Respondent and in all of its workplaces. Section 11.3 of the Policy provides that a worker who is required to undertake a drug screen test and/or alcohol screen test will be requested to sign a consent form before taking such test. The purpose of monitoring and examination is said at s. 11.4 of the Policy to be ensuring that the productivity, health and safety of personnel, to apply the Policy and for disciplinary purposes.

[23] Breach of the Policy, dealt with in s. 12, may result in disciplinary action up to and including summary termination of employment or referral to an Employee Assistance Program and or other referral source, for counselling, treatment or rehabilitation for drug or alcohol dependency. Section 13 of the Policy provides that an employee who notifies the Company of a drug or alcohol problem will be encouraged to complete a rehabilitation program or undergo counselling.

[24] Under cross-examination, the Applicant agreed that she signed a document acknowledging that on 1 September 2016, at the commencement of her employment, she had received and understood the effect of the Company’s Drug and Alcohol Policy; that she would comply with the Policy; and that she understood that there may be disciplinary consequences if she failed to do so, which may result in the termination of her employment. The Applicant accepted that she had seen the Policy and read the section in relation to the consequences of a refusal to test but maintained that she had done so after the events of 1 February 2021. The Applicant was also shown a current iteration of the Policy and agreed that it is effectively identical in terms of relevant provisions, to the version of the Policy that she acknowledged having received and understood, upon commencement of her employment. The Applicant also said that she did not have access to the Respondent’s policies until 2020 when the Respondent introduced an intranet system.

[25] In response to the proposition in cross-examination that this assertion was contrary to the declaration that she signed on commencing employment, the Applicant said that she signed numerous documents at the time she commenced employment but was not provided with a copy of the Policy at any time.

[26] Mr Bartkowski’s business originally operated as part of a franchise organisation until the end of 2017 when it rebranded and continued to operate as an independent supplier of drug and alcohol risk management. Mr Bartkowski was first engaged by the Respondent in December 2013 to develop its Drug and Alcohol Policy and under the franchise, was responsible for testing the sites within his territory. In December 2018, following the establishment of his business, Drug Detection Au, Mr Bartkowski was asked to take over the management of all of the Respondent’s drug and alcohol risk management commencing in January 2019. According to Mr Bartkowski, the policy developed specified urine testing as the testing method to be used for all testing and has been employed since then.

[27] Mr Bartkowski does not know the Applicant personally. In 2019, he conducted additional training for the Respondent to account for new staff and to refresh existing staff on the drug and alcohol testing regime. On 20 March 2019, a training session was conducted by Mr Bartkowski at the Respondent’s Salisbury Branch. The Applicant attended the training session as evidenced by an attendance sheet signed by her, tendered by Mr Bartkowski. 28 Mr Bartkowski said that during the training session he detailed the testing process and provided reasons as to why his Company recommends and the Respondent uses urine as the preferred test matrix. Mr Bartkowski also said that he made it clear that urine would continue to be the test method for the Respondent.

[28] The Applicant gave evidence of having attended the training conducted by Mr Bartkowski in 2019. The Applicant said that at the end of the session, in response to an invitation to ask questions or raise issues, the Applicant states that she asked “why Lyndons chose to have such an invasive method of testing when swab testing was used by the police, mining companies and the majority of the building and construction industries.” According to the Applicant, the trainer’s response was to state that it costs the Company the same amount to swab test as it does to urine test. The Applicant acknowledged that she signed a form at the end of the training but maintained that at no time were participants given a copy of the Policy during the training.

[29] Under cross-examination, the Applicant was shown a PowerPoint presentation which was said to have been used by Mr Bartkowski when he conducted the training about the Policy attended by the Applicant on 20 March 2019 and said that she remembered a PowerPoint Presentation being shown during the training. The Applicant agreed that she had stated her opinion at the end of the training session that the method of testing used by the Respondent was invasive. The Applicant also agreed that she understood that the Respondent generally uses urine testing. Further, the Applicant agreed that she understood that the consequences of refusing a test would be treated as failing the test and that disciplinary procedures would take effect. The PowerPoint presentation was later tendered by Mr Bartkowski who gave evidence to the effect that this was the presentation he had made at the training attended by the Applicant in March 2019. 29

[30] Mr Bartkowski gave evidence about testing conducted at the Respondent’s Maroochydore Branch on 5 occasions since Drug Detection Au took over the management of testing for the Company. In September 2020, as a result of testing at a number of Branches, the Respondent decided to test all staff. On 6 October, Drug Detection Au returned to the Maroochydore Branch of Lyndons at the Company’s request. As the date and time of the visit was unknown to staff at that Branch, a list of donors was created by a process using a computer program to randomise the staff list and donors then being selected in numerical order from the top of the randomised list. Staff members may be skipped if they are not at work or if testing is to be spread across a number of work units. On that occasion, the Applicant was not tested as she was number four on the list and another salesperson was ahead of her. On 2 November 2020, Drug Detection Au returned to Maroochydore to test staff who had not been previously tested. As all remaining staff were to be tested, a random list was not needed. Seven tests were completed and one test was unable to be completed because the donor had left the site.

[31] Mr Rodgers’ evidence was that the COVID-19 Pandemic caused intermittent drug and alcohol testing in the Respondent’s operations to come to a halt for several months. In or around the second half of 2020, restrictions eased and testing was able to be resumed. The ordinary procedure for testing is that within each Branch, individuals are randomly selected for testing. To the best of Mr Rodgers’ knowledge, individuals are chosen based on a roster system maintained by the external testing company, Drug Detection Au. Mr Rodgers said that when testing resumed, the Respondent conducted catch-up testing. Due to a high incidence of non-negative results, and pursuant to the Company’s zero tolerance policy, it was forced to dismiss 13 employees including approximately 90% of the staff at one branch location. Mr Rogers confirmed that in or around the second half of 2020, the Kunda Park Branch at which the Applicant worked had two non-negative testing results and employees were “let go” in accordance with the Company’s zero tolerance policy.

[32] The Applicant tendered a series of emails she exchanged with Ms Whitaker, the Respondent’s Head of Marketing and Communications in mid-November in which she raises issues concerned with the Respondent’s Drug and Alcohol Policy and in particular, urine testing. The email exchange commences with an email to all staff in which Ms Whitaker requests staff with any news or announcements they would like to share on the intranet about themselves or their co-workers, to forward these to Ms Whitaker. Suggested topics are what can be described as good news or positive items. The Applicant replied to Ms Whtittaker on 12 November 2020, (without copying all staff) and with a copy to Mr Lee, stating her opinion that she had no good news to share and wished that this was different. The email also stated that the morale at Maroochydore is at an all-time low and the Applicant is “Still in shock and disbelief at the treatment of staff by senior management”. The Applicant goes on in the email to express a view that Maroochydore has a great team who have “stepped up with no thanks to senior management and also on minimum wage” and that some people are doing the work load of two or three people, and are at the stage of mental and physical burnout. On 16 November 2020, the Applicant again emailed Ms Whitaker expressing her disappointment that her email did not warrant a response and copying in both Mr Lee and Mr Rodgers.

[33] Ms Whitaker responded, also on 16 November, stating that she thought the Applicant was not looking for a response but was simply letting her feelings be known. Ms Whitaker’s email goes on to state that there is zero tolerance for positive results from drug and alcohol testing in the workplace, as per the Company’s Policy and that staff had been reminded of this via the intranet in the previous week. Ms Whitaker also states that she is sure that the Applicant will agree that this should be part of the Company’s culture. Ms Whitaker also suggested in her response that the Applicant speak to Mr Lee and/or the Respondent’s HR Manager about her concerns and frustration.

[34] In an emailed response on 19 November, in which the Applicant embedded text into Ms Whitaker’s email of 16 November, the Applicant stated that while she does not condone testing positive in the workplace and is fully aware of the Company’s Drug and Alcohol Policy, it is the Applicant’s belief that the Company should adapt to a culture practiced in the building industry to support all employees and offer rehabilitation, especially those who have been loyal and served many years. The Applicant also stated in her response that there are employees of the Respondent who use cannabis in their private lives, including for anxiety, and are fit to perform work duties and would not return a positive test if swabbed. The Applicant stated her belief that urine testing is an invasion of privacy and that what someone does in their own personal time should not affect their employment if they are fit to perform their duties if swabbed. In this regard, the Applicant stated: “There are people within the company who can drink every night in excess and be hungover, come to work and have a negative test. Where is the justice in your testing methods?” The email concludes with the Applicant making general comments to the effect that morale within the Company is at an all-time low and there has been no improvement in relation to general staff issues.

[35] Under cross-examination, the Applicant agreed that her initial email to Ms Whitaker did not fit into any of the categories of “stories” requested by Ms Whitaker and that she had copied the Branch Manager Mr Lee and the Chief Executive Officer Mr Rodgers into her email. The Applicant said that she did this because she wanted a response about why the Respondent treated its staff so badly. The Applicant agreed that on 19 November when she sent the email to Ms Whitaker, she was fully aware of the Respondent’s Drug and Alcohol Policy and that urine testing is the method that the Company uses. The Applicant agreed that she believed that urine testing is unjust and invasive and that she still maintains this belief. The Applicant also agreed that it is her belief that it was unjust that the Company did not use swab testing because it is the least invasive method of testing.    The Applicant said that on the day she wrote the email to Ms Whitaker she was very angry because of the way senior staff were treated. 30

[36] The Applicant’s handwritten notes also tendered by her, state that Mr Rodgers telephoned her on 19 November 2020. The Applicant records that Mr Rodgers was “condescending” and not willing to discuss her issues and that she told Mr Rodgers that the conversation was pointless. The notes record that Mr Rodgers told the Applicant that he would be at the Maroochydore store on 27 November 2020 and would discuss her issues then. Mr Rodgers confirmed that in or around late November 2020, he visited the Kunda Park Branch and arranged to meet with the Applicant to discuss concerns she had raised about the drug and alcohol testing procedure.

[37] The Applicant said attended a meeting with Mr Rodgers at the Kunda Park Branch on 27 November 2020, to discuss the Drug and Alcohol Policy and pay structures. Mr Rodgers said that during the meeting, the Applicant stated that urine testing is an invasion of privacy and that swab testing is sufficient ensure that employees can perform their duties. Mr Rodgers also said that the Applicant state that the Company should support workers after a non-negative result and questioned the Company’s right to dictate what the Applicant did on the weekend or after hours. Further, Mr Rodgers said that the Applicant stated that another builder – a customer of the Respondent – is upset about how the Respondent is doing its testing. Mr Rodgers’ view was that this comment was made by the Applicant in a threatening tone.

[38] Under cross-examination, Mr Rodgers agreed that during the meeting on 27 November 2020, he told the Applicant that he had previously worked for the CFMMEU as an Organiser. The Applicant also stated that she said in response: “Well that’s nice but I’ve done a Cert IV in community service and electives in mental health and drug and alcohol.” 31 Mr Rodgers did not disagree with this statement. Mr Rodgers also agreed that the Applicant was very upset during the meeting but said that his main concern was that the Respondent’s Drug and Alcohol Policy was upheld.32

[39] After meeting with the Applicant on 27 November 2020, Mr Rodgers met with Mr Bartkowski and discussed the matters raised with the Applicant. Mr Rodgers said that Mr Bartkowski convinced him that he would not meet his duty of care by swab testing on the basis that urine can detect a broader range of substances and swab testing is just a moment in time which cannot detect substance abuse. After that discussion, Mr Rodgers engaged Drug Detection Au to conduct training at a managers’ conference and informed managers that he was not prepared to change the Company Drug and Alcohol Policy at that time.

[40] In relation to drug testing methods, Mr Bartkowski said in his evidence that saliva is the method of testing preferred among drug users owing to the shorter detection window compared to urine. As an example, Mr Bartkowski said that cannabis has a window of up to six weeks in urine for a heavy user and in the saliva, the window is reduced to 8 – 10 hours, regardless of the amount used. Under cross-examination, Mr Bartkowski said that this was a general comment in relation to testing methods and was not directed at the Applicant nor suggestive that her motive for refusing a urine screening test was due to drug use on the Applicant’s part.

[41] The Applicant also gave evidence about being tested at times not specified in her statement, while she was working at Salisbury. The Applicant said that she was told by the Branch Manager at that site that she would be tested when the next drug van was due. On another occasion, the Store Manager at Salisbury told the Applicant that she was selected to be tested so that another female who was also being tested did not feel like she was alone in the drug testing van and the only female being tested.

[42] Under cross-examination, the Applicant agreed that she consented to undertake a urine screening test on 11 October 2018 and had raised no issue undertaking the test. The Applicant said that this is because she was not suffering from a personal medical condition at the time she presented for testing.

Events of 1 February 2021

[43] On 1 February 2021, Drug Detection Au returned to the Maroochydore site to conduct testing. The Applicant’s evidence about the events of 1 February 2021 was that she was “targeted for testing” as she was the last employee besides her manager Mr Lee, to be tested at Maroochydore. Ms Cobb advised the Applicant that she had been selected for testing and was required to attend the van for this purpose. The Applicant said that “the lady performing the test” [Ms Arrow] was filling the toilet with water when she arrived at the van and said that she told Ms Arrow that she would not be supplying a urine sample that day, for personal medical reasons.

