Allan Carter v Bis Industries Limited

[2013] FWC 8329

[2013] FWC 8329

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Allan Carter
v
Bis Industries Limited
(U2013/8231)

COMMISSIONER DEEGAN CANBERRA, 24 OCTOBER 2013

Application for unfair dismissal remedy - on-site work incident - positive drug test result - dismissal not unfair - application dismissed.

[1] This is an application made under s.394 of the Fair Work Act 2009 (the Act) by Allan Carter (the applicant) seeking a remedy in relation to the termination of his employment by Bis Industries Limited (the respondent).

[2] The applicant’s employment was terminated on 22 March 2013. The application was lodged on 5 April 2013 and was listed for hearing following an unsuccessful conciliation conference on 22 May 2013. In accordance with Directions issued on 29 May 2013 and amended Directions issued on 5 June 2013 both parties filed an outline of submissions and witness statements.

Background

[3] The applicant had been employed since the late 1980s. At the time of his dismissal, he was working as a Kress Operator. In this position the applicant was required to move large pots of molten slag from the furnace to a pit for disposal using a Kress, a large machine resembling a front-end loader.

[4] On 14 March 2013 at approximately 4pm the applicant was driving the Kress with a load of molten slag preparing to tip the slag into the pit when the pot detached from the machine, spilling the molten slag partly into the pit and partly onto the ground next to the Kress. The slag was at a temperature of about 1000 degrees centigrade and the tyres on the front of the Kress caught fire. The applicant evacuated the cab of the Kress and attempted to extinguish the flames with a fire extinguisher, which was kept in the cabin of the Kress. He also alerted the relevant employees who quickly attended the scene and extinguished the remaining fire with sand.

[5] The applicant was subjected to a mandatory drug and alcohol test following the incident. The test conducted by way of breathalyser and oral swab at the worksite returned a negative reading for alcohol, though the reading for cannabis indicated that test results were not negative. As a result, an oral swab sample was sent to a laboratory for further testing. On 21 March the results of the laboratory test were received by the respondent. The test was positive for cannabis at a level of 17 nanograms per millilitre (ng/ml).

[6] On 22 March the applicant attended a meeting with his union representative and a number of employer representatives. He was informed that he had breached the respondent’s drug policy and, unless there were mitigating circumstances, his employment would be terminated.

[7] The applicant’s representative stated that it was possible that the applicant’s positive reading for cannabis had been exacerbated as a result of the adrenalin released in his body as a consequence of the serious incident with the Kress. The applicant had stated that he had smoked only one joint of cannabis around 6 or 7pm the evening prior to the incident.

[8] After checking the applicant’s claim with the head of the laboratory responsible for testing the applicant’s sample, the respondent proceeded to terminate the applicant’s employment with immediate effect.

Evidence for the Applicant

[9] Evidence in support of the applicant’s claim was given by the applicant and

• Peter Woods, Kress Operator



• Craig Jenkins, Kress Operator and



• David Westergreen, Kress Operator and CFMEU delegate.

[10] According to his statement 1, Peter Woods had been employed as a relief Kress Operator for a period of two and a half years and became a permanent operator on the termination of the applicant’s employment. His evidence went to the training he received in operation of the Kress and his role in dealing with the incident involving the applicant’s Kress in March 2013.

[11] It was Mr Wood’s evidence that the applicant appeared shocked after the Kress incident but did not appear, to him, to have been affected by drugs. He did not believe the applicant could have operated the Kress had he been so affected, as the task required ‘a high level of concentration from us, coordination and clear thinking’ 2.

[12] Mr Wood claimed that the only drug and alcohol policy training he had received was some years before. He stated that Kress operators were required to have zero blood alcohol content. He did not recall much detail about the drug policy but believed that if an employee received a positive result for alcohol it would result in a warning, counselling and rehabilitation. He stated that he was left with the clear impression that it would be the same for drugs rather than instant dismissal.

[13] At the hearing, Mr Wood stated that he did not recall receiving drug and alcohol training during the re-orientation after the TEMCO shutdown.

[14] Under cross-examination, the witness agreed that he had received drug and alcohol training at Bis Industries but that it was ‘a long time ago’ 3. He also agreed that he was aware of the Bis drug and alcohol policy. He denied ever seeing a copy of the drugs policy on the notice board at Bell Bay. He claimed that the last training on drugs and alcohol policy had been provided about three years previously.

[15] It was Mr Woods’ evidence that the work he performed as a Kress operator was extremely dangerous.

