Benjamin Unicomb v SESLS Industrial Pty Ltd
[2025] FWC 186
•23 JANUARY 2025
| [2025] FWC 186 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Benjamin Unicomb
v
SESLS Industrial Pty Ltd
(U2024/8974)
| DEPUTY PRESIDENT ROBERTS | SYDNEY, 23 JANUARY 2025 |
Application for an unfair dismissal remedy – interference with monitoring equipment– consumption of prescription drug – whether dismissal harsh, unjust or unreasonable – whether valid reason – compensation in lieu of reinstatement
Mr. Benjamin Unicomb (Applicant) has applied to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (Act) for a remedy for what he alleges was his unfair dismissal by his former employer SESLS Pty Ltd (Respondent, or Brunel).
When can the Commission order a remedy for unfair dismissal?
Section 390 of the Act provides that the Commission may order a person’s reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.
Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that the Applicant is protected from unfair dismissal for the purposes of s.382.
Section 385 relevantly provides that a person has been unfairly dismissed if the Commission is satisfied of four matters: the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code (SBFDC) and the dismissal was not a case of genuine redundancy.
The only point in issue in this matter is whether the Commission can be satisfied that the dismissal was harsh, unjust or unreasonable within the meaning of s.385.
Background
The Applicant commenced employment with the Respondent in May 2020. He was employed as a Multi-Skilled Operator at the Maules Creek open cut coal mine (Mine) in New South Wales. He worked on a ‘drive-in, drive-out’ basis. The Mine is owned and operated by Whitehaven Coal Mining Ltd (WHC). The Respondent supplies contingent labour, including plant operators such as the Applicant, to WHC at the Mine. The Applicant operated equipment owned by WHC and worked at their direction.
The Applicant suffers from various medical conditions, including bipolar disorder and depression. He was prescribed Temazepam and other medications which he took as directed by his treating physicians.
In June 2024 the Applicant was temporarily absent from work due to alleged work-related stress. He provided medical evidence to certify that he was unfit for work from 10 – 20 June 2024. He later provided medical clearances to support his return to work. He returned to work on 27 June 2024.
The medical information supplied by the Applicant to the Respondent in this period made reference to the Applicant’s use of Temazepam. There was a discussion between Mr. Scott, Brunel’s Health and Safety Manager, and representatives of WHC about this issue.
On 25 June 2024 there was a telephone conversation between the Applicant and Mr. Scott which included a discussion about the Applicant’s use of Temazepam. Later that day the Applicant received a digital copy of a medical management plan (MMP). The Applicant affixed his digital signature to the MMP and returned it to the Respondent. Included under the heading ‘Restriction’ were the following words:
Must not take Temazepam during assignment. It is against Whitehaven Coal’s Safety Rules to take any form of Benzodiazepine if performing a Safety Critical Role.
On 23 July 2024 the Applicant underwent a random drug test on-site which returned a non-negative result for Temazepam. The result was considered by the Mine’s superintendent and the Safety Officer for WHC. The Applicant was permitted to return to work on the same day after discussion and consideration of the result. The test sample was sent to an external third party for further testing and the positive result for Temazepam was confirmed with Brunel on 25 July 2024.
On the 25 July 2024, while driving a WHC vehicle the Applicant covered piece of safety equipment, namely an in-vehicle camera, or operator awareness system (OAS), which was pointed at his face. He then used some mouthwash to relieve the symptoms of burning mouth syndrome. The camera was covered for a period of some 25 seconds after which the Applicant removed the cover from the camera. After this incident, the Applicant was asked to attend the Mine supervisor’s office. He was shown the footage and asked to explain. He was asked to, and provided, a brief written statement about the incident.
On the same day the Applicant was asked to take a further drug test which again returned a non-negative result for Temazepam. Brunel’s representative then attended the site. The Applicant was stood down and driven back to the Mine’s camp. The next morning the Applicant received a message from Brunel requesting a meeting with Applicant in the car park at 11am. He met with the Respondent’s representative at that time and his employment was terminated for misconduct in the car park with immediate effect.