[44] When requested by Ms Arrow to advise the reason the Applicant said she informed Ms Arrow that she had a urinary tract infection and would prefer to be swab tested to show that she was fit to perform her duties at work. The Applicant also said that she told Ms Arrow that she was not certain that she would be capable of providing a sample due to her medical condition. The Applicant further said that she told Ms Arrow that she could make an appointment with her private doctor to get tested and provide a medical certificate. The Applicant said that Ms Arrow told her that this was not an option and that if she did not supply a urine sample it would be treated as if the Applicant had tested positive. The Applicant also tendered a form headed Drug Detection Au – Screening form, which she completed on 1 February 2021. On the form the Applicant wrote: “Not consenting Personal medical reason” in an area of the form where medications being taken by a person consenting to testing are to be recorded.

[45] The Applicant said that she asked Ms Arrow whether she could get a witness as to what she was being told and returned to the van with Ms Cobb. The Applicant confirmed that when she returned to the van with Ms Cobb, Ms Arrow was on the telephone with her supervisor [Mr Bartkowski]. The Applicant states that: “it was confirmed with [Ms Arrow’s] supervisor on the phone that the reason for not testing was that I felt the method of testing was invasive as I had a urinary tract infection.” The Applicant said that Mr Bartkowski told her that urine testing was the only option. When the Applicant informed Mr Bartkowski that it stated in the Respondent’s Policy that swab testing was also a method available to use, Mr Bartkowski told her that this was not the case and when the Applicant insisted that it was, Mr Bartkowski told her to hold on while he checked the Policy. The Applicant was subsequently informed by Mr Bartkowski that: “even though it was in their policy, they were only employed by Lyndons to breath test and urine test, so this method of testing was not an option for me.”

[46] The Applicant said that she was told by Mr Bartkowski that if she did not provide a urine sample, it would be deemed as refusing to be tested. The Applicant maintained that at no time had she refused to be tested but that she had opted for a different method of testing due to her medical condition and believed that the test was invasive. The Applicant said that she was then told that she would be stood down for refusing to provide a urine sample. Further, the Applicant said that immediately after leaving the testing van, she telephoned her doctor (Dr Lazzam) to make an appointment, and the first available appointment was Thursday 4 February 2021. The Applicant tendered a statement from her doctor dated 30 March 2021, confirming that she had contacted the practice on 1 February 2021 to make an appointment and that an appointment scheduled for 4 February had to be cancelled due to the illness of the practice receptionist who developed COVID symptoms and was required to be tested. The statement said that telephone appointments were offered to patients, but the Applicant had stated that she required a face-to-face appointment and the next available appointment was 9 February 2021.

[47] The Applicant said in her witness statement that she wished to call evidence from the person who conducted the drug testing, the supervisor who was phoned by that person and Ms Cobb and that she wanted those persons to state that she informed them and/or that they knew she had a urinary tract infection in conversations outside or in the testing van. The Applicant also contended that at 9.09 am on 1 February 2021, she telephoned Mr Lee who was not present when the testing van arrived and informed him that she had a urinary tract infection and would be asking for a swab test to be done. The Applicant tendered a list of calls on her mobile telephone on that dated confirming the call but not its duration. Further, the Applicant tendered a written statement provided by Ms Cobb at the Applicant’s request, signed by Ms Cobb and dated 1 February 2021, in the following terms:

“To whom it may concern,

I, Amanda Cobb (Lyndons Maroochydore 2IC) was requested by Kylie Desmond to be a witness for the drug and alcohol van testing.

Kylie requested a different method of testing (due to personal reasons) and stated that the policy mentions swab testing as a method of testing. She requested this method of testing to prove that she was still fit to perform her duties.

They have refused as they are engaged by Lydons to perform urine testing and as a result, Kylie has been stood down.”

[48] In her oral evidence, the Applicant said that her stance is that she was a loyal employee who presented with a medical condition and her word should have been accepted. The Applicant also maintained that she has never refused to have a urine test before and just because she objected to it does not mean that she would not undertake the test. The Applicant expressed her offence at comments in Mr Bartkowski’s evidence that preferring oral swab testing is a tactic of drug users. The Applicant said that this is also a method that someone would request if they had a urinary tract infection and that females know what it is like to have such a condition. 33

[49] Under cross-examination, the Applicant maintained that she had not breached the Policy or refused a test. In response to a request that she point to the provisions in the Policy which state that an employee has a right to choose the method of testing, the Applicant said:

“Can you show me in this policy where it says that an employee has the right to choose what method of testing occurs? --- I didn't say an employee has a right, I just said it doesn't state in there that only the employer has the right. It doesn't state in there anything about presenting with personal medical conditions, how they proceed with it. There's nothing in there at all, no training on it, not told about it in training. That was my point. It doesn't state in there "Lyndons will say you're going to be urine tested" - but if you present with a personal medical condition where does it state how they proceed? What do they do?

All right. Just to be clear, my question was can you show me in the policy? --- No, I can't.

Right, and that's because it's not there. That's correct, isn't it? --- That's correct. It does not state who chooses the method.” 34

[50] The Applicant also maintained under cross-examination that she was within her rights to be swabbed in circumstances where she presented to the testing van with a medical condition. The Applicant accepted that this is not stated in the policy but contended that swabbing is a testing method provided for in the Policy and that the Policy is silent about persons who present for testing with a medical condition. The Applicant said that she did not write “urinary tract infection” on the form because she did not know how to spell some of the words. The Applicant acknowledged that she could have abbreviated her condition to “UTI” on the form but did not think to do this. 35 The Applicant agreed that on 1 February 2021 she did not have a diagnosis of urinary tract infection from a medical practitioner to establish that she was in fact suffering from that condition but maintained that it was not just her opinion, but fact.

[51] The Applicant accepted that Ms Cobb did not include in her statement made on 1 February 2021 that the Applicant said that she was suffering from a urinary tract infection. In response to the proposition that she had not stated this to Ms Cobb, the Applicant said that Ms Cobb heard her make the statement twice while in the testing van. The Applicant also said that she cannot control what Ms Cobb writes in a statement and that she did not ask Ms Cobb to correct the statement because Ms Cobb was in a hurry to get out to the front counter once the Applicant had been stood down because there was nobody in the sales office. The Applicant also maintained that she told Mr Bartowski and Ms Arrow that she had a urinary tract infection. 36

[52] Mr Bartkowski states that the testing on 1 February 2021 was random and that he tasked Ms Arrow to conduct the testing. When the random list was generated, the Applicant appeared as number one on the list. Four tests were completed and the Applicant’s test was recorded as a refusal. In response to questions about how random selection is conducted, Mr Bartkowski said that a random list can be generated by virtue of site, work groups, date, time or name. If all employees on a site are tested, such testing may be random by virtue of the management and persons at the site not being advised in advance of the date and time that the testing is conducted. Mr Bartkowski agreed that the testing at Maroochydore in October 2020 was conducted at the request of senior management who requested that site management not be advised in advance of the testing. On that occasion, the Applicant was number four on the random list but was not tested because there was someone in a position above her who was already from the Department. Mr Bartkowski was not aware that the Applicant was the only person in sales at that time and could not state the identity of the person on the list who was tested instead of the Applicant on that occasion. Mr Bartkowski agreed that the Applicant and Mr Lee were the two remaining staff to be tested at Maroochydore in November 2020 and said that the Applicant was not tested on that date as she was not on site. Mr Bartkowski disputed that the Applicant was selected for testing in February 2021 because she was not tested in October or November 2020 and said that her selection for testing in February 2021 was random by virtue of a list being generated on that occasion.

[53] Ms Arrow’s evidence is that the random screening list on 1 February 2021 contained 15 names when only five tests were required to be conducted. Under cross-examination, Ms Arrow said that the randomly generated testing list is usually shown to the Company’s manager on site who advises which employees on the list are not at work on that day, and the next employee on the list is tested.

[54] Ms Arrow said that upon arriving at the site, she liaised with Ms Cobb as the second in charge at the Branch and arranged with Ms Cobb for the five donors on the list to be tested. Ms Arrow tendered the list, which included Ms Cobb and the Applicant. Later that morning, Ms Cobb asked Ms Arrow what the procedure is for someone who declines to take the test and explained that the Applicant was not willing to undertake a urine screen but would complete an oral fluid screen. Ms Cobb told Ms Arrow that the Applicant had requested that Ms Cobb be present in the testing van as a witness.

[55] Ms Arrow also said that the Applicant came to the testing van as she was replenishing the toilet water tank and said words to the effect of: “you won’t be needing that for me”. Ms Arrow asked the Applicant why this was the case and the Applicant responded by saying that she was not going to do the urine test for personal reasons and was opting to be tested by an oral swab. The Applicant also said that she would go to her GP to undertake a urine test but was not comfortable providing a sample in the van. When Ms Arrow asked why the Applicant was uncomfortable with her conducting the test, the Applicant provided no explanation beyond “personal reasons”. Ms Arrow stated that at no time did the Applicant elaborate or disclose the nature of the personal reasons either to Ms Arrow or in Ms Arrow’s presence.

[56] According to Ms Arrow, the Applicant went on to explain that she wanted Ms Cobb present in the van as a witness to record her opting not to complete a urine drug screen and to document her willingness to instead undertake an oral swab test for the purpose of proving her fitness for work. Ms Arrow said that in response, she asked the Applicant to get Ms Cobb and contacted Mr Bartkowski to be part of the conversation by speaker telephone. A conversation then took place between the Applicant [Kylie] and Mr Bartkowski [Craig], which Ms Arrow said involved words to the following effect:

Kylie: “I won’t be doing a urine test for personal reasons. The policy states that I can opt to do an oral swab test instead.”

Craig: “Although the policy defines the test as including urine and oral fluid, that doesn’t give you the option to choose. The Company decides on the test method and, in this case, it is urine testing. We have used urine testing since 2014 and, for consistency, your test must also be urine. If you refuse the urine test, it’ll be recorded as a refusal of the test.”

Kylie: “I’m not refusing a test, I’m opting for another method of testing.”

Craig: “For the purposes of the random test, refusing to do the urine test will be recorded as a refusal.” 37

[57] Ms Arrow said that following the conversation, the Applicant noted on the Drug Detection Au Screening Form that she was not consenting to undertake a urine test for “personal medical reasons”. A copy of the form containing the Applicant’s notation was tendered by Ms Arrow. 38 In response to the proposition that the Applicant told her that she had a urinary tract infection and could not urinate, Ms Arrow said that she recalled the Applicant saying that she was uncomfortable providing a specimen. Ms Arrow also said that she asked the Applicant whether she was uncomfortable providing a specimen in the van because the Applicant was talking about going to her own GP to do this. Ms Arrow maintained that the Applicant did not refer to a urinary tract infection and that she told the Applicant that while it was her choice to go to her doctor to do a test, that would not be accepted under the Respondent’s testing regime.

[58] In response to the proposition under cross-examination that the Applicant said that she wanted to be swab tested because she had a urinary tract infection, Ms Arrow said that it was her recollection that the Applicant said that she was choosing not to provide a urine sample but was prepared to provide a saliva sample. Ms Arrow also said that she did not recall the Applicant telling Mr Bartkowski that she had a urinary tract infection. Further, Ms Arrow said that Mr Bartkowski did not tell the Applicant that swab testing was not in the Respondent’s Policy but said that it was not written as an option and the Applicant did not have a choice to take a saliva test although the Policy stated that testing could be undertaken using either of those methods. Ms Arrow also said that Mr Bartkowski checked the wording of the Policy to clarify that swab testing was not an option that the Applicant could choose rather than whether the Policy referred to swab testing. In response to a question from me, Ms Arrow said that the Applicant referred to a “medical condition” in her discussion with Mr Bartkowski but did not specify the nature of this condition. 39

[59] Mr Bartkowski confirmed that he received a telephone call from Ms Arrow on the morning of 1 February 2021 and was requested to speak to a donor who was refusing a test for personal reasons. Mr Bartkowski said that he was introduced to the Applicant and her support person, who was also present in the testing van. According to Mr Bartkowski, the Applicant advised that she was not refusing a test, she was only refusing a urine test and wanted to do a saliva test. Mr Bartkowski said that he reminded the Applicant that the Respondent used urine across all sites. The Applicant then stated that the Policy allowed for the donor to opt for saliva testing. Mr Bartkowski responded by stating that while the Policy referred to saliva testing, it did not provide for donors to be able to choose the method of testing and that to administer the testing fairly across the site, a urine screen needed to be conducted.

[60] Mr Bartkowski said that he then asked the Applicant her reason for refusing the urine test and the Applicant again stated: “personal reasons”. Mr Bartkowski advised the Applicant that this would not be accepted and the Applicant maintained her position of refusing the test. Mr Bartkowski then advised the Applicant that if she continued to refuse the test the result would be recorded as “fail” and she would be subject to the same disciplinary process as someone who had returned a positive result. The Applicant reiterated her position that she was not refusing the test but was opting for another method. When it became evident that the Applicant would not supply a sample of urine, Mr Bartkowski advised Ms Arrow to record the result as a refusal and ended the conversation. Mr Bartkowski had no further contact with the Applicant after this conversation and is not aware of her “personal reason” for refusing the test. Ms Arrow subsequently submitted the screening form for the Applicant showing the result as a refusal.