[16] Craig Jenkins had been working at the Bell Bay site for about 24 years and is currently employed as a Kress Operator. It was his evidence 4 that the work of a Kress Operator is ‘critical to production at site and requires concentration and skill throughout the 12 hour operation as mistakes can lead to emergencies and disasters if the operator does not perform the task accurately throughout the shift5. Mr Jenkins described the manner in which the Kress was operated and the training he had received to operate the Kress. He noted that the Kress operators had received training in emergency procedures and evacuation around May 2012.

[17] It was Mr Jenkins’ evidence that he was surprised that the applicant had returned a positive drug test and also that he was sacked for that positive result as he had believed it was a ‘three strike’ system. The last drug and alcohol policy training that the witness recalled receiving had occurred about three years earlier.

[18] At the hearing Mr Jenkins recalled having seen the document ‘Alcohol and Other Drugs Testing and Education’ when he returned from Western Australia to the Bell Bay site after the close down in 2012. He stated that Mr Hamilton, the Site Manager, had gone through the document with him at the re-orientation that occurred in early July 2012.

[19] Under cross-examination, Mr Jenkins confirmed that he had had several drug education inductions while working but reiterated that he had been surprised that the applicant had been dismissed on his first positive test. He agreed that the work done at the Bell Bay site with molten slag is extremely hazardous. 6

[20] Dave Westergreen is a Kress Operator and the CFMEU delegate at the worksite. He had been employed on site for 20 years and had been a Kress Operator for the last 15 years. His evidence 7 went to the operation of the Kress and described an incident he had experienced 5 years earlier when a pot had dropped from the Kress. He also described the incident involving the applicant, and the subsequent investigation, in which he was involved. He noted that while the company did not believe a faulty air interlock valve was the cause of the applicant’s incident, he believed that it may have been.

[21] According to the witness, the Bis drug and alcohol policy was introduced in 2006 and he did not believe that anybody had been sacked for a first positive test since its introduction. He was aware that the applicant had failed a urine test for drugs during a medical performed prior to the introduction of the policy.

[22] It was the evidence of Mr Westergreen that the only drug and alcohol policy training he had received occurred a few years prior and dealt with the quantities of drugs that would lead to positive results and the effect of different drugs on performance. Further the witness was shocked when the applicant was dismissed for a first positive test as he did not believe the policy would be applied in that manner.

[23] Mr Westergreen had worked with the applicant for a number of years and had no reason to believe that he would attend work in any way impaired by drugs. When the laboratory test of the applicant’s specimen returned a positive result, the witness formed the view that the company intended to terminate the applicant’s employment and nothing would alter that intention. His suggestion that the applicant’s reading may have been increased by the surge of adrenalin experienced after the Kress incident was arbitrarily rejected.

[24] While the witness recalled the re-orientation training in June 2012 delivered by Mr Hamilton after the TEMCO closedown he did not recall that training addressing the drug and alcohol policy.

[25] Under cross-examination, Mr Westergreen conceded that he was aware of the employer’s drug and alcohol policies and, as the union delegate, had been required to obtain them for, and explain them to, employees. He agreed that the policy did state that a positive drug result would result in termination but stated that this did not accord with the ‘recollection that we’ve all had’ 8. He accepted that the relevant words in the Bis drug and alcohol policy had been in much the same terms since 2008 but maintained that everybody understood it to be a three strike system.

[26] The witness agreed that the work he performed was, of its very nature, hazardous.

[27] The applicant filed two witness statements 9. He outlined his employment history and described the work of a Kress Operator. He stated that he had been trained in Kress operations by Mr Westergreen and noted that the training was intensive as it is ‘complex and disciplined work and carting that quantity of molten slag over different surfaces, up ramps and lining it up for tipping takes concentration and skill’10. He noted that the Kress operators had had safety training ‘a few years back’ and had undergone refresher training after the 3-month TEMCO closedown which was ‘mainly paperwork on procedures and ticking off on forms’11.

[28] The applicant stated that he had tested positive for marijuana in a urine test conducted as part of a regular medical in about 2006. He acknowledged receiving alcohol and drug training about 3 years ago but did not recall any part of that training involving reading the policy or the penalties applicable to a positive drug test. He assumed it would be similar to a positive alcohol reading which was a ‘stepped procedure’ with counselling after a positive reading and dismissal only after a third offence. 12 He acknowledged that Kress operators were required to have a zero alcohol reading. The applicant claimed that the consultant who had provided the training had advised him that he needed to allow 10 to 12 hours for traces of marijuana to leave his bloodstream.