The letter of termination provided to the Applicant on that day included the following:
On 26 July 2024 you meet (sic) with representatives of Brunel. At this meeting you were advised that your conduct was unsatisfactory. Specifically
1. On 25 July while operating a truck on the client's site you covered the OAS camera.
2. You had the following non-negative Drug and alcohol screen results
a. On 23 July you were subject to a random screen that was positive for Temazepam.
b. On 25Jul you were subject to a post incident screen that returned a non-negative for Temazepam.
In the meeting you were asked if you had anything you wished to say or to respond to the situation and you stated.
·You had mouth ulcers, you decided to rinse your mouth out and spit to the window. You admitted you covered the camera to do this.
·You thought you that not taking the Temazepam was only doing work hours.
After reviewing the situation Brunel has determined that your actions are constitute serious misconduct and have decided to terminate your employment for the following reasons.
·Whilst operating a truck you deliberately covered a critical safety system.
·Additionally, less than a month ago you signed a Medical Management Plan that clearly stated you were not to take Temazepam during assignment and that it is against the client's Coal Safety rules to take any form of Benzodiazepine if performing a safety critical role.
Was the dismissal harsh, unjust or unreasonable?
Section 387 of the Act provides as follows:
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a)whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c)whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d)any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e)if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f)the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g)the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
387(a) - Valid reason for dismissal relating to capacity or conduct
The OAS incident
The facts surrounding the OAS incident were largely uncontested. The Applicant accepted that the purpose of the camera was to monitor drivers to ensure they were alert and admitted, at the time of the incident and at the hearing, to covering the camera. He explained that his crib break had been delayed on the day and he did not have an opportunity then to wash his mouth but conceded that he should not have covered the equipment. It was not in issue that the Applicant continued driving the vehicle, which was a large piece of mining equipment in the order of 300 tonnes, at about 35 kilometres per hour while the camera was covered and he washed his mouth.
The Applicant submitted that the vehicles continued to operate even if the cameras were not functioning properly or at all, and that in the circumstances, the Applicant’s conduct was not a valid reason for termination because such conduct would only warrant counselling or some form of disciplinary response short of termination of employment. The Respondent said the Applicant had wilfully disabled safety equipment and in doing so had placed himself and others at risk, particularly because he had distracted himself from driving by covering and uncovering the camera whilst continuing to drive a very large and potentially very dangerous vehicle.
It is well settled that for a reason to be valid in the relevant sense it should be ‘sound, defensible and well-founded’ and not ‘capricious, fanciful, spiteful or prejudiced.’[1] Even accepting the Applicant’s submission that the OAS was not safety critical in the sense that the vehicles would continue to operate even if the cameras were not functioning, the conduct of the Applicant was nonetheless deliberate and potentially very serious because the act of covering and uncovering the camera whilst driving, and the mouth washing exercise was, in itself, a distraction from driving a very large piece of machinery. Had this occurred in a context where the Applicant had been able to pull over safely and stop the vehicle while he washed his mouth, different considerations might apply. But in this case the conduct occurred while the vehicle was being operated in the ordinary way.
I note the uncontested evidence of Mr. Brownsey that the Applicant was trained in the safe use of mining technology systems which includes the prohibition on tampering with or blocking the camera. I also take into account the fact that there was no suggestion that the Applicant covered the camera to avoid the safety rationale for its existence, namely, to detect driver fatigue.