[61] Under cross-examination, Mr Bartkowski was asked whether there is a method of testing available if a staff member presents with a medical condition and responded by stating that this would be considered on a case-by-case basis, and the medical condition would need to be such that it would preclude the employee being able to provide a urine specimen. In response to a question as to whether this would be the case even if the employee believed that the test was invasive, Mr Bartkowski said that it is not a matter of how employees feel, but a matter of what method the Company chooses to use and the advice of Drug Detection Au in relation to what method of testing offers the best protection. In response to the Applicant’s proposition that employees have no rights, Mr Bartkowski said that employees do have rights to refuse the test and cannot be forced to provide a specimen. However, there is a process if an employee refuses. Mr Bartkowski also said that plenty of people present with medical conditions or wanting to be swabbed instead of providing a urine sample. In this regard, I had the following exchange with Mr Bartkowski:

“THE DEPUTY PRESIDENT: So can I just understand, if people present with a medical condition and say they've got a medical condition and they're concerned about providing a sample, the approach is as long as the medical condition doesn't prevent you from providing a sample, then you should provide the sample, and if you don't, it's got implications? --- That's exactly right. In all the time I've been doing this we've had - I think there's only one condition where I could see it was justifiable to change to a saliva sample, and that person had got a golden staph infection in his penis and it had been split right down the centre to clean it up.

Right? --- So in that case, you know, that saliva test was - - -

He could not physically urinate? --- Not without extreme pain and under duress.” 40

[62] In response to the proposition put by the Applicant that a urinary tract infection can make it difficult for a female to provide a urine sample, Mr Bartkowski said that he understood that urination in such circumstances can be painful and it can take a period of time to provide a sample, but that time is allowed for this. In response to the proposition that the Applicant was not allowed a period of time to take the test before being stood down, in circumstances where she presented with a personal medical condition, Mr Bartkowski said that he is not aware of what happened to the Applicant after she was stood down. Mr Bartkowksi agreed that the Applicant stated that she had a medical condition but maintained that she did not state that she was suffering from a urinary tract infection.

[63] Mr Bartkowski also said that there was no discussion in the training course about the Policy in relation to employees presenting with a personal medical condition that could preclude them from providing a sample. Mr Bartkowski further stated that if this occurred, he would go back to management and ask the question as to whether another form of testing could be used, but that this would be a rare occurrence. In response to the proposition that this option was not offered to the Applicant, Mr Bartkowski said that this was not the conversation that he had with the Applicant on 1 February 2021 and that the Applicant was stating that the saliva test was an option she could choose and he was stating that while the Policy allowed for it, this was at the choice of the Company and not an employee.

[64] Mr Bartkowski had the following exchange with the Applicant in cross-examination about why she was not offered a swab test:

“Craig, like, when you were the phone is there any reason why I was not offered a swab test as I presented with a medical condition? Why was there no conversation there about - - -? Because you didn't tell me what the medical condition was and, as I said, there is only one instance that I can think of that it would preclude it. A urinary tract infection, I certainly would have had the same conversation with you and said, ‘Look, it's not a reason to not provide a urine sample.’ I acknowledge that it might be difficult and it might take time, and we would have given you the time, but it wasn't - that wasn't the conversation we had. The conversation we had was that you had the right to choose saliva because that's what the policy says and I said that's not how it works.

So you're stating that I did present with a medical condition? --- We have already been over that. Yes, I have already acknowledged - - -

Would you not have asked me what that medical condition was? --- I did ask you and you said you had a medical condition, that was it, then we continued the discussion which was about your right to choose saliva because the policy says you are - saliva. I went on to say to you that it would be treated as a refusal and I went on to warn you that it would be treated as workplace misconduct, and that we would need to record it as a refusal if you didn't provide it, so I gave you that advice on the phone.

That's why I was quite upset while you were on the phone and kept stating my case that - - -? --- Okay.

- - - you know, I had the right to ask for an oral swab? --- You do have the right to ask.

‘Because I have a personal medical condition - - -‘? --- Okay.

- - - ‘and at this time feel that the current testing method is invasive’? --- Okay. Again, it's how you feel. I can't help that. Both methods are accepted, but the company gets to make the choice and then we test, you know, true to what we're asked to do or the policy, you know, requires us to do.” 41

[65] Mr Bartkowski also said that he would have told the Respondent’s management that the Applicant said that she had a medical condition but said that he is not aware of what management knew. Mr Bartkowski spoke to one person in head office, an employee named “Tash”. In response to a question from me as to what he would have done if the Applicant had stated that she had a urinary tract infection, Mr Bartkowski said that he would have told the Applicant that this was not a reason to refuse to provide a sample and that if the Applicant had stated that she could not do so, he would have informed her that he needed to see a medical certificate to that effect, because that would be a reason why the Applicant should not be at work. In response to a question from the Applicant as to whether he had informed her that she needed a medical certificate, Mr Bartkowski said that they did not get to that point because he did not know the nature of the medical condition and the Applicant had simply refused to do the test on the basis of a medical condition and an alleged right to provide saliva. Mr Bartkowski also insisted that the Applicant could have provided a urine sample notwithstanding that she may have had a urinary tract infection and that she did not attempt to do so but rather insisted that she had a right to a saliva test.

[66] Ms Cobb’s evidence was that in Mr Lee’s absence from the Branch on 1 February 2021, she liaised with Ms Arrow in relation to the testing. Ms Cobb said that Ms Arrow informed her that the testing was random and read a list of names of persons to be tested, which included the Applicant and Ms Cobb. Ms Cobb telephoned Mr Lee to advise him that the drug and alcohol van had arrived to undertake testing and the names of the employees on the list to be tested. Ms Cobb then went to each employee on the list to inform them that the van was on site and that they were on the list to undertake random drug and alcohol testing that morning. Ms Cobb said that when she informed the Applicant of this, the Applicant said words to the effect that she would not be doing the urine test and may need to call Ms Cobb as a witness.

[67] Ms Cobb was tested in the van prior to the Applicant entering the van and after her test, called Mr Lee again to inform him that the Applicant had stated she would be refusing the test and had asked Ms Cobb to be a witness. During this telephone call, the Applicant who was in the van, came out to request that Ms Cobb come into the van as a witness to what was being discussed. When Ms Cobb entered the van Ms Arrow informed them that her boss [Mr Bartkowski] was on the speaker telephone and would be participating in the discussion. Ms Cobb said that the Applicant stated that she was requesting a different method of testing rather than a urine test, due to personal reasons and that in the policy it mentioned something about swab testing. Ms Cobb also said that the Applicant did not disclose the nature of her personal reasons at any time, either to Ms Cobb or in her presence.

[68] According to Ms Cobb, in response to the Applicant’s request, Mr Bartkowski appeared to pull up the policy and read it, before stating words to the effect that: “the method upon which Drug Detection Au is engaged to do drug testing is by a urine sample. Not providing a urine sample will be taken as a refusal to submit to a test.” Ms Cobb said that in response, the Applicant stated numerous times that she was not refusing but was opting for a different method of testing and Mr Bartkwoski and Ms Arrow repeated that by not undertaking the urine test, the Applicant would be recorded as refusing it. Ms Cobb agreed that after leaving the van she signed a statement recording the events and tendered a copy which was in identical terms to the document tendered by the Applicant. Ms Cobb said that the Applicant stated that she would make an appointment with her doctor and later said that she would go home via the police station to ask them to perform a swab test and would cancel her appointment with the doctor if she was swabbed at the police station so that she would not have to pay the doctor’s fee.

[69] Under cross-examination, Ms Cobb said that she did not know that the Applicant telephoned Mr Lee and informed him that she would not be supplying a urine sample, before she spoke to Ms Cobb. In response to the proposition that the Applicant had stated that she would stop at the police station on her way home from work but had not stated that she would then cancel her appointment with her doctor so that she would not have to pay, Ms Cobb maintained that the Applicant made both comments. The Applicant maintained that she did state she would stop at the police station to be tested but did not state that this was to avoid paying a fee to her doctor. In this regard, the Applicant said she would not have made such a comment, because her doctor bulk bills. Ms Cobb said that she was not aware whether the Applicant had made an appointment with her doctor before leaving work or intended to do so and later agreed that she must have known before the Applicant left work on 1 February 2021, that the Applicant had made an appointment for later that week. Ms Cobb maintained that the Applicant did not inform her on 1 February 2021, that she was suffering from a urinary tract infection and kept saying that she had personal reasons for refusing the urine test.

[70] Mr Lee confirmed that he spoke to Ms Cobb twice on 1 February 2021, when she informed him that the testing van had arrived at site and subsequently that the Applicant was refusing the test and that the Applicant had stated that she may need to call Ms Cobb as a witness. Mr Lee said that he advised Ms Cobb that if the Applicant refused the test, it would be deemed as a “fail” and that the Applicant would need to be stood down from duties until she underwent a test. Mr Lee also said that he received a telephone call from the Applicant later in the day, after she had refused the urine test, and that the Applicant advised that she was not refusing to be tested, but would not be undertaking that form of testing, due to “personal reasons”. Mr Lee said that he stated to the Applicant that the method being used is the policy of Lyndons’ drug testing. In response the Applicant stated that she would not be undertaking that test and would be making a doctors appointment. Mr Lee said that he told the Applicant that she would be stood down from her duties, “pending a result”. Mr Lee also said that the Applicant did not disclose the nature of her personal reasons for refusing to take the test, either to him, or in his presence, at any time on 1 February 2021.

[71] Under cross-examination, the Applicant put to Mr Lee that she had telephoned him at 9.09 am on 1 February 2021, before he had spoken to Ms Cobb and that the Applicant had informed him that the drug testing van was on site. The Applicant also contended that during this conversation, she informed Mr Lee that she had a urinary tract infection and would not be providing a urine sample. In support of this contention, the Applicant tendered her telephone records evidencing calls being made to Mr Lee at 9.09 am and 6.35 pm on that date. Mr Lee said that he did not remember the Applicant telephoning him at that time. The telephone records do not indicate the duration of the telephone calls at 9.09 am or 6.35 pm.

Events subsequent to 1 February 2021

[72] On or around 1 February 2021, Mr Lee contacted Mr Rodgers and sought advice for what Mr Lee described as a refusal by the Applicant to undergo a urine test as part of random drug and alcohol screening. Mr Lee informed Mr Rodgers that he had sent the Applicant home and asked what the next steps would be. After seeking advice Mr Rodgers later told Mr Lee that the Applicant would be stood down with pay. Mr Lee communicated this to the Applicant and informed her that he would be in touch. Thereafter, Mr Lee and the Applicant engaged in email communication with Mr Lee seeking advice from Mr Rodgers about that correspondence. On 2 February 2021, Mr Lee sent a letter to the Applicant via email in the following terms:

“I am writing to you regarding your employment with Lyndons Pty Ltd and your recent refusal to undergo a drug and alcohol screen test in breach of the Company ' s Drug and Alcohol Policy.

In accordance with section 11.2 of the Company's Drug and Alcohol Policy, Lyndons may require you to undergo testing for the presence of drugs or alcohol without cause and without notice.

On Monday, 1 February 2021 you were randomly selected by Lyndons to undergo a drug and alcohol screen test in accordance with section 11.2(4) of the Policy. Your refusal to comply constitutes a breach of the Policy, in accordance with section 11.5. Additionally, your refusal to carry out a lawful and reasonable instruction consistent with y our employment contract may constitute serious misconduct.

You have a responsibility under your employment and section 5.1 of the Policy to comply with the Policy and observe all directions from Lyndons in regards to the Policy.

While Lyndons acknowledges your request to undergo a drug and alcohol screen test with your personal doctor, testing must be conducted in accordance with the Policy and by an authorised officer from an independent testing agency. Your personal doctor is therefore, not suitable to conduct the screen test.

Please consider t his letter to be a formal direction from Lyndons to comply with the Drug and Alcohol Policy and the Company's lawful and reasonable instruction to undergo a drug and alcohol screen test conducted by the Independent testing agency appointed by the Company.

Further refusal to comply with this formal direction will result in disciplinary action up to and including termination of employment. 42

[73] The Applicant’s response, addressed to the Respondent’s senior management and sent by email on 2 February 2021, was as follows:

“In response to your letter dated 02/ 02/ 2021:

Regarding paragraph 1

I have never at any time refused to undergo an alcohol or drug screening test. I opted for an alternative method of testing as per Lyndons Drug and Alcohol Policy, sect ion 11(1) and 11(2) where your methods of testing also includes oral swabbing. This is the method of testing requested. Please refer to the attached letter of witness testimony as to this fact.

Regarding paragraph 3

I do not believe I am in breach of this policy as there was no refusal to be alcohol or drug tested. My request was to be swab tested as the current form of testing is invasive. Please refer to Workplace Health and Safety QLD ‘Framework for alcohol and drug management in the workplace’. Under ‘Drug and Alcohol testing’ is states:

‘The decision to adopt a testing regime should be made in consultation with workers.’

Under ‘Method of Testing’ it states:

1) ‘Any form of testing should be the least invasive and provide timely results. Breath testing for alcohol and oral testing for drugs are recommended as the preferred methods of testing as they are non-invasive, discreet and quick to administer. Testing should be conducted in accordance with the relevant Australian standards.’

I would like to reiterate that I have at no time refused to be drug or alcohol t ested. I believe that I am being bullied into submitting to an invasive form of testing with the threat of losing my job. 43

[74] On 4 February 2021, Mr Lee responded to the Applicant’s email by letter (emailed to her), reiterating the Company’s position. That letter was in the following terms:

“Thank you for your email dated 2 February 2020 and the matters you have raised therein.

Firstly, I must Inform you that section 11.2 of the Company's Drug and Alcohol Policy does not afford you the opportunity to choose which test you would like to undertake. What it does state is that there are several tests that you as an employee can be requested to undertake. ·

The Company has for a long period of time chosen to have its employees undertake a urine test as it is the best form of sampling which can detect a broad cross range of prohibited substances. The drug test is conducted by an appointed independent company and is non-invasive and discreet. It is done in a mobile van that is set up so the test is undertaken in privacy.