[29] It was the applicant’s evidence that after the medical in 2006 he was stood down on pay and required ‘to have a retest before (he) started back at work the next day’. 13 According to the applicant, he believed that at the time the drug and alcohol policy was introduced there was a copy in the crib room and he thought he looked at it. He claimed to have been left with the impression that it was a ‘three strike position’.

[30] The applicant recalled having safety training during the previous 12 months which included fire safety training. He did not recall any drug and alcohol training since that provided three years earlier. He noted that training was provided at the time of the TEMCO shutdown but stated that it mostly consisted of paperwork. He claimed not to recall any mention of drug and alcohol policy in the paperwork but stated that there may have been some.

[31] The applicant’s evidence was that he rarely drank alcohol and never smoked marijuana before work or driving. He had shared a marijuana joint with a friend about 6.30 to 6.45pm the evening before the Kress incident. The day of the incident he was rostered on day shift. The incident occurred about 4pm. The applicant described the Kress incident in detail, noting that the wheels exploded on fire upon contact with the molten slag and describing his use of the fire extinguisher from the cab.

[32] At paragraph 24 of his statement the applicant described the actions he took after the pot slipped, spilling the molten slag:

I hit the automatic fire extinguisher inside the cab. It is not designed so that it

would put out the fire on the wheel but it is designed to put out the fire around

the cab. We had been provided with a protective hood but that takes about 20 to

30 seconds to put on and there wasn’t that type of time to spare, so some of the

fire extinguisher covered me and got in my eyes but I was already getting out of

the cab and I grabbed the fire extinguisher from where it is located half way up

the steps to the cabin. I’ve always thought it was a stupid place for the fire

extinguisher to be located as if you maintain three points of contact on the stairs

as is required, it is very difficult to get the extinguisher off. In fact, when I did

so on this occasion it caused me to hurt my shoulder, but I checked the ground

below the stairs was clear, got on to tit (sic) and made a quick observation. I saw that the mud flap was burning and the main hydraulic lines were burning. I flew around to the other side and used the fire extinguisher to put out the mud flap

and, because I was very concerned that if the hydraulic lines blew it would be

disastrous, I ducked under that part of the machine and put out that fire on the

hydraulic line with the extinguisher. Although that might have seemed a

dangerous manoeuvre, at the time I thought that the failure to do it could be of

worse consequence to me, Pete and the Kress.

[33] The applicant’s evidence was that the pot had slipped due to a malfunction of the locking system, a problem that had occurred previously.

[34] After the incident the applicant was subjected to a mandatory blood and alcohol test. To his surprise his first test was positive for marijuana. He was required to wait an hour for a second test. This test was invalid and the applicant was then subjected to a third test which was also positive for marijuana. He advised the tester that he had smoked marijuana the previous afternoon. The applicant was stood down on pay while the samples were sent to a laboratory for proper testing. The applicant expected that the laboratory tests would be negative but about a week later he was advised that the tests had shown a reading of 17. The manager who advised him of the result also advised him that anything above 10 was a positive. The applicant was requested to attend a meeting with his union delegate the next day. Despite the arguments of his union official the respondent terminated his employment.

[35] According to the applicant he had been subjected to random drug tests at the TEMCO site about 12 times a year since 2006. He had never returned a positive reading. He denied being in any way impaired by marijuana on the day of the Kress incident.

[36] At the hearing the applicant stated that he did not recall doing any of the re-orientation with Grantly Hamilton after the three month TEMCO shutdown.

[37] Under cross-examination, he agreed that he had been re-inducted and had undergone training when the site recommenced in June 2012. He denied that the document headed "Drug Testing" and "Testing Process", was a part of a presentation given to him on 25 June 2012. When it was put to him that he had completed a questionnaire including by circling the words “Total Prohibition” when asked to identify the amount of drugs or alcohol permitted in his system, he agreed that he had done so. When it was put to him that the training on 25 June included drug and alcohol training, he responded ‘I couldn't tell you; like, honestly those inductions were just blah, blah, blah and away we went’. 14

[38] The applicant denied that the Kress incident was a result of the operator error due to the cannabis in his system at the time. He also denied that he knew that a positive drug test would result in the possible termination of his employment. He agreed that he knew the matter was serious because he had had the positive drug result at his medical in 2006. When it was put to him that he was unable to return to work for three weeks after the positive result in 2006 the applicant noted that it had taken two weeks for the result to be returned from the laboratory and after a further week he was able to return to work. The applicant also conceded that he was aware that a labour-hire employee at Bell Bay had been dismissed after a drug test for cannabis.