The issue of whether this conduct constituted a valid reason for dismissal is reasonably finely balanced in my view. Self-evidently safety measures are important in all workplaces. Conduct of this kind is not acceptable and the Applicant accepted that he had made a mistake by doing what he did. Some disciplinary measure was appropriate. Taking account of the circumstances as a whole, I am of the view that although the Applicant’s conduct was not at the most serious end of the spectrum, interference with the equipment amounted to misconduct and the Respondent had a valid reason for termination related to the employee’s conduct. I note here the submission of Brunel that this was the ‘primary’ reason for the dismissal.[2]
Consumption of prescription medication
It was not in issue that the Temazepam detected in the Applicant’s system was a prescription medication and that the Applicant was taking the drug in accordance with the instructions of his treating physicians. Nor did the evidence show that the Applicant had consumed the drug whilst at work or that he was impaired at work. The Applicant said he took the drug as directed on a needs basis, as prescribed, at night. The Applicant contended that he had previously disclosed to Brunel the fact that he had been prescribed and was taking Temazepam. Moreover, the Applicant provided evidence that his treating psychiatrist had confirmed in writing the Applicant’s fitness for work when taking this medication in accordance with instructions.[3] The Applicant argued that he declared that he was taking Temazepam at the drug test on 23 July 2024 and pointed out that after the non-negative result was returned, the situation was reviewed by the Mine superintendent and the Safety Officer for WHC and the Applicant was permitted to immediately return to work. He said there was no breach of the WHC Alcohol and Other Drugs Policy (WHC Policy) and that the consumption of the drug was referred to in, and consistent with, his ‘Order 43’ assessment, a mandatory periodic medical assessment undertaken by coal mine workers.
The Respondent said the Applicant had not responded to a request by them to provide details of prescription medications in February 2024, which was a time at which the Applicant was taking Temazepam. They said the Applicant had ignored an instruction from his Order 43 medical practitioner not to have Temazepam in his system while at work. Brunel said the Applicant had agreed both orally and in writing[4] less than 4 weeks before his termination ‘not to take Temazepam while at work’ before being found to have the drug in his system. They alleged that the Applicant had not disclosed that he was taking the drug when he took the first test on 23 July. The Respondent said the Applicant had failed to meet a condition for working on site that had been imposed by WHC and conveyed to them, i.e. that employees must not have Temazepam in their system while at work. They said the initial non-negative result, which was later confirmed as positive, amounted to misconduct and provided a valid reason for dismissal.
Failure to respond – February 2024
As to the Respondent’s request for medical information in February 2024, I accept that the Applicant received the request and did not respond to it at the time. I also accept the evidence from the Applicant and the Applicant’s partner, Ms Scarpinato, that the message found its way to the Applicant’s junk email box and that they had to search for the email before responding to it on 27 June to the effect that the information sought had already been supplied.
Applicant’s disclosure re use of Temazepam
The Applicant underwent an Order 43 medical assessment in April 2023. A written assessment and report were generated as a result. These were in evidence. The periodic health assessment made reference to the Applicant’s use of Temazepam. There was also correspondence dated 24 March 2023 from the Applicant’s treating psychiatrist indicating that the Applicant was taking Temazepam. It said the Applicant was fully compliant with treatment, had no side effects or ongoing symptoms. It noted that because the Applicant took Temazepam he may return a urine drug screen that was positive for benzodiazepines.
Mr Scott said the correspondence of 24 March 2023 was supplied to the Order 43 doctor[5]. Brunel’s Business Manager, Mr. Brownsey, gave evidence that the Order 43 report was sent to Brunel shortly after it was completed[6]. He accepted that the Applicant had consented to the full release of medical information to the company, including the use of Temazepam. He accepted that the report included no recommendations as to the taking of medications, that where the specialist had provided a report, they had indicated that the Applicant was fit for work when taking the medications and ultimately that there was no allegation that the Applicant was taking medication contrary to the health management plan of the Order 43 report.[7]
On the basis of the evidence, I accept that the Respondent was made aware of the Applicant’s medication shortly after the Order 43 process in April 2023 and were made aware of it because the Applicant had positively consented to the release of that information to them at that time.
I make one further point about the Order 43 medical assessment and report. Under the heading ‘Medications’ in the periodic health assessment, the medical practitioner made a notation about Temazepam. It said:
Shift work - prescribed by psychiatrist and this has been confirmed on a letter from the
specialist from 24/03/2023. Worker states not using it when working. Worker aware temazepam must not be present in his system when operating. Instant urine drug screen negative today.