While Lyndons acknowledges your request to undergo a swab test this is not the method that the Company wishes to be undertaken and it does not use swab tests. You have a responsibility under your employment and section 5.1 of the Policy to comply with the Policy and observe all directions from Lyndons in regard to the Policy. The request to undertake the urine screening is not ‘bullying’ it is a lawful and reasonable direction. Furthermore, the test is not invasive as you have stated.

Please consider this letter to be a formal direction from Lyndons to comply with the Drug and Alcohol Policy and the Company's lawful and reasonable direction to undergo a drug and alcohol urine screen test conducted by the independent testing agency appointed by the Company.

As has been advised previously to you, your refusal to comply constitutes a breach of the Policy, in accordance with section 11.5. Additionally, your refusal to carry out a lawful and reasonable direction consistent with your employment contract may constitute serious misconduct.

Further refusal to comply with this formal direction will result in disciplinary action which could include you being stood down without pay until you undertook the test up to and including termination of employment.

We look forward to receiving your immediate confirmation that you will proceed with the drug and alcohol urine screen test.” 44

[75] The Applicant responded by email on 6 February 2021 as follows:

“I have read the attached letter. As per my previous email dated 02/02/2021, I personally as a female find the current testing method invasive. As per Lyndons policy, there are options for less invasive methods of testing available. I am more than happy to submit to a breathalyser and/ or oral swabbing to prove I am fit to perform my duties in internal sales (retail award).” 45

[76] On 8 February Mr Lee sent a further letter to the Applicant stating:

“We refer to our correspondence to you dated 2 February 2021and 4 February 2021 and your responses to them.

Your continued refusal to undertake a urine screening by our authorised officer is a failure to comply with a lawful and reasonable direction and is in breach of the Company’s Drug and Alcohol Policy (‘the Policy) and the Code of Conduct.

Your continued failure to comply with your obligations leaves me with no choice but to suspend your employment immediately without pay pursuant to clause 12.3(3) of the Policy. Your suspension will be until 5pm Monday 15 February 2021 to give you a further opportunity to comply with· our lawful and reasonable direction to undertake a urine screening by our authorised officer.

Further refusal to comply with this formal direction will result in furt her disciplinary action which could lead to termination of your employment.

We look forward to receiving your immediate confirmation that you will proceed with the drug and alcohol urine screen test.”

[77] On 9 February 2021, the Applicant sent a further email to Mr Lee in response to the letter of 8 February, stating:

“I don't understand why Lyndons are prolonging this when they have instantly terminated other staff.

I have already stated numerous times that I will not be bullied into submitting to this invasive method of testing. Prolonging this and standing me down without pay and not terminating my employment like they have with previous staff is putting me and my family into severe financial hardship.” 46

[78] According to Mr Lee, a response to the Applicant’s email was drafted by Mr Rodgers and sent by Mr Lee to the Applicant without amendment. That response was emailed to the Applicant on 8 February 2021 under the signature of Mr Rodgers and was in the following terms:

“Dear Kylie thank you for your email.

The Company does not want to see your employment terminated nor place you in any financial difficulty but only insists that you comply with the lawful and reasonable direction to attend to a urine drug screen test by our authorised representative. If you undertake the test as requested and it is clear, then you can immediately return to work however until that occurs you will remain stood down without pay until such time as the test is undertaken. You have placed the Company in a position which to ensure the health and safe ty of its clients and employees we have no choice but to stand you down due to your continued failure to follow a lawful and reasonable direction.

We will revisit this matter on Monday, 15 February 2021 as your actions/ inactions will determine what course is taken by the Company which we hope will be a return to your position as you have undertaken the urine screening test and it has shown a negative result.” 47

[79] The Applicant responded by email also on 8 February 2021, as follows:

“Hi Andrew

I don't see this as a reasonable and lawful direction.

Again I am not refusing to test but have asked to be swab tested as per one of Lyndons methods of testing in their policies.

I am not sure why we are going back and forward over this issue . I will not be bullied into submitting to an invasive form of testing.” 48

[80] Mr Rodgers considered that the Applicant had not altered her position. Mr Rodgers also said that on or around 9 February 2021, he received a telephone message from an anonymous caller making comments that he considered threatening, including that the caller wanted to resolve the bullying and harassment issues at Kunda Park and to ensure that Lyndons did not have access to any union-controlled building sites. Mr Rodgers caused the number of the anonymous caller to be rung and asserted that it belongs to the Applicant’s brother Mr Shaun Desmond, who was formerly an Organiser with the CFMMEU and previously employed by a large construction company. While the Applicant did not call evidence to contradict this assertion, I do not consider it relevant to the issues in dispute and have not had regard to it in deciding this application.

[81] On 16 February 2021, Mr Lee sent a final letter to the Applicant stating:

“Dear Kylie,

We refer to our correspondence to you dated 2 February 2021, 4 February 2021, 8 February 2021 and your responses to them.

Your continued refusal to undertake a urine screening by our authorised officer is a failure to comply with a lawful and reasonable direction and is in breach of the Company's Drug and Alcohol Policy (‘the Policy’) and the Code of Conduct.

At our meeting of 16 February 2021 you were once again requested to undertake a urine screening by our authorised officer however, you once again refused to do so. You have been warned in previous correspondence that your continued failure to undertake a urine screening test could lead to the termination of your employment.

You have now been given numerous opportunities to undertake the urine screening test but have refused to do so and the Company considers your responses as to why you refuse to undertake t he test to be inadequate and not valid. You are aware of your obligations as contained in the Policy and your continued failure to comply is a substantial and wilful breach of the Policy.

It is with regret that I must advise you that your continued failure to comply with a lawful and reasonable direction leaves us with no other option but to terminate your employment effective immediately.

Your accrued entitlements, payment in lieu of notice and any outstanding remuneration, including superannuation, will be paid to you within 7 days of the date of this letter.

We regret that your employment with our organisation has not resulted in a more successful outcome for both parties and wish you all the best for the future.” 49

[82] Mr Rodgers said that he instructed Mr Lee to send this letter at the expiration of the period provided to the Applicant (16 February 2021) because the Applicant had continually refused to comply with a lawful and reasonable direction of the Company and had breached the Company’s Drug and Alcohol Policy. Mr Rodgers also said that the Applicant was afforded sufficient opportunity to provide a response to the Company and to comply with the Company’s direction following further instruction and response from the Company in its letters dated 4 and 8 February 2021.

[83] In response to questions from me, the Applicant maintained that she did not submit to a urine test as required in the correspondence to her, because she was standing firm and did not want to be bullied and further that it was her basic human right to refuse an invasive test, as she had a medical condition when she presented to the testing van. The Applicant also said that she thought that she would actually be believed and would have a conversation with senior management and that something could be sorted out. Instead, the Respondent went straight into bullying her and stating that if she did not submit she was going to be terminated. The Applicant said that she looks back now and thinks: “why didn’t I write UTI? Why didn’t I – because I didn’t think of it at the time when I was in the van and I did ask – state, how do I spell it”. 50

[84] The Applicant also gave evidence of attending an appointment with her doctor on 9 February 2021 and produced a letter from her doctor dated 30 March 2021 (referred to earlier in this Decision). In addition to explaining the delay in the Applicant obtaining an appointment, the letter went on to state in relation to the 9 February consultation:

“At that consultation, Kylie was visibly distressed. She informed me that she had just been stood down without pay for refusing to undertake a urine drug test at work. She told me she found this test invasive & had offered to have a mouth swab instead. However, the company she worked for refused to do the test.”

[85] The Applicant said in her witness statement that she had a telephone discussion with Mr Lee on 4 February 2021, during which Mr Lee asked what outcome she was hoping for and the Applicant responded by stating that she wanted to perform a swab test so that Lyndons could see that she was fit to perform her duties and return to work. The Applicant also said that she told Mr Lee that she wanted an apology from the Company for the threats to terminate her employment. Mr Lee’s response was that “this was not the outcome that would be happening” and that if the Applicant did not “submit to their demands” her employment would be terminated. The Applicant said that she had a further telephone conversation with Mr Lee on 15 February 2021 during which he requested that the Applicant come to see him at work the next day. The Applicant did this and was handed the letter terminating her employment. The Applicant’s telephone records indicate that she telephoned Mr Lee at 1.42 pm on 4 February and at 2.31 pm on 15 February 2021 with the phone record indicating four separate calls at that time. As previously stated, the phone records do not indicate the duration of any of the calls listed as having been made.

[86] Under cross-examination, the Applicant agreed that the letter sent to her by the Respondent on 2 February 2021, stated that as provided in the Policy, she was required to undergo testing and that her refusal to comply constitutes a breach of the Policy. The Applicant further agreed that the letter states that her refusal to carry out a lawful and reasonable instruction consistent with her employment contract may constitute serious misconduct. Notwithstanding these concessions, the Applicant said that she was not aware that the refusal to take a urine test was a breach of the Policy and could lead to disciplinary action and maintained that she was under the belief that employees had multiple options for testing. The Applicant also said that she was not aware that the Respondent was going to send a letter threatening her employment. Further, the Applicant said that she knew what the correspondence from the Company was saying but did not believe it was true. Ultimately the Applicant accepted that the correspondence from the Company put her on notice that she was breaching the Policy and needed to comply and that she had been given a formal direction to comply with the policy by taking a urine test. In response to the proposition that the correspondence from the Applicant did not state that she was suffering from a urinary tract infection, the Applicant said:

“As I stated in my opening statement, you can go through - I will concede that in none of them I have said I suffered from a urinary tract infection as I was under the belief that they already knew because of the drug testing and the multiple times I had already said it.” 51

[87] In response to the proposition that she had known from 8 to 15 February that she had been given a further seven day period to comply with a lawful and reasonable direction to undertake a urine screening by an authorised officer, the Applicant said the correspondence from the Respondent stated this but she knew from 4 February that her employment was going to be terminated. 52 In relation to her email to Mr Lee on 8 February 202153 the Applicant had the following exchange with Counsel for the Respondent:

“Right. It seems as if you're questioning why they hadn't already terminated you? --- This was a personal email sent to Mark Lee, between myself and him, as he had phoned me - as per my phone records - on 4 February and told me that they were going to terminate my employment if I didn't submit to that urine test. They wouldn't back down. I told him that I wanted - he asked me what I wanted. I said I wanted my job back and I wanted an apology. He said it wasn't going to happen; if I didn't comply they were going to terminate my employment. They hadn't terminated my employment between 4 and 8 February as they said they were going to do, so I said to Mark, "What's going on? Everyone else they've terminated. Why are they putting me in this financial position?"

So this was a personal email you sent? --- Yes, it was. I had a very good working relationship with Mark Lee.

Yet again no mention of the urinary tract infection you said you had suffered from? --- I say that in everything - none of my letters.

Not even in a personal email to Mark Lee? --- No, no, I didn't feel I need to. They already know.” 54

[88] The Applicant agreed that she had an opportunity to take a urine test and that she was advised that if she did so she could come back to work. In response to the proposition that she chose not to do this, the Applicant said: “I was standing firm on how I had been treated presenting with a personal medical condition.” 55 The Applicant also agreed that the letter from her doctor did not make reference to a urinary tract infection but said that when she attended an appointment with her doctor on 9 August 2021 she was “rambling” and “visibly distressed” and that the doctor’s main concern on that date was the Applicant’s mental state.56

[89] In response to the proposition that she had no medical reason to refuse a urine test at that time and could have taken that test at any time between 9 and 15 February 2021, the Applicant said: “I had no medical reason, but I’ve stated in my letters I was being bullied into consenting to something that is invasive. We should have had a discussion.” 57 The Applicant also said that it is now her case that prior to 9 February she had a medical reason not to undertake the test and that she refused to do so on the grounds of being bullied and harassed due to her personal medical condition and the emails that she had received.58 Further, the Applicant said that her condition had resolved by 9 February 2021.

[90] The Applicant agreed under cross-examination that she had a meeting with Mr Lee on 16 February 2021. In response to the proposition that she was given a further opportunity at that meeting to take a urine test, the Applicant said that: “Mark [Lee] asked me was I going to comply to their demands, and I said no, their demands are – it’s not a lawful and reasonable direction.” 59

[91] Under cross-examination, Mr Lee said that he did not remember having a telephone conversation with the Applicant on 4 February 2021 in which he asked what outcome the Applicant was seeking. Mr Lee was asked whether he recalled seeing the Drug Detection Au Screening Form upon which the Applicant had written “Not consenting Personal medical reason” and said that he had not seen this document. Mr Lee also said that he remembers a telephone conversation with the Applicant on 1 February where he told her that she would be stood down. Further, Mr Lee said that he was out of the premises on 1 February and had not seen the Screening Form and by the time he returned the Applicant had left the premises and the Form went to HR.

[92] Mr Lee and I had the following exchange during his evidence:

“All right. Did it occur to you to pick up a phone and ask her why she'd refused the test? --- No, it didn't occur to me because conversations that Kylie and I had had in the past, relating to Lyndon's Drug Policy, she had informed, off the record, or in general conversation, that if and when another drug test, and if my name is on a list, I won't be - I'll be refusing the urine test. She made that quite aware to me many times.