[39] It was put to the applicant, and he conceded, that less than twelve hours after his marijuana consumption, he had driven to work and operated heavy machinery. He also agreed that his final test result gave a reading of 17 ng/ml. He maintained that he did not know that he could be terminated for a positive drug test until he was informed by Grantly Hamilton that it was the case after 14 March 2013. He denied that his lack of knowledge might have been attributable to his failure to pay attention in the training sessions and reiterated that he could not recall any alcohol and drug training in the re-orientation induction training in June 2012.

[40] When questioned about the incident with the Kress, the applicant did not agree that the Kress tyres being on fire was dangerous as the tyres are filled with Nitrogen. He conceded, however, that the Nitrogen was under high pressure. It was put to him that his attempt to extinguish the fire with the cab fire extinguisher was an act contrary to the training he had been given. The applicant stated that he ‘felt safe in doing it’ 15 and claimed that he had never had training in a situation like that. When it was put to him that such training was a national competency standard for a Kress Operator and that he had completed that training in November he recalled ‘going through something like it’.16 When confronted with the terms of the training concerning evacuating the Kress, the applicant stated that ‘the reality was a different thing altogether’17 and disagreed that he had put himself in unnecessary danger.

[41] Finally, the applicant agreed that a performance review he received just prior to his termination had indicated that he should improve his performance regarding safety matters.

[42] When re-examined, the applicant detailed his actions when evacuating the Kress and stated that he had attempted to extinguish the fire on the tyres and mudflaps. He then reiterated his position that he had no memory of any drug and alcohol training during the 2012 re-orientation.

The Respondent’s Evidence

[43] Evidence was given for the respondent by three Bis management employees:

• Grantly Hamilton, Bell Bay Site Manager



• Tim Shegog, Northern Area Manager, Tasmania and



• Greg Moore, General Manager, Tasmania

[44] Grantly Hamilton has been Bell Bay Site Manager for the respondent since 2010. In his statement 18 he noted that the respondent has had a drug and alcohol policy at the Bell Bay site since 2008 and the subject had been included in enterprise agreements since 2002. It was his evidence that termination had always been the company response to any employee testing positive for drugs at work. A revised policy was introduced in June 2012 which stated that a positive drug test would constitute serious misconduct and lead to termination except in exceptional circumstances.

[45] It was the evidence of Mr Hamilton that following a shutdown of the Bell Bay site from March to June 2012, on 25 June 2012 he carried out a re-induction process for three of the Kress operators, including the applicant. The presentation included the requirements of the respondent relating to drugs and alcohol. The employees were provided with the Bis Industries Employee Performance and Behaviour Code and the Bell Bay Induction Manual, the latter included a section on drugs and alcohol. At the completion of the induction the employees were required to fill out a questionnaire acknowledging their understanding of the matters covered in the induction. Each of the employees that were re-inducted on 25 June, including the applicant, acknowledged in their questionnaires that they understood that no level of drugs was permissible in an employee’s body when attending for work.

[46] Mr Hamilton’s evidence also dealt with the applicant’s earlier positive drug test when undergoing a medical and two earlier incidents for which the applicant had been counselled (backing into an excavator and speaking on the phone while driving the Kress).

[47] According to Mr Hamilton he was notified of the results of the laboratory testing of the applicant’s sample on 21 March 2013. He advised his managers that the applicant had tested positive for THC (tetrahydrocannabinol) and was instructed to arrange for a meeting with him. He called the applicant, who had been suspended on full pay awaiting the outcome of the tests, and advised him of the test result and the fact that the level was 17 ng/ml. He also advised the applicant that it was likely that his employment would be terminated.

[48] At the meeting on 22 March the applicant was accompanied by Mr Westergreen, the CFMEU delegate, and Mr Hinds, the CFMEU Branch President, attended by phone. After the meeting a decision was taken to terminate the applicant’s employment and a letter giving effect to the decision was sent to the applicant on 25 March 2013.

[49] Under cross-examination, the witness stated that he had been present when the Integrity consultant had carried out the drug and alcohol training for the employees in 2011. He agreed that the Bis policy required that the disciplinary process in the Employee Performance and Behaviour Code be followed in the event of a positive alcohol or drug test. He further agreed that for alcohol readings lower than .05 there was a disciplinary process involving warnings and counselling. He conceded that positive tests for drugs that were carried out prior to the commencement of work were dealt with by a similar process, while in other circumstances a positive test would be viewed as serious misconduct.

[50] Mr Hamilton agreed that the respondent strictly enforces its drug and alcohol policy. He claimed that the drug and alcohol policy had been displayed on the notice board in the crib room at Bell Bay from about 6 months prior to the shutdown in 2012. He also stated that he went into considerable detail in relation to many of the slides concerning the drug and alcohol policy that formed part of his re-induction training of the Kress operators, and spent about half an hour on that topic.