The medical report itself makes mention of the Applicant’s mental health condition and notes that this is managed by medications and monthly visit to a psychiatrist. The Applicant denied having any recollection of the discussion with the Order 43 doctor in which he was told that he could not have Temazepam in his system when working. He pointed out that the certificate of fitness in the report makes no mention of limitations on the use of Temazepam under the heading ‘Recommendations/Restrictions.’
The Respondent said the notation represented an explicit instruction to the Applicant that he was not to have the drug in his system at work and that the Applicant had been in breach of that condition since the time of the 2023 report. It is difficult to take the notation as far as being a ‘condition’ to the Order 43 report. Ultimately any reference to the use of Temazepam was not included as part of the final restrictions and recommendations of the Order 43 report. Mr. Scott said that because there was no mention of the taking of Temazepam ‘on the front of the medical’ as a relevant restriction, it did not ‘flag’ in the Respondent’s system as an issue[8]. Because the Applicant had consented to the release of this information to the Respondent, there can be no suggestion that he was hiding his use of the drug. It appears then that the information was provided to the Respondent in 2023, but nothing further was done with it because it did not appear as a recommendation or restriction. Until the Medical Management Plan (MMP) discussed below, there was no direction or instruction from either the Respondent or WHC that a blanket prohibition applied in relation to medically prescribed Temazepam.
Alleged non-disclosure at first drug test – 23 July 2024
There was conflicting evidence as to whether the Applicant disclosed the use of Temazepam when he underwent the first drug test on 23 July 2024. The Applicant said he did disclose it. He provided mobile phone records to demonstrate that he was asking Ms. Scarpinato to confirm the name of the medication for him at the time of the test because he was undergoing a test and had forgotten the name.
The Respondent referred to the form that was completed by the person conducting the test, which they said made no reference to a disclosure. They referred to the inherent improbability that if a disclosure had been made, it would have been omitted from the form. The form itself made reference to ‘BP medication’ which the Applicant suggested may mean ‘bipolar medication’. The Respondent submitted the reference was more likely to be to blood pressure medication. No-one who participated in the testing process, other than the Applicant, gave evidence.
The reference to ‘BP medication’ on the form is inconclusive. I cannot be satisfied that this amounts to a record of a declaration as to the use of Temazepam. However, having regard to the Applicant’s evidence I accept that the Applicant did disclose the use of Temazepam at the test. The lack of an explicit reference to Temazepam in the test form may have been an oversight. It may have been the case that the form was completed before the Applicant recalled the name of the drug and made the disclosure and was not amended thereafter. I am of the view that given the terms of the WHC Policy it is unlikely that the Applicant would have been allowed to immediately return to work if there had been a non-negative result for presence of an undeclared drug in the Applicant’s system. It is also to be noted that the WHC Policy required the Applicant to complete a declaration of medication which was provided to the site WHS department[9]. Whatever was said at the time of the test, it is clear that the Applicant had completed this form, which included the reference to Temazepam, on 21 June 2024 and the form had been received by Brunel[10]. It is difficult to accept that, having already made such a declaration, the Applicant would deliberately withhold that information at a drug test.
In any event, Mr. Brownsey acknowledged in cross-examination that Brunel did not receive the form completed by the drug tester until well after the termination of the Applicant’s employment[11]. Any alleged non-disclosure was not something that could have formed part of the Respondent’s consideration at the time of termination even though Mr. Brownsey said it was secondary factor in the decision to terminate[12].
I do not consider that there is any basis for a view that there was a non-disclosure by the Applicant on 23 July that lends support to a conclusion that there was valid reason for termination related to the Applicant’s conduct over the use of Temazepam.
Brunel Medical Management Plan
On 25 June 2024 the Applicant signed a MMP after a discussion with Mr. Scott. The critical content of the MMP is set out at paragraph [11] above. It appears that what prompted this MMP was the Applicant’s declaration of medication dated 21 June 2024 in relation to his return to work and a discussion between Mr. Scott and representatives of WHC.