Or was it simply that she'd raised questions about - well, because she - the evidence is that Ms Desmond had previously submitted to a urine test. Her evidence is:

I'd done it before and I didn't want to do it on that occasion because I had a urinary tract infection and I wrote, 'medical condition', on the form, or 'medical reason' on the form, and no one even asked me about it.

? --- No, because I don't recall it being brought up, your Honour.

All right. So you don't even recall seeing that form until after the event? --- No. I think that could be the first time I've actually seen that form, to be honest.

All right. And you can agree or disagree with this. The reason you didn't pick up the phone and ask the applicant the reason, is because you thought you knew it? That she just objected to providing a urine sample? --- No. Look, the conversation I had with Kylie, later in that afternoon, again, I advised her that, at the moment, you'll be stood down, with pay, and HR will be in contact. And even to that point, she didn't - I don't recall her saying about a medical issue or having a urine infection.

But her evidence is, why didn't someone, or her issue before me is, why didn't someone just pick up a phone and say to me, "Do you have any reason why you've refused this test?"? --- Yeah, I'm sorry, I can't answer that.

But you didn't do that? --- No, I didn't do that.

Okay. And you can't tell me why? --- No, I don't - I didn't realise she had a medical issue, on that given day.” 60

[93] Mr Rodgers said under cross-examination that he was not made aware that the Applicant presented to the testing van on 1 February 2021 with a personal medical condition. Mr Rodgers said that this was not mentioned in any of the Applicant’s correspondence with the Company after 1 February and he could not recall how he became aware of this matter. In response to the proposition that he should have found out the Applicant’s reasons for refusing to submit to testing before writing letters threatening to terminate her employment, Mr Rodgers said that the Applicant was asked to perform a test which she refused to do and at no time did the Applicant indicate in her correspondence that her refusal was because of a medical condition. Mr Rodgers also said that he could not assume that everybody was aware of the Applicant’s medical condition before he caused letters threatening to terminate her employment to be sent to her.

[94] Mr Rodgers agreed under cross-examination that he had a discussion with the Applicant on 27 November during his visit to the Maroochydore site, in which she raised issues about duty of care to employees dismissed around that time for failing drug and alcohol tests and that he had stated his duty was to ensure that all employees have a safe working environment and that termination of employment for failing testing is the policy of the Company. Mr Rodgers also agreed that the Applicant had raised issues with the increased workloads as a result of employees being dismissed and had complained that additional work had been undertaken with no extra income on very low retail wages. Mr Rodgers said that he recalled the Applicant being very vocal about the amounts that were being paid and that he was satisfied that wages were appropriate.

[95] During Mr Roger’s evidence I put a series of questions to him concerning whether proper consideration was given to the Applicant’s statement on the Screening form that she had a personal medical reason for not consenting to provide a urine sample on 1 February 2021. I also put the proposition to Mr Rodgers that there is no evidence that any of the Respondent’s managers or HR staff asked the Applicant what her reason for refusing the test was. Mr Rogers said that he was informed by the testers that they were not given a reason for the Applicant’s refusal and otherwise did not respond to the proposition nor point to any evidence that the Applicant was asked this question before the decision to dismiss her was made.

[96] In response to a question from the Applicant about whether his view would have changed if he had known that the Applicant had said that she had a medical condition or a urinary tract infection on 1 February, Mr Rodgers said that he would have deferred the testing but the testing regime would have been the same. 61 Mr Rodgers also said that based on the Applicant’s case in these proceedings, this may not have altered the course of events, but rather delayed the events.62 Further, Mr Rodgers said that the Company did not wish to terminate the Applicant’s employment and that if the Applicant had submitted for urine screening at any time up to 16 February 2016 – the date of dismissal – the Applicant would still be employed.

Other issues raised by the Applicant

[97] The Applicant tendered a series of notes she made about employment related issues. In those notes the Applicant details working in extremely hot conditions causing her significant discomfort. The notes discuss “invasive drug testing” and the dismissal of two employees who had advised management of the Respondent that they had been using cannabis and had tested positive for drug use in or around October 2020. The Applicant’s notes also state that the employees concerned had not been offered counselling or asked if they had issues contributing to their drug use.

[98] The Applicant’s notes refer to staff shortages and workload issues and problems with the Respondent’s computer systems adding to frustrations in the workplace. There are references to failure of the Respondent to replace staff who had been dismissed for positive drug tests. There are also references to the Applicant’s dissatisfaction with pay rates and whether she should be classified as “retail” rather than “trade”. Further, the Applicant refers in the notes to feeling dehydrated and exhausted as a result of working in a shed without insulation or air-conditioning and to the embarrassment suffered by her as a result of excess sweating due to these conditions.

Submissions

[99] In summary the Applicant’s submissions are as follows. The Respondent’s decision to stand the Applicant down and then to dismiss her for refusing to undertake urine screening was harsh because the Applicant was an internal sales-person and was not required to drive Company vehicles or operate machinery. The dismissal was unreasonable because the Applicant had a personal medical condition and the chosen testing method was invasive. Further the Applicant could have been swab tested to prove that she was fit to carry out her sales duties. The Company’s Drug and Alcohol Policy does not state that urine testing is the only method of testing and provides for other methods which could, and should, have been used in the Applicant’s case.

[100] The Applicant also submitted that her dismissal was unjust because she was never contacted by Lyndon’s senior management to see if there could be a discussion about the situation and how to proceed given her medical condition at the time the Applicant was required to provide a urine specimen. The decision to dismiss the Applicant was also said to have been made by senior management with prejudice, because they were under the impression that the Applicant had refused the test rather than that she had presented with a personal medical condition. The reason for dismissal was not valid because it was not based on the facts.

[101] The Applicant also submitted that her medical condition had been ongoing for a few months and the failure of the Respondent’s senior management to meet with her to discuss her reasons for refusing the urine screening test, deprived her of the chance to state her case personally. Instead, the Applicant was sent threatening emails requiring her to comply with the Company’s demands. The Applicant has at no time had any direct consultation or communication from senior management apart from what she perceives to be threatening and bullying emails. The Applicant has not refused to comply with the Company’s Policy.

[102] The Applicant described the effect of a urinary tract infection and asserted that it would have been extremely difficult for her to provide a specimen on 1 February and that if a swab test had been performed it would have shown that she was fit for duty. The Applicant also asserted that her medical condition had been an ongoing issue and she had been denied an opportunity to state her case personally to the Company’s management. Further, the Applicant said that while she understood the purpose of the policy, at no time did she pose a threat to the health and safety of employees or visitors. In this regard the Applicant contended that her position as Internal Salesperson did not require her to operate any machinery or to drive Company vehicles. The Applicant pointed to the fact that there was no dispute procedure for her to use in order to resolve her issue with the urine screening test on that date and that there was no reason to believe she would not have done so on this occasion. The Applicant contended that Mr Lee had failed to offer her access to a dispute resolution process and Ms Cobb failed to report to management of the Respondent that the Applicant had stated that she had a personal medical condition.

[103] The Applicant sought compensation in the maximum amount of 26 weeks pay. In response to a question from me as to whether, if there had been a discussion between the Applicant and management of the Company, the Applicant would have nonetheless maintained her position and insisted on a swab test, the Applicant said that she had always objected to urine testing and had not previously refused to provide a sample. In response to the proposition that the Applicant could have agreed to provide a sample at any point between 10 and 15 February 2021, the Applicant said that she had received threatening emails and believed that the Respondent had all the correct information. The Applicant agreed that she had not stated in her emails to the Respondent that she had a medical condition but said that:

“I was very distressed when I was stood down from my employment, and I don't know if you can see times that I was emailing back for my responses, and was emailing back extremely fast, once I received a response. And my fault, by not validating that, I fully accept that. And in hindsight, I would go back and change that.” 63

[104] The Applicant also said that Mr Bartkowski had stated in his evidence that there is a procedure to deal with persons presenting for testing with a medical condition and that Mr Bartkowski had failed to follow that procedure. In conclusion the Applicant submitted that her dismissal was unfair because:

•  Mr Rodgers decided to dismiss the Applicant without knowing that she had presented at the testing van with a medical condition and was therefore unable to come to the conclusion that the Applicant had not followed a lawful and reasonable direction;

•  The Applicant was treated as though she had blatantly refused to provide a sample when in fact she had stated on the testing form that she had a personal medical condition and had opted for a different testing method at the particular time;

•  The Applicant did not submit to a urine test between 2 and 16 February 2021 because she felt harassed and bullied and was in disbelief at the harshness of her treatment;

•  The Applicant was standing up for her human rights and when she responded to the Company’s correspondence did not know that the termination process was going on in circumstances where all relevant parties did not know the facts;

•  The Applicant was denied an opportunity to obtain evidence that she did have a medical condition at the relevant time because of her belief that relevant parties knew about her medical condition because she informed Mr Lee, Ms Cobb, Ms Arrow and Mr Bartkowski of the nature of her medical condition; and

•  The situation could have been resolved with communication and consultation.

[105] The Respondent submitted that the Applicant’s dismissal was not harsh, unjust or unreasonable within the meaning in the FW Act. The direction that the Applicant provide a urine sample for testing was lawful and reasonable and was made pursuant to the Respondent’s Drug and Alcohol Policy which the Applicant was required to comply with by virtue of her contract of employment. Clause 17 of the Applicant’s employment contract specifies the consequences that may follow in the event of lack of compliance with the Respondent’s policies. The Applicant provided no evidence that she was suffering from a medical condition on 1 February 2021. Other than mere assertion on the part of the Applicant that she had previously suffered from health issues in relation to urinary tract infections, there is no evidence of such a condition being suffered by the Applicant and she relies on the fact that she wrote “Not consenting. Personal medical reason” on the Drug Detection Au screening form. The Applicant also admitted that she had no diagnosis of urinary tract infection from a medical practitioner.

[106] In any event, on the Applicant’s case, put at its highest, is that if it is accepted that she was suffering from a urinary tract infection, it had dissipated by 9 February 2021. It was also submitted that the Applicant was informed in correspondence that all she had to do to return to employment was provide a urine sample, at any point between 8 and 15 February and that the Applicant was given a further chance to do this on 16 February 2021 during a meeting with Mr Lee. The Applicant did not avail herself of these opportunities.

[107] It was also submitted that the Commission should note that in the Form F2 Application for an unfair dismissal remedy filed by the Applicant on 19 February, there is no reference to the Applicant suffering from a medical condition at the point she refused to provide a urine sample. Rather the Form F2 states that the dismissal is unfair because: “The employer stated that I refused to submit to their drug testing immediately resulting in a positive test. At no time did I refuse to be tested (I have a witness statement to confirm). Swab testing is a method of testing listed in the company policies. I simply requested to be swab tested and was refused.”

[108] Further, there is no cogent evidence that supports the Applicant’s proposition that she was suffering from a medical condition on 1 February 2021. In this regard, it was submitted that the letter provided by the Applicant’s medical practitioner makes no mention of the Applicant suffering from a urinary tract infection and there is no mention of this in any of the Applicant’s correspondence with Mr Lee or Mr Rodgers prior to her dismissal. It was also submitted that none of the witnesses agreed with the Applicant’s characterisation of what occurred on 1 February 2021 and in particular, it defied belief that the Applicant did not ask Ms Cobb to record that the Applicant claimed to be suffering from a medical condition – specifically a urinary tract infection – in the statement she provided for the Applicant.

[109] In relation to the Respondent’s Drug and Alcohol Policy, it was submitted that the Applicant signed an acknowledgement that she had received the Policy and was provided with training about its terms. The Applicant’s evidence was that during that training she had questioned the Respondent’s use of urine testing and asked the trainer why the Respondent chose to have a testing method the Applicant described as “invasive”. This indicates that the Applicant knew that urine testing was the testing method used by the Company and that at no time was the Applicant under any illusion that employees had a choice in this regard.

[110] The Applicant was stood down on 1 February when she refused to take the test and was formally and repeatedly directed to comply with the Respondent’s Policy and the repercussions of failing to do so. The Applicant did not make any reference to suffering from a medical condition in any of her responses. On 8 February 2021, the Applicant asked why the Company was prolonging the situation and stated that other employees had been sacked in the same circumstances – effectively inviting the Respondent to terminate her employment. The Applicant received a personal response from the CEO of the Respondent stating that there was no desire to terminate her employment or place the Applicant under financial difficulty and insisting that she comply with the lawful and reasonable direction to undertake a urine test administered by the Company’s authorised representative, consistent with the Policy and the Applicant’s contract of employment.

[111] The Applicant was also informed that if she complied with this direction, she could immediately return to work, subject to a clear test. This cannot be characterised as bullying or threatening the Applicant but rather, a last-ditch effort to give the Applicant an opportunity to comply with the Policy and undertake a urine test. The Applicant’s proposition that there was a pre-determined outcome, is not supported by the evidence. Again, in her response to Mr Rodgers’ email, the Applicant does not mention a urinary tract infection.

[112] It was also submitted that the Applicant simply pursued her personal view and preference for swab testing and believed that she should be the one to choose the testing method. The testing method is not a debate for the Commission. The Respondent had a Policy. The Applicant had a contract of employment requiring compliance with that Policy and was put on notice as to the ramifications of not complying and still refused to do so. The Applicant was given multiple chances to comply with the direction. The Applicant was also given an opportunity to respond to the allegations and did not request a support person. In relation to the submission that there was no personal contact from management, it was contended that there was contact from Mr Lee by telephone and in writing and an email from the Respondent’s CEO. Further, the Respondent’s CEO met with the Applicant to discuss her concerns about the testing method before the events that led to the dismissal.