[51] The witness recalled that Mr Shegog had informed the applicant on 14 March that the drug test performed on site was not considered positive until the result was received from the laboratory and that he would be suspended on full pay until the result was known. Mr Hamilton stated that he had undertaken no investigations into why the laboratory result (17ng/ml) was lower than the level that the on-site test should have been able to detect (25ng/ml).

[52] When re-examined, Mr Hamilton reiterated that the stepped approach to positive alcohol tests applied only to readings less than .05.

[53] It was the evidence 19 of Timothy Shegog that he had been employed by the respondent for 28 years. He had been the Site Manager at the Bell Bay site as the North East Area Manager Tasmania in July 2010, and from February 2011 had been the Northern Area Manager Tasmania. In his statement the witness noted the heavy focus on safety at Bis given the inherently dangerous nature of the work performed. He described the policy adopted at Bis which prohibits drug and alcohol use on site and noted that random, ‘for cause’ and post-incident drug and alcohol testing is carried out at the TEMCO site. It was also his evidence that the respondent’s policy is that a positive drug test will result in termination except in exceptional circumstances.

[54] The witness had attended the Bell Bay site shortly after the Kress incident on 14 March. He had seen the applicant in the crib room who had advised him that he was still a bit shaky. Later that day he was informed that the applicant had failed his drug test and that a second test had returned a positive result for THC. He then became aware that the applicant had smoked cannabis the previous evening. Mr Shegog had advised the applicant that he would be suspended on full pay until the laboratory had tested the sample and that he should not worry as the further testing was required in case the initial test had given a false positive.

[55] According to the witness, on 21 March he and Mr Moore were informed by Mr Hamilton that the laboratory testing indicated that the applicant had a THC reading of 17 ng/ml. Mr Shegog was present at the meeting held with the applicant on 22 March and recalled a discussion during which Mr Moore stated that he had taken advice about whether the applicant’s reading may have been increased as a result of agitation caused to him by the Kress incident. It was his evidence that Mr Moore had concluded that it was unlikely that this had occurred and that it did not constitute an exceptional circumstance such that termination of employment would not occur. Mr Shegog also noted that the termination letter mistakenly referred to the applicant undergoing ‘for cause’ rather than ‘post-incident’ testing.

[56] According to the evidence of Mr Shegog, the report of the investigation into the Kress incident was inconclusive but clearly excluded mechanical failure. He stated that, even if the airlines were disconnected, once the pot lock is closed it cannot reopen of its own volition.

[57] Under cross-examination, Mr Shegog agreed that the applicant had never undergone ‘for-cause’ testing for drugs or alcohol. He also agreed that he had been aware of a previous incident when the Kress pot lock had disengaged.

[58] Mr Shegog stated that he had been the Bell Bay Site Manager when the first drug policy was introduced in 2008. He conceded that clause 36- Alcohol and Other Drugs - of the relevant enterprise agreement was expressed in terms of ‘being adversely affected by alcohol or other deleterious drugs or adversely affected by alcohol or drugs’.

[59] The witness conceded that on the date of the Kress incident he did not warn the applicant that if his laboratory test was positive for THC he would likely face dismissal, and that he did not utilise the investigation of the Kress incident to investigate whether or not the applicant was likely to have been impaired when making that pot run. According to his evidence, whether an operator was able to complete a pot run if inebriated by drugs or alcohol would depend on the level of the impairment.

[60] When asked why the applicant’s letter of termination was not sent out until 25 March, the witness replied that it was not usual to take a letter to such a meeting and the letter would have to be prepared off-site.

[61] Mr Shegog was unable to say what the reading was for the on-site test undergone by the applicant, stating that such tests give only a positive or negative result.

[62] When re-examined, the witness stated that two Kress operators assisted in the investigation into the incident involving the applicant, while the entire investigation involved about eight people.

[63] The evidence of Greg Moore was set out in his statement 20. Mr Moore has worked for Bis since 1989 and has been General Manager - Tasmania since May 2006. It was his evidence that the work of the Kress operators at the Bell Bay site is inherently dangerous and that there are a number of Bis procedures regulating Kress operations at the site. He also noted that regular training for emergency situations is provided to Kress operators because of the inherent danger in the role. A Kress evacuation training course was provided to the Kress operators, including the applicant, in November 2011 and an emergency exercise involving the Kress operators was conducted at the site in October 2012.