In cross-examination Mr Scott was asked about the WHC ‘safety rules’ that are referred to in the MMP. He said the words were included because he spoke to the health and safety superintendent who in turn spoke to the WHC chief medical officer[13] and that he had ‘an email from site saying (the Applicant) must not take Temazepam at all.’[14] Mr. Scott referred to the WHC Policy and the Fitness for Work Policy as reflecting a WHC prohibition on the presence of Temazepam[15] for workers on the site. The former policy was in evidence, the latter was not.
Mr. Scott was taken to the WHC Policy in cross-examination. There is no outright prohibition of prescribed Temazepam being present in an employee’s system in the Policy. Mr. Scott ultimately accepted that there was no other specific medication aside from medicinal cannabis that is listed in the WHC Policy as being prohibited. He also accepted that the WHC Policy sets out a procedure for dealing with the management of drug tests, although he said in cross-examination that he was reading that procedure for the first time[16] and disputed its application on the basis that the Applicant had not disclosed his use of Temazepam on 23 July.
There were conflicting accounts of the conversation between the Applicant and Mr. Scott on 25 June 2024. The Applicant’s version was that he told Mr. Scott that he only took the drug outside of work hours and always followed his physician’s instructions. The Applicant said he said to Mr Scott words to the effect that ‘you would have to be an idiot to take it at work.’ According to the Applicant, Mr. Scott told him that he was not to take Temazepam while he was at work. Mr Scott did not say that the Applicant was not to have any traces of benzodiazepines in his system while working.
Mr. Scott disputed this version and said he told the Applicant that it was a requirement of WHC that he must not have traces of benzodiazepines in his system while working. He said he did this because he had been directed by WHC that the Applicant’s return to work was conditional upon the Applicant committing to a MMP that prohibited the use of Temazepam whilst at work.
The terms of the resultant MMP signed by the parties are not as clear as they could have been. The MMP says that the Applicant must not ‘take’ Temazepam ‘during assignment’ and that it is against ‘WHC safety rules’ to ‘take’ benzodiazepine if performing a safety critical role. It does not say that the Applicant was to have no traces of the drug in his system or that he was prohibited from taking the drug during and after working hours. Both versions of the conversation are credible. Certainly Mr. Scott accepted that the Applicant said ‘you would have to be an idiot to take it at work’ suggesting that the Applicant thought he was being asked to refrain from taking the drug during working hours. In cross-examination Mr Scott said this occurred in a previous conversation and that he reiterated that the Applicant was not permitted to have the drug in his system at all in a later discussion. There was no mention of an earlier conversation where the Applicant said those words in Mr. Scott’s evidence in chief.
It is clear from the evidence of both witnesses that the Applicant had in his mind that he was being told that he could not take the drug whilst he was at work. I think the likelihood is that the Applicant genuinely believed that was what he was being told. However, I also think that Mr. Scott had attempted to convey in clear terms that the Applicant was not permitted to have the drug in his system at any time during his engagement on the Mine. This was what was required by WHC and I think it unlikely that he would be conveying something less than this to the Applicant.
Although there is some uncertainty as to the requirements of the written MMP that emerged from the conversation, I am satisfied that the requirement that was being imposed was that the Applicant was not to have the drug in his system at all. In short, I think the parties were at cross-purposes after the discussion. Although I accept that the Applicant would have placed greater store in what he took away from the conversation as opposed to the terms of the written MMP, I think that the Respondent had imposed a requirement on the Applicant that he not have the drug in his system whilst he was engaged at the Mine. His failure to meet that requirement on 23 July 2024 provided a valid reason for the termination of his employment.
387(b) -Was the Applicant notified of the valid reason?
Proper consideration of s.387(b) requires a finding to be made as to whether the applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a).[17]
Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment,[18] and in explicit[19] and plain and clear terms.[20]
The Applicant was notified of the reasons for his termination verbally in a very brief conversation with Ms. Mitchell in the car park, following which his termination took immediate effect. The letter of termination provided shortly after the meeting confirmed the reasons as being covering a critical safety system and taking Temazepam contrary to the MMP and WHC’s safety rules.