[113] It was submitted in the alternative, that if the Commission found that the dismissal was unfair, any compensation received by the Applicant should be at the lower end. In this regard, it was submitted that even if the Applicant had been allowed to return to work without providing a urine sample, there is every chance that the Applicant would have refused to take a urine test in the future. There was demonstrated conduct from the Applicant that nothing was going to move her from the position about urine testing versus swab testing.

[114] In submissions in reply, the Applicant said that if Mr Bartkowski’s evidence is accepted, if she had stated that she had a urinary tract infection he would have sought instructions from the Company about alternative testing methods. Accordingly, Mr Bartkowski could have sought advice when the Applicant stated that she had a medical condition. The Applicant also pointed to the failure by the Respondent to pay her in lieu of notice on termination and said that this amount was paid after the Respondent had attended a conciliation conference and the Respondent had admitted that the failure to make such payment was a mistake. The Applicant submitted that this indicates that she did not engage in serious misconduct.

Consideration

[115] I turn now to the consideration of the matters in s. 387 of the FW Act.

Whether there was a valid reason for the Applicant’s dismissal related to capacity or conduct

[116] The reason for the Applicant’s dismissal was that she failed to comply with a lawful and reasonable direction to undertake a urine test as required by the Respondent’s Drug and Alcohol Policy and the Applicant’s contract of employment, after being given opportunities to comply with that direction and in the face of a warning that she would be dismissed if she did not comply. It is also the case that while the Respondent asserts that the Commission should not accept the Applicant’s evidence that she was suffering from a medical condition at the time of her refusal to provide a urine sample, the Respondent does not assert any dishonesty on the part of the Applicant in relation to that claim as a valid reason for the Applicant’s dismissal. Rather, the Respondent asserts that the Applicant was not suffering from a medical condition to establish that her refusal to comply with the direction was unreasonable.

[117] The Applicant contends that she did not refuse to comply with the Policy based on her view that she could choose an alternative testing method. The Applicant also contends that the requirement that she submit to a urine test and provide a urine sample on 1 February 2021 was not lawful and reasonable because she was suffering from a medical condition – namely a urinary tract infection – and informed the persons conducting the test and the Respondent’s managers that this was the case. Further, the Applicant contends that her dismissal could not have been for a valid reason in circumstances where Mr Rodgers did not know when he decided to dismiss her, that she claimed on 1 February 2021 to have been suffering from a medical condition.

[118] In addition, the Applicant contends that the following matters are a basis for the Commission to find that her dismissal was not for a valid reason. Firstly, the Applicant submits that her selection for testing on 1 February 2021 was not random and that she was targeted for testing on that date. Secondly, the Applicant points to the failure by the Respondent’s managers to ask her to explain her reasons for not submitting to a urine test. Thirdly, the Applicant contends that the Respondent failed to have a face-to-face meeting with her which would have resolved the matter and escalated the situation by sending threatening correspondence to her. Fourthly, the Applicant asserts that the Policy was deficient because it did not provide for a procedure to deal with employees who presented with medical issues which could prevent them from undergoing a urine test and/or that the Applicant’s advice that she had a medical issue was not properly dealt with by Mr Bartkowski and Ms Arrow.

[119] I do not accept the Applicant’s assertion that she did not refuse to undergo testing and simply exercised her right to elect to undertake a saliva test rather than a urine test. The Applicant had no such right under the Policy. The Policy provides for the Respondent to conduct drug and alcohol testing for a range of reasons and using a variety of methods. The methods of testing are broadly expressed and are not limited to those expressed in the Policy which include breath test, urine sample, oral swab or blood test. The Policy does not preclude multiple methods of testing being used. The Policy also provides that a new technology not listed in the Policy may be used for testing. Notwithstanding the breadth of the description of testing methods in the Policy, the method used for testing is at the discretion of the Company.

[120] The Policy does not give employees the right to select the method by which they will be tested. Further, the Policy does not give employees the right to refuse to undertake a test unless a particular method of testing is used or to insist on a particular method of testing. Consistent with its right to nominate its preferred testing method, the Respondent nominated testing by way of urine sample. If the Applicant was suffering from a medical condition which she believed made it difficult or impossible to provide a sample, the Policy did not give the Applicant the right to demand a different method of testing.

[121] I have considered whether the Applicant could have reasonably believed that she had a right to opt for a particular type of testing and I do not accept that this is the case. In my view, the Applicant’s own evidence establishes that she knew that the method of drug and alcohol testing used by the Respondent was urine screening. This is evidenced by the Applicant’s agitation of her view that urine testing is “invasive” and that saliva testing is preferable, on numerous occasions, commencing during the training course she attended about the Policy on 19 March 2019. Thereafter, the Applicant continued to agitate about this issue in emails and discussion with various managers of the Respondent up to and including the Chief Executive Officer.

[122] The Applicant conceded that she was aware of the testing method used by the Respondent when she emailed Ms Whitaker on 19 November 2020. The Applicant also demonstrated her awareness of the Respondent’s testing method in the notes she tendered and her evidence about the discussion she had with Mr Rodgers on 27 November 2020. The level of angst and hostility evidenced by the Applicant’s communication in relation to urine screening as a means of drug and alcohol testing, would have been unnecessary if she believed that the Policy allowed her to select the method of testing that she preferred. The Applicant received responses which disabused her of her view before 1 February 2021.

[123] Accordingly, on 1 February 2021, when the Applicant attended at the Drug Detection Au testing van, she knew that urine testing was required by the Respondent and that the Company had not altered its position in this regard as a result of her agitating (including to the Chief Executive Officer) for saliva testing to be undertaken instead of urine testing. On her own evidence, the Applicant also knew that Drug Detection Au was not engaged by the Respondent to provide saliva testing. Notwithstanding this, the Applicant insisted that she would only agree to undertake saliva testing on 1 February 2021 and that she would not provide a urine sample. I accept the evidence of Ms Arrow and Mr Bartkowski that the Applicant was arguing about the terms of the Policy and insisting on her right to be swabbed. I find that the Applicant did this in circumstances where she knew that she did not have such a right.

[124] Even if the Applicant maintained the view that she had the right to choose the method of testing when she entered the testing van, I am satisfied and find that Mr Bartkowski told her that she did not have the right to opt for swab testing. Further, in the correspondence from the Company after the Applicant’s refusal to undertake urine testing, she was clearly informed that the Company did not accept her interpretation of the Policy and that it was incorrect. Even in the face of this advice, the Applicant continued to press her views about the Policy. Accordingly, I am satisfied that the Applicant knowingly chose to refuse the direction to undertake a urine test and to provide a sample for this purpose.

[125] There is nothing unlawful or unreasonable about the Policy per se that could be relevant to the lawfulness and reasonableness of a direction to comply with the Policy. The Respondent is a supplier of machinery, tools and materials to the construction industry. It is reasonable and legitimate that the Respondent has a program providing for drug and alcohol testing as part of a Policy reflecting its commitment to a safe workplace and preventing or minimising risk of injury or harm to the health and safety of its workers or others at the workplace.

[126] The Policy is expressed to apply to all employees and all persons performing work at the direction of the Respondent. It is reasonable and legitimate that such a policy applies to all employees of the Respondent equally regardless of the work they are required to perform. There is nothing unreasonable about a direction to comply with a Policy which requires managers and office-based staff to adhere to the same rules and values with respect to drugs and alcohol in the workplace, as those working on construction or other sites or with machinery and equipment. Office based staff or sales staff are not immune from risk of injury or harm associated with drugs or alcohol in a workplace and site-based staff may legitimately complain if the same standards are not uniformly applied across an enterprise.

[127] The Policy also provides that a worker (which includes a contractor) may be required to undertake a drug screen and/or alcohol screen test and will be requested to sign a consent form before taking such test. The Policy does not require that the worker consent to a test or sign a consent form. Rather, it states that the result of a refusal to consent will be treated by the Company as a breach of the Policy and may be dealt with accordingly, by the Company taking action against the worker for such breach. The possible action that may be taken against a worker who is an employee, is stated to be disciplinary action which may include termination of employment. There is nothing inherently unreasonable about a direction to undergo a drug and alcohol test pursuant to a policy containing such provisions.

[128] It is not in dispute that the Applicant’s contract of employment required her to comply with the Respondent’s policies including its Drug and Alcohol Policy. Accordingly, a requirement for the Applicant to undertake a urine test was a direction to comply with a policy of the Respondent. That direction was related to the subject matter of the Applicant’s employment by virtue of her contract of employment and therefore fell within its scope. The Policy provides that the Respondent may require employees to undertake testing for the presence of drugs or alcohol in circumstances set out in the Policy. The Policy constitutes a standing direction to employees to undertake testing in accordance with the Policy.

[129] I turn now to consider the Applicant’s assertions about the lawfulness and reasonableness of the direction. The Applicant provided no evidence or submissions upon which I could conclude that the direction to undertake a urine test was not lawful. Allowing for the fact that the Applicant is self-represented, I have considered the Policy in some detail and I can see no basis for finding that the direction to comply with it was unlawful. Accordingly, I find that the direction was lawful. I also find that the direction was related to the subject matter of the Applicant’s employment and fell within its scope. Accordingly, the Applicant was required to comply with the direction unless it was unreasonable.

[130] I do not accept that the medical condition that the Applicant claimed to be suffering on 1 February 2021, is a basis for finding that the direction to undergo a urine test was unreasonable. I have difficulty in accepting the Applicant’s assertion that she was suffering from a urinary tract infection on 1 February 2021. The only contemporaneous evidence that the Applicant had a medical reason for refusing to undergo a urine test on that date, is that the Applicant made a notation on the Drug Detection Au Screening Form stating: “Not consenting personal medical reason”. However, there is a significant amount of evidence to the contrary. The Applicant insisted that she stated to Mr Lee, Ms Arrow, Ms Cobb and Mr Bartkowski that she had a urinary tract infection. Those persons gave evidence and accepted that the Applicant stated that she had a medical reason or condition as a basis for not providing a urine sample but denied that the Applicant said that she had a urinary tract infection. They did not depart from that position under cross-examination.

[131] At the Applicant’s request, Ms Cobb wrote a contemporaneous note confirming the discussion she had with the Applicant on 1 February 2021 in relation to her reason for refusing to provide a urine specimen. The note does not refer to the Applicant stating that she had a urinary tract infection and records that the Applicant requested a different method of testing due to “personal reasons” and that the Applicant stated that the Policy mentions swab testing as a method of testing. In my view it is improbable that the Applicant would have gone to the trouble of requesting that Ms Cobb be a witness to a conversation and prepare a contemporaneous note which was signed and dated by Ms Cobb on 1 February and given to the Applicant and would not have raised with Ms Cobb that the note was not accurate. This is rendered more unlikely by the fact that the Applicant knew that urine testing was the method required by the Respondent and that Drug Detection Au was not engaged to provide swab testing. That this was discussed is also recorded in Ms Cobb’s note. Further, the Applicant knew that her failure to provide a sample would be recorded as a failure and that there would be repercussions under the Policy and had also been reminded of this by Mr Bartkowski. In these circumstances, it is improbable that the Applicant would not have at least raised (on the Applicant’s version of events) a significant inaccuracy in the note, with Ms Cobb and sought a correction. The Applicant did not take this step and I do not accept her explanation for the failure.

[132] The Applicant, Ms Arrow, Ms Cobb and Mr Barkowski also gave evidence of a conversation conducted by speaker phone with Mr Bartkowski. The Applicant maintains that she informed Mr Bartkowski that she had a urinary tract infection during that conversation. As previously noted, the other participants in the conversation dispute this. Further, Mr Bartkowski was adamant in his evidence that during the discussion the Applicant was focused on debating the Policy and insisting that it gave her an option to choose to be swab tested and that she was not refusing to be tested but seeking an alternative testing method, rather than stating the reason for her position. Mr Bartkowski was also adamant that when he requested that the Applicant advise her reasons for refusing the urine test, the Applicant stated “personal reasons”. Ms Arrow supported Mr Bartkowski’s version of the conversation and detailed her recollection which also included that the Applicant was debating the meaning and application of the Policy and insisting that she had an option to be swab tested. Ms Cobb also supported the evidence of Mr Bartkowski and Ms Arrow about this conversation and it is reflected in the terms of her contemporaneous note.

[133] The Applicant also gave evidence of having spoken to Mr Lee before going to the van and before she spoke to Ms Cobb and said that she informed Mr Lee that she would not be providing a urine sample because she had a urinary tract infection. While I accept that the phone call took place, I do not accept that the Applicant told Mr Lee at that time that she had a urinary tract infection and that this was the reason that she intended to refuse the test. Mr Lee’s evidence is that he did not know that the Applicant was suffering from a medical condition, much less the specific details of that condition before the decision to dismiss the Applicant was made. Mr Lee also maintained that he had not seen the Drug Detection Au Screening Form on which the Applicant wrote “personal medical reason” prior to the decision to dismiss the Applicant.

[134] In circumstances where the Applicant did not tell Ms Cobb, Ms Arrow or Mr Bartkowski the nature of her personal or medical reason for refusing to provide a urine sample, it is improbable that she imparted that information to Mr Lee. It is equally improbable that if Mr Lee knew that the Applicant was claiming to have a urinary tract infection, or even a medical condition, he would not have relayed that information to Mr Rodgers. I am also of the view, for reasons set out below, that the reference by the Applicant on 1 February 2021 to making a doctor’s appointment was consistent with her stated intention to have her doctor perform an oral swab test rather than to obtain certification in relation to a medical condition. Therefore, the fact that the Applicant told Mr Lee that she would be going to her doctor, would not have alerted him to the possibility of a medical condition but rather confirmed the Applicant’s previously stated views that oral swab testing was her preferred form of testing, notwithstanding that this was inconsistent with the Respondent’s policies.