[64] Mr Moore’s evidence covered the Bis Drug and Alcohol Policy and the regime of testing that had been introduced in 2006. It was his evidence that the policy had, since introduction, been that a positive drug test would result in termination of employment. He noted that the policy had been updated in 2012 and that presentations about it had been conducted across Australia in mid-2012. It was his evidence that to his knowledge two Bis employees in Tasmania had had their employment terminated, while a number of labour hire employees had been excluded from work sites, for failing drug or alcohol tests.

[65] It was the witness’ evidence that he had visited the Bell Bay site shortly after the Kress incident. He had been surprised to see a fire extinguisher on the ground in front of the Kress as operators are trained to move away from the machine in the event of such an incident. He was even more concerned that the fire extinguisher appeared to have been directed at the mudflaps of the Kress as it indicated that the applicant had walked towards the Kress after evacuation and not away from it as he had been trained.

[66] Mr Moore was advised by Mr Shegog that the applicant had not been hurt, but was shaken. He was later informed that the applicant had returned a positive test for THC and that a sample was to be sent to the lab. It was his decision to suspend the applicant with pay until the laboratory test result was returned.

[67] It was the evidence of Mr Moore that the investigation into the Kress incident concluded that no mechanical failure resulted in the Kress pot dropping but was otherwise inconclusive as to the cause.

[68] Prior to meeting with the applicant after the laboratory result confirmed the applicant’s positive reading, Mr Moore discussed the matter with senior management of the respondent including senior HR personnel. The safety critical nature of the work was discussed, as was the fact that there could be no tolerance of employees affected by drugs or alcohol. The applicant’s long service was also considered. The decision was taken that Mr Moore had the authority to terminate the applicant’s employment for returning the positive drug test, subject to there being no exceptional circumstances.

[69] The meeting held with the applicant and his representatives on 22 March was adjourned for a while to enable Mr Moore to take advice concerning the applicant’s claim that his reading may have been increased due to an adrenalin surge after the Kress incident. He contacted the head of the business that conducted the laboratory testing and was advised that as the test had been carried out on saliva rather than blood such a scenario was unlikely.

[70] Mr Moore than informed the participants at the meeting that, there being no exceptional circumstances, the applicant’s employment would be terminated for serious misconduct.

[71] When cross-examined, Mr Moore stated that the applicant had moved further into the danger zone after evacuating the Kress, rather than away from it.

[72] The witness agreed that there is no final warning given in relation to the outcome of a drug test. It is either a positive or a negative result and the policy is very clear. If an employee exceeds the Australian Standard cut-off point 21, it is a positive drug test, below that, it is a negative test. He noted that employees have registered less than 10 ng/ml (the specified target level) and in such circumstances the same disciplinary approach was applied as to an alcohol reading of less than .05, that is, a warning. He noted that any time that a drug test in the workplace shows a positive it is sent to the laboratory before it is said to be positive. Once a reading is returned from the laboratory, a result of less than 10ng/ml is considered to be a negative result and the employee involved is issued with a warning.

[73] When questioned about the qualifications of the person at Integrity Testing that had given him the information about the likelihood of the applicant’s reading being increased by an adrenalin burst, Mr Moore stated that the firm was strictly assessed before being chosen to perform the Bis’ drug testing.

[74] When asked about his discussions with company management about there being no tolerance of employees who were affected by drugs or alcohol performing safety critical work, and how he knew the applicant was affected by drugs rather than simply having a positive identification of THC through the laboratory test, Mr Moore stated that the lab test had confirmed a positive drug test.

[75] When re-examined, Mr Moore reiterated his evidence that the applicant had failed to comply with the evacuation procedure following the Kress pot dislodging. He had approached the slag and placed himself at significant risk by so doing. Mr Moore claimed that the policy is very clear and, once a decision is made to evacuate the machine, the operator is to climb down and move away from it to a safe area.

Submissions for the Applicant

[76] It was put for the applicant that there was no valid reason for his dismissal given that the employer did not conduct a sufficient investigation into the applicant’s positive drug test result when it was claimed by the applicant that the result was affected by his physical reaction to the incident involving the Kress. It was also put for the applicant that he was at no time impaired by drug use while at the workplace and that the Kress incident was not connected to any operator error but to a mechanical malfunction.

[77] It was submitted for the applicant that only he witnessed the Kress incident and, as there was evidence that a similar incident had occurred in the past and that incident was found not to be a result of operator error, the applicant’s evidence in relation to that incident should be accepted.