387(c) - Was the Applicant given an opportunity to respond to any valid reason related to their capacity or conduct?
An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment.[21]
The opportunity to respond does not require formality and this factor is to be applied in a common-sense way to ensure the employee is treated fairly.[22] Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements.[23]
The Respondent submitted that there was an opportunity to respond to the allegation in relation to the OAS system. It is true that there was an investigation into the incident by WHC and the Applicant was given an opportunity to give his version of events. This was done in a meeting with WHC on 25 July 2024. Any opportunity the Applicant had for giving his account to the Respondent about this incident was very brief. He was called to a car park meeting the following day and after a meeting lasting a matter of 2 minutes, was summarily dismissed. He had no real forewarning that he was about to attend a meeting that would result in the termination of his employment.
The decision to terminate the Applicant’s employment was made by Mr. Brownsey in conjunction with Ms. Edwards in Brunel’s HR department. Neither of those people spoke to the Applicant before the decision was made to terminate the Applicant’s employment[24]. The letter of termination provided later that day did little more than confirm the termination of employment that had already been conveyed to him orally. There was no genuine opportunity to respond and no proper consideration of anything the Applicant had to say during the brief discussion in the car park. The decision had already been made.
The Respondent’s submission was that in respect of the Temazepam issue, there was no opportunity to respond and no requirement to provide such an opportunity because ‘there was no value in exploring why an explicit instruction agreed to by (the Applicant) was broken’[25].
In my view the processes followed by the Respondent were manifestly inadequate, particularly in relation to the Temazepam issue. The Applicant should have been allowed to offer his explanation in relation to the taking of prescribed medication which he had previously disclosed to the company, his understanding of the requirements of the MMP and how the incident should be dealt with having regard to all the circumstances, including the WHC Policy. Had that occurred, those matters could have been given proper consideration. Instead, the Applicant was presented with a fait accompli in the car park.
387(d) - Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?
Where an employee who is protected from unfair dismissal has requested that a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present. The Applicant submitted that he had effectively and unreasonably been denied the presence of a support person. However, there was no evidence of any request for a support person. There was no unreasonable refusal in this case.
387(e) - Was the Applicant warned about unsatisfactory performance before the dismissal?
The Applicant was dismissed for reasons relating to conduct rather than performance. The parties submitted that this was not a relevant consideration here. I do not regard this as a relevant factor in the present case.
387(f) and (g) - To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal and to what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal?
The Respondent is a company of significant size and has dedicated human resource management specialists and expertise. The parties submitted that these were not relevant factors here and I accept that to be the case.
387(h) - What other matters are relevant?
The Applicant had a period of satisfactory service of in excess of 4 years. That is a matter that should be taken into account in the assessment as to whether the termination was in the circumstances harsh, unjust or unreasonable.
I also think it is important to take into account the fact that the imposition of total ban on the consumption of benzodiazepines, including Temazepam, prescribed or otherwise, for employees at the Mine was a new and different requirement to that contained in the WHC Policy which applied to the Applicant. The Policy dealt with prescribed medications. It required employees to take certain steps including the completion of a declaration of medication. The Applicant had completed that form on 21 June.
The Policy provided for a process for dealing with the return of a non-negative screening result[26] and positive results[27]. It provided for disciplinary processes. It included the following:
3.6.2 Management of other drugs tests
….The confirmatory test results will confirm a positive result. If a positive result is recorded, the worker will be managed in accordance with section 3.7, 'Management of positive results',
Where it is confirmed by the accredited testing lab analysis that the test results are consistent with a declared prescription medication in type/quantity, then the test will not be deemed or recorded as 'positive'…
3.7.1 First positive test result
Subject to the worker returning to work in accordance with section 3.7 return to work following a non-negative test or positive result, the responsible manager will discuss the positive result with the worker who will be advised of the EAP services available and encouraged to take part in this confidential support and counselling service.