[135] Additionally, the Applicant’s failure to mention that she had a urinary tract infection, much less a medical condition, in any of the correspondence where she responded to the allegation that she had refused to comply with a lawful and reasonable direction to provide a urine sample, is striking. I do not accept the Applicant’s explanation for this failure. The Respondent asserted in writing on three separate occasions prior to the Applicant’s dismissal, that her refusal to provide a urine specimen on 1 February 2021, was a failure to comply with a lawful and reasonable direction to provide a urine sample, which could result in disciplinary action up to and including termination of the Applicant’s employment. It is highly improbable that the Applicant, who now claims that the refusal was reasonable because she had a urinary tract infection, would fail to mention this fact in any of her responses to that correspondence. This failure is also at odds with the Applicant’s evidence in these proceedings, during which she repeatedly asserted that it was reasonable for her to refuse to submit to an invasive test by providing a urine sample in circumstances where she had a urinary tract infection.

[136] If more support for the improbability of the Applicant’s evidence on this point is needed, I also consider that the Applicant’s evidence about attending her doctor is inconsistent with her assertion that she was suffering from a urinary tract infection on 1 February 2021. Ms Cobb said that the Applicant informed her that she intended to make an appointment with her doctor to have a swab test and would attempt to have such a test carried out at the police station on her way home from work and this would enable the Applicant to cancel her doctor’s appointment, thereby avoiding the payment of a fee. The Applicant insisted that she made no comment about avoiding paying a fee to her doctor by having the swab test conducted at a police station on the basis that her doctor bulk bills and she would not be required to pay a fee. The Applicant accepted that she did state to Ms Cobb that she would attempt to have an oral swab test carried out at the police station. Ms Arrow also said that the Applicant was talking about going to her doctor to have a swab test performed and Ms Arrow stated to the Applicant that this would not be accepted. In short, the Applicant did not indicate that she was attending her doctor for the purpose of verifying that she had a urinary tract infection or even for purposes including that verification.

[137] When the Applicant did attend her doctor on 9 February 2021, she did not inform the doctor that her reason for refusing to provide a urine specimen on 1 February 2021 was that she had a urinary tract infection. Rather, the doctor’s letter tendered by the Applicant, records that the Applicant stated to the doctor that she had refused to undertake a urine drug test and that she found the test “invasive” and had offered to have a mouth swab instead. Significantly, the doctor’s letter makes no reference to the Applicant having stated that her reasons for refusing the urine test included that she was suffering from a urinary tract infection, or even a medical condition, at the time. This omission is glaring. At the point the Applicant attended the doctor she had received correspondence stating that the Respondent viewed her refusal to provide a urine specimen as a refusal to comply with a lawful and reasonable direction. The Applicant’s case at the hearing of her unfair dismissal application, centred on the assertion that her medical condition provided a reasonable basis for refusing to provide a urine sample. If this had been the Applicant’s position prior to the dismissal, it is highly improbable that the Applicant would not have informed her doctor of this, despite her distress when attending the appointment. I also note that this distress did not stop the Applicant articulating her view that a urine test is invasive and that she wanted to have an oral swab instead.

[138] Further, the letter from the Applicant’s doctor is not contemporaneous with her visit on 9 February 2021 and was probably obtained for the purposes of the Applicant tendering the letter in support of her unfair dismissal application. The doctor’s letter is dated 30 March 2021, and the Applicant’s material for the hearing was required to be filed by 31 March 2021. I also note that other than attaching the Drug Detection Au Screening Form to her Form F2 Application for an unfair dismissal remedy, the Applicant made no mention in that application of a medical issue or urinary tract infection having any relevance to her claim of unfair dismissal.

[139] Finally, I note the view that urine testing is invasive is one that the Applicant held from at least 19 March 2019 when she attended the training program conducted by Mr Bartkowski in relation to the Respondent’s Drug and Alcohol Policy and was repeated by the Applicant on multiple occasions to managers of the Respondent from the Chief Executive Officer down. That view was not limited to 1 February 2021 when the Applicant said that she was suffering from a urinary tract infection. The Applicant’s agreement to undertake a urine screening test in October 2018 does not establish that her position on this point in February 2021 was because of a medical condition she was suffering at that time. To the contrary, it is equally probable that the Applicant had hardened her previous position by February 2021.

[140] It is clear from the Applicant’s evidence that in the months prior to 1 February 2021, she was becoming increasingly angry about the conditions under which she worked, the workload at the Maroochydore Branch and her belief that management of the Respondent was indifferent to these matters. On her own evidence the Applicant was angered by the dismissal of two work colleagues from Maroochydore who failed drug screening tests in or around October 2020. In passing, I also note the Applicant’s evidence that she had undertaken studies related to drug and alcohol abuse. Clearly, the Applicant was passionate about this issue and held strong views about how it should be managed in the workplace. Those views had crystallised into a general opposition to urine screening by 1 February 2021 when the Applicant was required to undertake such a test.

[141] Even if I accepted that the Applicant did have a urinary tract infection on 1 February 2021 that medical condition would not have resulted in the Applicant’s refusal to provide a urine specimen being reasonable. In this regard, I accept Mr Bartkowski’s evidence that he would have informed the Applicant that having a urinary tract infection was not a legitimate basis to refuse to provide a urine sample and that she was required to comply with the Policy and that there would be disciplinary implications if she did not do so. Having observed the Applicant giving her evidence and hearing her views about the invasiveness of urine testing being repeated at every possible opportunity, I find it improbable that the Applicant would have departed from her position in this regard on 1 February 2021 if Mr Bartkowski had informed her of his view that a urinary tract infection was not a basis for refusing a urine screening test.

[142] I do not accept the Applicant’s contention that her selection for testing on 1 February 2021 was not random and that she was targeted for testing on that date. The Policy provides that random testing may be conducted by selection of a group of workers or a worker, and that testing will be random where a worker or group is nominated and is not notified in advance of the testing. I accept Mr Bartkowski’s evidence about how random testing is conducted. I also accept that the Applicant was randomly selected for testing on 1 February 2021 by virtue of a list generated by Drug Detection Au. Even if the Applicant was pre-selected for testing on that date because she had not been tested in late 2020, her selection was still random by virtue of management at the Maroochydore site not being informed in advance that testing would occur on 1 February 2021.

[143] I accept that in correspondence to the Applicant after her refusal to undertake a urine test on 1 February 2021, the Respondent’s managers failed to ask her to explain the reasons for refusal. However, the Applicant was dismissed for refusing to follow a lawful and reasonable direction. The fact that the Respondent did not ask the Applicant the reason for her failure, is not relevant to the issue of whether that failure was a valid reason for dismissal. Similarly, the fact that Mr Rodgers was not aware of the Applicant’s claim to have been suffering a medical condition, is not relevant to the validity of the reason for her dismissal. If a medical condition was a basis for the Applicant’s assertion that the direction to submit to a urine test on 1 February 2021 was unreasonable, then she should have stated this in her response to the allegations. The Applicant had many opportunities to do so. It should also have been clear to the Applicant that the Respondent was disregarding the information she claimed to have provided about her medical condition and that she needed to re-state that information in her response to the allegations.

[144] The Respondent set out an ostensibly valid reason for dismissing the Applicant in three pieces of correspondence sent to her in advance of the dismissal. The reason for dismissal was expressed as a proposition to the effect that the Applicant had refused to comply with a lawful and reasonable direction to undergo urine testing in accordance with the Respondent’s Drug and Alcohol Policy. The proposition accurately reflected the Respondent’s view (and the view of Mr Rodgers) about the Applicant’s conduct and the issue that it considered warranted possible disciplinary action. The Applicant received and understood that correspondence and it was incumbent on her to explain the reasons for her refusal or the reasons why she asserted that she had not refused a lawful and reasonable direction. In short, it should have been patently obvious to the Applicant that she was required to respond to the allegation of refusal to comply with a lawful and reasonable direction by stating the reasons for her conduct. Instead, the Applicant decided to stand her ground and persist with assertions that she had been informed would not be considered an acceptable response to the allegations and failed to mention the principle basis upon which she asserts in the Commission that the request was unreasonable.

[145] On her own evidence, the Applicant is an “over-sharer” and there is no reasonable explanation for the Applicant’s failure to include the fact that she claimed to have been suffering from a medical condition, specifically a urinary tract infection, on 1 February 2021, in her response to the allegations made in three pieces of correspondence sent to her by the Respondent.

[146] The fact that the Application made a notation on the Drug Detection Au Screening Form that she was refusing consent for a person medical reason, did not create an onus on the Respondent to ask the Applicant why she had refused the test or about the nature of the medical reason for her lack of consent to supplying a urine sample. The term “medical reason” is not synonymous with the term “medical condition” and does not make clear that the Applicant was suffering from a particular medical condition when she refused to undertake a urine test. The fact that the Applicant was upset at the tone of the correspondence from the Respondent does not explain her failure to properly respond to it.

[147] I do not accept that the manner of an employee being informed of a reason for dismissal is determinative of the validity of that reason. An employer can rely on a reason for dismissal to satisfy the requirements in s. 387(a) where the reason is not known at the time the employee is dismissed. A reason for dismissal may be valid even in circumstances where the employee is not informed of the reason before being dismissed. A failure to inform an employee of a reason for dismissal before effecting a dismissal may be relevant to the question of whether the employee has been afforded procedural fairness, but this is a separate consideration from the consideration of whether there is a valid reason for dismissal. It follows that a face-to-face meeting to discuss the reason for dismissal is also not determinative of its validity. It was not unreasonable for the Respondent, when confronted with an employee who it believed had failed to comply with a Policy, to communicate its views about this by position

[148] The Applicant also points to the fact that the Drug and Alcohol Policy does not clearly specify the steps that will be taken by testing staff if a worker reports to the testing van and states that he or she has a medical condition which the worker believes precludes the provision of a urine sample, as a basis for asserting that there was not a valid reason for her dismissal. In the present case this lack of clarity does not impact the validity of the reason for dismissal. Despite the fact that the Policy does not specifically deal with this situation, Ms Arrow and Mr Bartkowski dealt with the Applicant in an appropriate manner on 1 February 2021. I accept their evidence about the discussion with the Applicant on that date. That evidence was confirmed by Ms Cobb.

[149] Confronted with the Applicant’s position that she did not consent to providing a urine sample and wanted to be swab tested, in purported compliance with the Policy, Ms Arrow contacted her supervisor, Mr Bartkowski and sought his assistance in dealing with the issue. I accept Mr Bartkowski’s evidence that he asked the Applicant for details of her medical condition and that the Applicant did not state the nature of her condition and instead, debated her view that she had the option to select an alternative testing method. I also accept that had the Applicant informed Mr Bartkowski that she was suffering from a urinary tract infection, Mr Bartkowski would have informed her that she was still required to take the test and that he did not accept that this was a reason for refusing. Mr Bartkowski may also have informed the Applicant that she should obtain a medical certificate to support her claim. However, that medical certificate may not have been accepted as a reasonable basis for refusing the test and in any event, it was for the Applicant to inform the testing staff of the reason for her refusal to comply with the Policy, which she failed to do. The Applicant did not inform Mr Bartkowski or Ms Arrow that she was suffering from a urinary tract infection and this failure on the part of the Applicant was the major contributing factor to any deficiency in their dealings with her on 1 February 2021.

[150] In her evidence to the Commission, the Applicant took issue with the treatment of other staff who have been dismissed following a positive test for drugs or alcohol. The Policy provides for self-reporting by employees who may have issues with drugs and/or alcohol and for support and assistance to be provided to those employees. The Applicant’s allegations of unfairness to other employees go to the application of the Policy to those employees, rather than the reasonableness of the direction to the Applicant to undergo a test. Accordingly, they are not relevant to the issues in dispute in this case and I do not intend to deal any further with these matters.

[151] Another issue raised by the Applicant was that she had not been provided with a copy of the Policy during her employment. Contrary to the Applicant’s assertions, she signed a declaration that she had been provided with a copy of that Policy. In any event, for the reasons set out above, I am satisfied that the Applicant understood the Policy and in particular that she was required to undertake a urine test when directed to do so.

[152] For these reasons I am satisfied and find that the Applicant refused to comply with a lawful and reasonable direction to undergo a urine test on 1 February 2021 and that she had no reasonable basis for the refusal. The Applicant’s contract of employment required her to comply with various policies of the Respondent and she was therefore contractually bound to do so. The Drug and Alcohol Policy gave the Respondent the right to determine the kind of testing that employees would be required to undergo. The direction to comply with the Policy involved no illegality and was lawful. Further the direction was reasonable and the Applicant did not establish prior to her dismissal or at hearing, that she had a reasonable excuse for refusing to comply with the direction.