[78] It was also put that the witnesses for the applicant, with the exception of Mr Jenkins, were consistent in their evidence that they could not recall any training being provided by Mr Hamilton in relation to the alcohol and drug policy at the re-induction in June 2012. This submission was put in support of the applicant’s claim that it was a general belief among the employees that termination would not occur as a result of one positive drug test.

[79] So far as the reliance on the positive drug test was concerned it was submitted that a 2009 paper provided by the applicant’s representative supported the applicant’s contention that THC was released from storage in fat into the blood stream in circumstances where a hormone such as adrenalin was released. It was argued that this provided an explanation for the applicant’s positive drug test. Further it was argued that the level of THC found in the system was not such as to cause impairment.

Submissions for the Respondent

[80] Essentially, the respondent’s submission was that the dismissal was not unfair as the applicant had breached an important workplace policy directed at maintaining a safe workplace. The applicant was aware of the policy and, given the hazardous nature of the work he performed, it was appropriate that such a breach result in the termination of his employment.

[81] In response to the arguments put for the applicant, the respondent argued that the question of ‘impairment’ of the applicant was not a live issue in the matter given the construction of the drug and alcohol policy. Further, it was put that the scientific papers produced by the applicant’s representative could not be accepted as evidence without the author, or a duly qualified expert being produced as a witness.

[82] It was noted that the great majority of the witnesses agreed that the work performed by the Kress operators was subject to high degrees of hazard. In such circumstances there was a need to guard against safety breaches in order to protect the applicant and his fellow workers.

[83] It was submitted that there was evidence from the applicant about his lack of attention in seminars designed to educate him about the drug and alcohol policy in the workplace. His evidence in this regard was contradictory, as he initially denied going to the training, but under further questioning he admitted that he had attended but denied that the drug and alcohol policy was a part of that presentation. Finally, he claimed not to remember any mention of the policy.

Consideration

[84] I am satisfied that no jurisdictional issues arise in this matter and that, at the time of the termination of his employment, the applicant was a person protected from unfair dismissal. The employer is a not a small business and there is no claim that the dismissal was a case of genuine redundancy.

[85] Section 387 of the Act sets out those matters that must be taken into account in determining whether a dismissal was harsh, unjust or unreasonable. I will now deal with each of those matters.

Valid reason

[86] The applicant’s employment was terminated as a result of his returning a positive test result for the drug cannabis while at work. The respondent’s drug and alcohol policy introduced in 2008 provided that an employee who returned a positive result for drugs whilst at work would have their employment terminated unless there were exceptional circumstances.

[87] I am satisfied that the applicant was made aware of the drug and alcohol policy. I accept the evidence of Mr Hamilton that the requirements of the policy formed part of the training provided during the re-induction he conducted in June 2012 and that the applicant was present at that training. If the applicant does not recall that training I consider it was because of his attitude to training generally, which he seemed to consider an annoyance (see paragraph [37]).

[88] I accept that it is surprising that the applicant returned a non-negative test from a saliva swab conducted at the work site in the late afternoon of 14 March given his claim to have smoked only one joint of cannabis nearly 24 hours previously. Nevertheless, the validity of the work site test was confirmed by the laboratory and the applicant’s reading exceeded the standard applied by the respondent. I am not convinced that the scientific papers produced by the applicant’s representative in an attempt to explain the reading have any bearing on this case. The applicant was subjected to a saliva swab test, not a blood test, so data relating to levels of THC in blood being increased by an adrenalin surge are of no persuasive value, even had I accepted that the scientific papers should be admitted as evidence given the manner in which they were produced.

[89] I have no reason to doubt the accuracy of the testing conducted at the worksite or, more importantly, by the laboratory. Clearly the applicant breached the respondent’s drug and alcohol policy. He was aware of the seriousness of such a breach having returned a positive drug test at a medical prior to the introduction of the policy. On that occasion, he was not allowed to return to work for some weeks to allow the drug to clear from his system. He also claimed to have been randomly tested for alcohol and drugs on numerous occasions at the worksite. The records produced by the respondent indicate that he was subjected to at least 8 random tests in the period 2011 to 2013. In the circumstances I am unable to accept that the applicant was unaware of the alcohol and drugs policy or that a positive drug test would result in his dismissal.

[90] I am persuaded by the evidence produced by the respondent that, since its inception, the alcohol and drugs policy has clearly stated that a positive drug test would result in termination (except in exceptional circumstances). There is no convincing evidence that anything promulgated by the respondent could have led any of the employees to believe that there was a ‘three strikes’ policy for positive drug tests.