All subsequent positive results may lead to further disciplinary action.
Upon return to work a first written warning will be recorded on the person’s personal file.
3.7.2 Second positive result
A second positive result may result in termination of employment. For termination to occur the second positive must be recorded within 5 years of the first positive result.
3.8 Return to work following a non-negative test of positive result
The following processes returning to work following a non-negative test or positive result should be adhered to:
For non-negative drug tests that are not consistent with the worker’s declaration of
medication, the worker must not resume work until the confirmatory results from laboratory testing are available.If the confirmatory results from the laboratory confirm a negative result or consistent with declared medication, the worker may resume work….
The Respondent accepted that summary termination for a positive test result for prescribed Temazepam was not necessarily consistent with the WHC Policy. However, they argued that they had received an explicit instruction from WHC as to the Applicant’s use of Temazepam and had imposed the MMP to accommodate the instruction. They said that WHC was entitled to vary its policy in respect of the Applicant (and others) where it was necessary to ensure the site was operating safely.
The conflicting requirements of the Applicant’s medical condition, his use of a prescribed medication, the terms of the WHC Policy and the additional instruction from WHC that the use of Temazepam by the Applicant was prohibited at all times should have been the subject of further consideration and discussion before the decision to terminate was implemented. The longstanding disclosure of his use of medication, imposition of a new policy and what I regard as the Applicant’s genuine misunderstanding of what was required of him are all matters that should have been taken into proper account before the termination occurred. These matters contributed to the resultant unfairness that the dismissal visited upon the Applicant.
Conclusion
The majority in Australia Post[28] observed that ‘(A) determination as to whether a dismissal was harsh, unjust or unreasonable involves the application of a broad discretionary standard. The discretion is nevertheless one that must be exercised judicially, that is, in accordance with applicable legal principles.’ They also referred to the ‘bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be ‘harsh unjust or unreasonable’ notwithstanding the existence of a ‘valid reason’ for the dismissal.’[29]
Having considered each of the matters specified in section 387 of the FW Act, I am satisfied that the dismissal of the Applicant was harsh and unreasonable. I am therefore satisfied that the Applicant was unfairly dismissed within the meaning of section 385 of the FW Act.
Remedy
In considering an appropriate remedy in a case of unfair dismissal, regard must also be had to the legislative object set out in s.381 of the Act. This includes an emphasis on the remedy of reinstatement[30] and on ensuring that a “fair go all round” is accorded to both the employer and employee concerned.[31]
The Applicant did not seek reinstatement at the hearing. It was accepted that the Respondent’s contract with WHC would come to an end on 31 December 2024. I do not regard reinstatement as appropriate in the circumstances.
The Commission can only order the payment of compensation where it is satisfied that reinstatement is inappropriate, and it considers that such an order is appropriate in all the circumstances.[32]
I am satisfied that it is appropriate in the circumstances to make an order for compensation in lieu of reinstatement. In doing so, I am required by s.392 to take account of all of the circumstances of the case, including the matters listed in subsections (2)(a) to (g) of that section. The Applicant sought compensation for the earnings he had lost from the date of termination until the date of cessation of the Respondent’s contract with WHC.
There was no evidence as to the effect of any order for compensation on the viability of the Respondent. I am unable to conclude that the effect of the proposed order on a business of this size would have a material impact on the Respondent’s viability. The Applicant was employed for a period of more than 4 years. This is a reasonable period of service, and I take that into account in the assessment of the circumstances relevant to the making of an order.
There were limited submissions as to the remuneration that the Applicant would have received or been likely to receive had he not been dismissed, I am of the view that there would have been at least some limitation on the continuation of the employment relationship until the end of the contract on 31 December 2024. WHC had imposed a total prohibition on the Applicant’s use of his prescribed medication which he had been taking for some time. In the absence of a change to the Applicant’ regime of medication this would have had some impact on the Applicant’s ongoing employment prospects. Overall, I think it likely that the Applicant would have continued in employment for at least a further 10 weeks had he not been dismissed.