[153] I am also satisfied that the Applicant unreasonably maintained her refusal to undertake a urine test. On the Applicant’s own evidence, by 9 February 2021, she had recovered from the medical condition which she claims prevented her from undertaking the test on 1 February 2001. The Applicant also accepted that she knew from correspondence sent to her by the Respondent, that she could elect to undertake the test at any time up to 15 February 2021 and that Mr Lee offered her a further opportunity to undergo a test at a meeting on 16 February 2021. The Applicant states that she stood her ground in the face of what she perceived to be bullying and declined to undergo the test. I do not accept that this is a reasonable basis for the continued refusal to undertake the test. Procedural fairness required that the Respondent put to the Applicant the allegations of refusal to comply with a lawful and reasonable direction. On no reasonable view can the correspondence to the Applicant between 2 and 8 February 2021 be described as bullying. That correspondence clearly and unequivocally sets out the allegation against the Applicant and the view that the Respondent is taking about her conduct. On her own evidence, the Applicant had previously undertaken a urine screening test, and between 9 February and 16 February when the Applicant was dismissed the Applicant had no reason to continue her refusal other than she made a conscious decision to stand her ground and refuse the urine test on principle.

[154] I also note that the CEO of the Respondent Mr Rodgers, sent an email to the Applicant on 8 February 2021 stating that all she was required to do to return to work was to undertake a urine screening test in accordance with the Policy. That communication makes clear that regardless of the Applicant’s reasons for refusal, and her failure to explain those reasons to the Respondent’s satisfaction, she still has an option to comply with the Policy and return to work. That option continued to be available until 16 February 2021 – the date that the Applicant was dismissed.

[155] The Applicant is entitled to stand her ground and refuse to comply with a direction to undertake a urine screening test on principle. However, the direction was lawful and reasonable, and the Applicant’s continued unreasonable failure to comply with it, in the face of a clear communication advising that this would lead to disciplinary action up to and including termination of the Applicant’s employment, was also a valid reason for dismissal.

Whether the Applicant notified of that reason?

[156] As a Full Bench of the Commission observed in Crozier v Palazzo Corporation Pty Ltd 64 procedural fairness requires that an employee be notified of a valid reason for dismissal before any decision to dismiss is taken, so that the employee is provided with an opportunity to respond to the reason identified. In the present case I am satisfied that the Applicant was notified of the reasons for her dismissal consistent with this provision.

[157] The reason for the Applicant’s dismissal was that she failed to comply with a lawful and reasonable direction to undertake a urine test as required by the Respondent’s Drug and Alcohol Policy and the Applicant’s contract of employment, and that the Applicant continued to refuse this direction. The reason for the Applicant’s employment being in jeopardy and the reason that she was ultimately dismissed, was clearly set out in three pieces of correspondence sent to the Applicant prior to the dismissal. The fact that the correspondence did not ask the Applicant to explain the reason for her refusal to undertake a urine test, is not a basis to find that the Applicant was not notified of the reason for dismissal. The reason for dismissal was set out in sufficient detail for the Applicant to have been notified of that reason and it was not necessary for the Applicant to be asked for an explanation of her alleged refusal to comply with the direction, and her continued refusal to do so, in order for the Applicant to be provided with sufficient detail to enable her to respond.

Whether the Applicant was given an opportunity to respond to any reason related to capacity or conduct?

[158] I am satisfied that the Applicant was given an opportunity to respond to the reasons for her dismissal. While the Applicant’s responses were deficient this was not because of any lack of opportunity to provide those responses. The failure of the Applicant to respond appropriately to the allegations about her conduct was not because of any lack of clarity about the allegations. The reasons the Applicant’s employment was in jeopardy could not have been clearer and were set out in three separate pieces of correspondence. The Applicant accepts that she understood the correspondence and provided no reasonable basis for her lack of a proper response.

[159] While a face-to-face meeting may have provided the Applicant with an alternative means to provide a response to reasons for dismissal related to her conduct, there is no legislative requirement that such a meeting occur. I do not accept that the Applicant was denied an opportunity to put her position to senior management of the Respondent because there was no face-to-face meeting before the decision to dismiss her was made. Mr Rodgers, the CEO of the Respondent, personally communicated with the Applicant by email informing her that the Company did not wish to terminate her employment but simply sought her compliance with a lawful and reasonable direction.

[160] If the Applicant genuinely believed that the Respondent knew that she was claiming that she could not comply with the direction to undertake a urine test because of a medical condition, and that she would comply with the direction when the medical condition had resolved, then she had ample opportunity to state this in her written responses to the Company’s correspondence. Instead, the Applicant continued to press arguments which she had been informed that the Company did not accept.

[161] Regrettably, I can only conclude that the Applicant used her opportunity to respond to the reasons for her dismissal, to advance her views about drug and alcohol testing and to effectively dare the Company to dismiss her, rather than to provide a proper response.

Whether there was an unreasonable refusal by the employer to allow the Applicant to have a support person to assist at any discussions relating to dismissal?

[162] There were no in-person discussions about the reasons for dismissal. The Applicant did not request a support person and there was no refusal for her to have a support person. Accordingly, this consideration is not relevant in the circumstances of the present case.

If the dismissal related to unsatisfactory performance by the Applicant—whether the Applicant was warned about that unsatisfactory performance before the dismissal?

[163] The Applicant’s dismissal related to her conduct. I am satisfied that the Applicant was warned about her conduct in the correspondence sent to her between 2 and 8 February 2021. As previously noted, the correspondence could not have been clearer insofar as it set out the allegation that the Applicant had failed to comply with a lawful and reasonable direction. However, this consideration is also not relevant in the circumstances of the present case.

What was the degree to which the size of the employer’s enterprise was likely to have impacted on the procedures followed in effecting the dismissal?

[164] The Respondent is a large employer and the size of the Respondent’s enterprise is not likely to have impacted on the procedures followed in effecting the dismissal. Further, there is no evidence of any such impact.

What was 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?

[165] The Respondent has dedicated human resource management staff and the absence of such expertise is not likely to have impacted on the procedures followed in effecting the dismissal. There is no evidence of any such impact.

Are there any other matters that the FW Commission considers relevant?

[166] I consider that the following matters are relevant to my overall consideration of whether the dismissal was unfair. The Applicant’s uncontested evidence is that she was a hardworking employee with an impeccable employment record. There is no evidence to the contrary from the Respondent. I do not doubt that the Applicant will have difficulty obtaining other employment in the current environment and in light of the fact that she was dismissed and the reasons for her dismissal.

[167] In circumstances where I have found that for dismissal exists, and procedural fairness has been afforded, these circumstances are not of such significance that they to lead to a conclusion that the termination is nevertheless harsh, unjust or unreasonable. Termination of employment in the circumstances of this case is also not outside the range of reasonable responses to the Applicant’s conduct, in light of the opportunities she was given to comply with a lawful and reasonable direction.

Was the Applicant unfairly dismissed?

[168] After weighing the matters in s. 387 of the Act I have concluded that the Applicant’s dismissal was not unfair. The Applicant knowingly and wilfully defied a lawful direction to undertake a urine test in circumstances where she was required by her contract of employment to comply with that direction and it was reasonable.

[169] The Applicant was entitled to hold personal views about the appropriate method for workplace drug and alcohol testing. The Applicant was also entitled to express those views to the Respondent’s management and at training programs she attended, provided she did so in a reasonable and appropriate manner. Further, if the Applicant was aggrieved about the way in which she perceived that the Policy was applied to work colleagues, it was not unreasonable for her to raise this with Mr Lee or another of the Respondent’s managers. Indeed, the Applicant raised these issues and Mr Rodgers met with the Applicant to discuss her concerns in this regard, notwithstanding the rudeness of the Applicant’s communication about her concerns.

[170] The Applicant was also entitled to refuse to undertake a urine screening test on principle. However, the Applicant was not entitled to insist upon her preferred method of testing in circumstances where she was lawfully required to undertake a test using a testing method chosen by the Respondent pursuant to its right to do so and that requirement was reasonable. If the Applicant had a reasonable basis to refuse to undertake a urine test on 1 February 2021, she did not have a reasonable basis to continue that refusal after 9 February 2021, when on her own evidence, her urinary tract infection had resolved.

[171] The Applicant states that she had no concern about passing a drug and alcohol test including a urine screening test, and I accept that this is the case. However, the Applicant’s principles and her conduct in maintaining her position in the face of warnings about the implications of her continued refusal to comply with a lawful and reasonable direction, were inconsistent with the continuation of her employment. In the face of the Applicant’s intransigence, the Respondent’s managers made every effort to give the Applicant an opportunity to comply with the direction and undertake the test. Even on the day of her dismissal, the Applicant could have complied with the direction and remained in employment. The Applicant refused to do so and maintained her position at the hearing of her unfair dismissal application.

[172] The Applicant has failed at the hearing to establish that the direction was unlawful and has also failed to establish that it was unreasonable. The Applicant simply decided to stand her ground and defy the direction. An employee who defies a lawful direction and who fails to establish that the direction was unreasonable, cannot expect to maintain that defiance in the face of warnings that dismissal will result, and not be dismissed.

[173] That the Applicant now seeks to argue that her dismissal was unfair, is entirely inconsistent with her correspondence to the Respondent, including on 8 February 2021, when the Applicant stated that she would maintain her defiance and not submit to urine testing and could not understand why the Respondent was prolonging the matter and had not dismissed her. The Applicant could not have been surprised when the Respondent took up her invitation. Accordingly, the Applicant was the effective architect of her dismissal and it was not unfair.

CONCLUSION

[174] For these reasons, I issued an Order 65 dismissing the Applicant’s unfair dismissal application.

DEPUTY PRESIDENT

Appearances:

The Applicant on her own behalf.

Mr T Spence of Counsel instructed by Optimum Legal for the Respondent.

Hearing details:

14 & 15 June.

2021.

Brisbane.

Printed by authority of the Commonwealth Government Printer

<PR733750>

 1   Exhibit A1 – Witness Statement of Kylie Desmond.

 2   Exhibit R1 – Witness Statement of Adele Arrow.

 3   Exhibit R2 – Witness Statement of Craig Bartkowski.

 4   Exhibit R4 – Witness Statement of Amanda Cobb.

 5   Exhibit R5 – Witness Statement of Mark Lee.

 6   Exhibit R6 – Witness Statement of Andrew Rodgers.

7 Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410 at 5; Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201 at 204.

8 Selverchandron v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

9 Rode v Burwood Mitsubishi Print R4471 at [90] per Ross VP, Polites SDP, Foggo C.

10 Miller v University of NSW [2003] FCAFC 180 at pn 13, 14 August 2003, per Gray J.

11 Bista v Glad Group Pty Ltd [2016] FWC 3009.

12 Heran Building Group Pty Ltd v Anneveldt [2013] FWCFB 4744 at [15] per Acton, SDP, Sams DP and Hampton C citing MM Cables (a Division of Metal Manufacturers Ltd v Zammit AIRC (FB) S8106 17 July 2000.

13 Stewart v University of Melbourne (U No 30073 of 1999 Print S2535) Per Ross VP citing Byrne v Australian Airlines (1995) 185 CLR  410 at 465-8 per McHugh and Gummow JJ.

 14   [2012] FWAFB 4810.

 15   Ibid at [26].

 16   Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at 537 53 See Restaurant and Catering Association of Victoria [2014] FWCFB 1996 at [58] and the authorities cited there.

 17   [2013] FWCFB 6191.

 18   (2013) 231 IR 159.

 19   BHP Iron Ore Pty Ltd v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1998) 82 IR 162; Shell Refining (Aust) Pty Ltd v Construction, Forestry, Mining and Energy Union [2008] AIRC 510; Shell Refining (Aust) Pty Ltd v Construction, Forestry, Mining and Energy Union (2009) AILR 101-010; Holcim Australia v Transport Workers’ Union (NSW) (2010) NSWIRComm 1068; Construction, Forestry, Mining and Energy Union v HWE Mining Pty Ltd (2011) 214 IR 194 at [26] – [29]; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2012) 224 IR 57.

 20   (1938) 60 CLR 601.

 21   Ibid at 616.

 22   Ibid at 623 – 624.

 23   140 ALR 625.

 24   Ibid at 629.

 25   Ibid at 637.

 26   Briggs v AWH Op. cit. at 163 – 164.

 27   Transcript PN197 – 205.

 28   Witness Statement of Craig William Bartkowski – Annexure CB-01.

 29   Exhibit R3.

 30   Transcript PN383 – 390.

 31   Transcript PN1182 – 1183.

 32   Transcript PN1184 – 1185.

 33   Transcript PN164.

 34   Transcript PN245 – 247.

 35   Transcript PN393 – 396.

 36   Transcript PN397 – 407.

 37   Witness Statement of Adele Arrow paragraph 13.

 38   Witness Statement of Adele Arrow – Annexure AA-01.

 39   Transcript PN638.

 40   Transcript PN705 – 707.

 41   Transcript PN802 – 808.

 42   Exhibit R5 Annexure ML-01.

 43   Exhibit R5 Annexure ML-02.

 44   Ibid Annexure ML-03.

 45   Ibid Annexure ML-04.

 46   Ibid Annexure ML-6.

 47   Ibid Annexure ML-7.

 48   Ibid Annexure ML-08.

 49   Ibid Annexure ML-09.

 50   Transcript PN179.

 51   Transcript PN430.

 52   Transcript PN464 – 466.

 53   Exhibit R5 Annexure ML-06.

 54   Transcript PN471 – 474.

 55   Transcript PN484.

 56   Transcript PN497.

 57   Transcript PN498 – 501.

 58   Transcript PN503 – 504.

 59   Transcript PN507.

 60   Transcript PN1054 – 1062.

 61   Transcript PN1217.

 62   Transcript PN1231.

 63   Transcript PN1401.

 64   (2000) 98 IR 137.

 65   PR732610.