Notified of the reason

[91] The applicant was notified prior to the meeting on 22 March that the laboratory test had confirmed a positive result for cannabis and the level of the reading. He was aware that such a result could result in the termination of his employment unless there were exceptional circumstances. It was made clear to him both at the meeting and in the letter confirming the termination of his employment that the reason for the termination was the positive drug test.

Opportunity to respond

[92] The applicant was given every opportunity to respond to the allegation that he had failed the drug test conducted on 14 March. He was aware that the test conducted at the worksite did not return a negative result and he had a full week to consider his position before the laboratory test was completed and the final result known. Any matters the applicant wished to raise were able to be raised and were raised at the meeting on 22 March, when the applicant was supported by his union delegate and another very senior union official.

Support person

[93] The applicant had the support of his union representatives at the meeting which led to the termination. There was no unreasonable denial of the assistance of a support person. 22

Unsatisfactory performance warnings

[94] The applicant’s termination was not for reasons of unsatisfactory performance.

Size of the employer’s enterprise

[95] The employer is a very large organisation and it is unlikely that its size impacted in any way on the procedures adopted in effecting the termination. The national policy was applied and the procedures were fairly applied. I do not believe that the fact that the allegation of the positive blood test was not put to the applicant in writing rendered those procedures unfair. Nor do I believe that it was necessary that the termination letter was provided to the applicant immediately after the 22 March meeting. The reason for the termination was clear and simple. He failed the drug test administered on 14 March, this was a breach of the respondent’s drug and alcohol policy and, as there were no exceptional circumstances, the policy mandated that the applicant’s employment would be terminated for serious misconduct.

Absence of dedicated human resource management specialist or expertise

[96] There was evidence that Mr Moore, the General Manager who made the final decision to terminate the applicant’s employment, consulted with other senior managers within the respondent and with senior human resources personnel before reaching his decision. Clearly the procedures adopted in effecting the termination were not impacted by any absence of human resource management specialist or expertise.

Other matters

[97] In determining whether the dismissal was unfair I have paid particular regard to the applicant’s lengthy period of service in the same employment and his relatively clean disciplinary record over that period. I have also had regard to the applicant’s age and difficulty in finding other employment. On the other hand, I must also take into account the fact that the work performed by the applicant was of a particularly hazardous nature, and the applicant’s actions immediately following the Kress pot becoming dislodged. I accept the evidence of the respondent that the applicant had recently been trained in procedures to be taken in the event of such an emergency occurring and had, despite having completed the training and answering a questionnaire that indicated that he understood that training, not followed the procedures mandated by the training but acted in a manner which put himself in danger. I do not accept the applicant’s response that training is one thing but ‘actual reality’ 23 is different. The training was provided so that he would respond in accordance with that training if and when the emergency became reality.

[98] Many of the applicant’s responses 24 during the hearing of the matter indicated that he did not properly appreciate his responsibilities so far as safety in the workplace is concerned. In such circumstances, any consideration that might be given to employment longevity is outweighed by the fact that after such a long period of service he appeared not to appreciate the fundamentals of safety, despite his particularly hazardous work.

Conclusion

[99] In light of all those matters set out above, particularly the fact that there was a valid reason for the termination and the process which brought the termination about was fair, I must conclude that the termination of the applicant’s employment was not harsh, unjust or unreasonable. As the dismissal was not unfair, the application is dismissed.

[100] An order [PR543681] giving effect to this decision is published separately.

Appearances:

Ms J. Gray with Mr C. Hinds, for the Applicant.

Mr T. Donaghey, of Counsel, with Ms E. Goodwin, for the Respondent.

Hearing details:

2013.

Launceston:

August 15, 16.

 1   Exhibit C1

 2   Ibid, at Paragraph 6.

 3   Transcript PN39.

 4   Exhibit C2.

 5   Exhibit C3 at Paragraph 5.

 6   Transcript PN169

 7   Exhibit C5.

 8   Transcript PN257.

 9   Exhibits C7 and C8.

 10   Exhibit C7 at Paragraph 6.

 11   Ibid, at Paragraph 7.

 12   Above n 10, at Paragraph 9.

 13   Above n 10, at Paragraph 12.

 14   Transcript PN562.

 15   Transcript PN735.

 16   Transcript PN771.

 17   Transcript PN783.

 18   Exhibit BIS1.

 19   Exhibit BIS2.

 20   Exhibit BIS3

 21   Exhibit BIS1, ‘Exhibit GH-L’ - AS4760-2006, specified target level of Delta-9-THC.

 22 Section 387(d) Fair Work Act 2009.

 23   Transcript PN779.

 24   Transcript PN438; PN443; PN469; PN475; PN502; PN503; PN523; PN563; PN736; PN777-780.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543680>