There was unchallenged evidence from the Applicant as to his efforts to mitigate his loss. He had made approximately 90 applications for alternative employment without success. There was no evidence of any earnings from the date of dismissal to the date of the hearing. I would not discount any award of compensation on either account. I have also taken into account the amount reasonably likely to be earned between the making of the proposed order and the actual compensation and do not propose to discount the proposed order on that account noting that any income reasonably likely to be earned from employment or other work after the making of the order would not relate to the anticipated period of employment.[33]
Section 392(3) requires the Commission to reduce any amount of compensation to be ordered by an appropriate amount where it is satisfied that the misconduct of a person contributed to the employer’s decision to dismiss the person. Having concluded that the Applicant engaged in misconduct, I propose to reduce the proposed amount accordingly. I propose to reduce the amount of compensation on this account by an amount of 2 weeks’ pay.
The well-established approach to the assessment of the quantum of compensation under s.392 of the Act is to apply the “Sprigg formula”. That formula is derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul’s Licensed Festival Supermarket.[34]
The approach in Sprigg is as follows:
Step 1: Estimate the remuneration the employee would have received, or have been likely to have received, if the employer had not terminated the employment (remuneration lost).
Step 2: Deduct monies earned since termination. Workers’ compensation payments are deducted but not social security payments. The failure of an applicant to mitigate his or her loss may lead to a reduction in the amount of compensation ordered.
Step 3: Discount the remaining amount for contingencies.
Step 4: Calculate the impact of taxation to ensure that the employee receives the actual amount he or she would have received if they had continued in their employment.
Step 5: Assess the figure against the compensation cap.
In accordance with step 3 above, I would adjust the proposed amount by a further 5% for contingencies.
Applying the above formula to this case I am of the view that order for compensation should be made in an amount of $20,648.29 (gross) being $2,716.88 per week multiplied by 8 weeks, i.e. $21,735.04, less 5%. I would also award superannuation contributions on this amount at the statutory rate of 11.5%.
The amount proposed does not exceed the compensation cap. Having regard to the circumstances as a whole, I do not consider an order in this amount to be clearly inadequate or clearly excessive.
The gross amount above should be adjusted for taxation purposes.
An order to this effect will issue separately.
DEPUTY PRESIDENT
Appearances:
Mr K Endacott, Mining and Energy Union for the Applicant
Mr S Sasse for the Respondent
Hearing details:
25 & 26 November 2024, in Sydney and via Microsoft Teams to Perth.
[1] Selvachandran v. Peterson Plastics Pty Ltd (1995) 62 IR 371 at 373.
[2] Transcript PN1511.
[3] Exhibit A1 Annexure BU5.
[4] Exhibit R2 paragraph 5 and Annexure 3.
[5] Transcript PN 925.
[6] Transcript PN 592.
[7] Transcript PN 621 to 628.
[8] Transcript PN 938.
[9] Policy at 3.4.5.
[10] Exhibit A1 Annexure BU10. Transcript PN 841.
[11] Transcript PN 555 to 561.
[12] PN 550 and 561.
[13] PN 769 and 775.
[14] PN 862.
[15] PN 774.
[16] PN 894.
[17] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].
[18] Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
[19] Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998).
[20] Ibid.
[21] Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].
[22] RMIT v Asher (2010) 194 IR 1, 14-15.
[23] Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.
[24] PN 406-407.
[25] See PN 1532 to 1543.
[26] At 3.6.2.
[27] At 3.7.
[28] B, C and D v. Australian Postal Corporation t/aAustralia Post [2013] FWCFB 6191 at [53].
[29] Ibid [41].
[30] s 381(1)(c).
[31] BlueScope Steel Limited v Sirijovski[2014] FWCFB 2593 at [73].
[32] Section 390(3).
[33] Ellawala v. Australian Postal Corporation Print S5109 at [34] and following.
[34] (1998) 88 IR 21.
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