Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essential Energy
[2020] FWC 6835
•23 DECEMBER 2020
| [2020] FWC 6835 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s 739—Dispute resolution
Ian Dart; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Essential Energy
(C2019/7557)
Electrical power industry | |
DEPUTY PRESIDENT SAMS | SYDNEY, 23 DECEMBER 2020 |
Application to have the Commission deal with a dispute under an enterprise agreement – Engineering Officer of Essential Energy – employee disputes formal warning for refusing to undergo random drug and alcohol testing – breaches of policies and Code of Conduct – whether warning justified – employee seeks removal of warning from his record – employee claims he did not refuse to undertake test – allegation employer breached its own policy – claim that warning inconsistent with Fair and Just Culture policy – employee not a credible witness – explanations not acceptable or implausible – formal warning justified – employee breached policies, procedures and Code of Conduct – Commission declines to intervene in decision to issue formal warning – dispute resolved.
BACKGROUND
[1] On 11 November 2019, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ‘CEPU’ or the ‘Union’) filed an application on behalf of its member, Mr Ian Dart, pursuant to s 739 of the Fair Work Act 2009 (the ‘Act’), in which it seeks to have the Fair Work Commission (the ‘Commission’) deal with a dispute under the Dispute Settlement Procedure (the ‘DSP’) of the Essential Energy Enterprise Agreement 2018 (the ‘Agreement’).
[2] The dispute concerns a formal warning issued to Mr Dart, an Engineering Officer, on 16 April 2019, by Mr David Salisbury, Executive Manager Engineering for Essential Energy, in respect to an incident on 9 April 2019 at the Coffs Harbour, New South Wales depot, in which it said that Mr Dart had refused to take a test for alcohol and/or drugs, which is taken to be a confirmed positive test with the same consequences as per Cls 6.2 and 6.5 of the Essential Energy Alcohol and Other Drugs Policy (the ‘Policy’). Mr Dart was also required to participate in a Management Plan which would include random testing.
[3] The Union, on Mr Dart’s behalf, denied that he had refused to undertake the test, and challenged the basis for the warning (which I will come to shortly). The Union sought the warning be rescinded and removed from Mr Dart’s personnel file.
[4] The application was listed for a conciliation conference on 30 January 2020. Although no settlement of the dispute was reached, further ‘out of session’ discussions were held in February 2020. Nothing further was heard from either party, until the Union sought to reagitate the matter in the Commission in September 2020. Directions were issued for a hearing on 4 and 5 November 2020. At the hearing, Mr A Jacka appeared for the Union with Mr Dart, and Mr J O’Neill with Mr J Wakefield and Ms T Power appeared for Essential Energy (‘Essential’ or the ‘respondent’). I apprehend that there is no jurisdictional objection to the Commission exercising its powers of arbitration, in accordance with the Agreement and s 739 of the Act.
THE EVIDENCE
[5] Relevant sections of the Policy are set out below:
6.2 Causal and Random Testing for Alcohol and/or Other Drugs
Where an employee returns a non-negative drug test which has been confirmed by laboratory testing and/or a second breath test result is over the Essential Energy threshold they shall be subject to the following consequences:
1st offence: As per CECM02000.81 Performance Counselling
• Conduct counselling and complete First Formal Counselling Session, Attachment A within the document
• The employee shall be stood down from full duties and provided with suitable duties where appropriate until such time as a negative (clear) test is obtained or a medical clearance is given by a doctor if required as determined by the Health & Wellbeing Programs Manager. The employee cannot work full duties, overtime or on call duties until this result is received
• First warning letter issued by the relevant General Manager in consultation with the Human Resources Manager and Workplace Relations Manager, during a meeting with relevant line manager/supervisor. A letter stored along with the test documentation within both the paper personnel file and confidential TotalSAFE health entry
• A union representative can be invited to any meetings which are held with a staff member who returns a positive alcohol and/or other drug test
• If deemed appropriate by the relevant General Manager, an Alcohol and/or Other Drugs Management Plan may be set up and signed off by all parties including Health & Injury Management Specialist or Human Resources Manager and Workplace Relations Manager. The Alcohol and/or Other Drugs Management Plan should include:
• Details of the alcohol and/or other drugs rehabilitation programme
• Details of the suitable duties to be undertaken
• Details of the follow up testing regime (a programme of repeat testing should be undertaken and monitored at the discretion of the Health & Wellbeing Programs Manager and/or a doctor based on the circumstances. Monitoring of the programme to be conducted by the Health & Wellbeing Programs Manager, manager/supervisor and Human Resources Manager and Workplace Relations Manager for the period of time prescribed)
• Alcohol and/or other drug rehabilitation programme set up in conjunction with Health & Injury Management Specialist, Human Resources Manager and Workplace Relations Manager and a copy provided to the Health & Wellbeing Programs Manager
• A copy of the test results, performance counselling letter and the rehabilitation programme undertaken must all be attached to the worker’s personnel file by the Human Resources Manager and Workplace Relations Manager and sent to the Health & Wellbeing Manager
• Others shall be required to leave the site
• Workers shall be stood down and their PCBU notified.
2nd offence: As per 1st offence including a second warning letter.
3rd offence: Employee shall be dismissed from Essential Energy once confirmatory test results are received indicating a third positive test. An employee who has been dismissed will have rights under FWA, and Unfair Dismissal provisions.
In line with CEOP2268 Safety: OHS&E Worksafe document, section 2.1.5 step 3, there will be a three year rolling limit on the progression of penalties. At the appropriate anniversary of the most recent offence the employee’s record will be clean slated for administration purposes.
6.4 Returning a Non Negative Test for drugs and/or a confirmed alcohol breath test during a rehabilitation program
Employees shall be dismissed from Essential Energy once confirmatory test results are received indicating a positive test for drugs and/or a second breath test result is over the Essential Energy threshold. An employee who has been dismissed will have rights under FWA, and Unfair Dismissal provisions.
6.5 Refusal to Undertake a Test for Alcohol and/or Other Drugs
A refusal to take a test for alcohol and/or other drugs shall be taken as a confirmed positive test and the same consequences shall apply as per Section 6.2.
[6] Random Testing is set out at Cls 5.2 and 7.2 as follows:
5.2 Random Testing for Alcohol and/or other Drugs
All workers and others may be subject to random testing at any time. There is an expectation that all sites may be tested at least 2 times per annum.
7.2 Random Testing
Shall be undertaken without warning for a group of workers and others and shall involve the taking of a sample of oral fluid (saliva) to detect the presence of drugs and use of a hand held breathalyser to detect alcohol concentrations. This testing shall be undertaken by an external service provider.
The testing procedure shall be done in accordance with AS4760-2006. The samples shall be handled as per the relevant standard using the appropriate chain of custody procedures. Samples which return a non-negative test at the initial screening test shall be sent to the laboratory for confirmatory testing.
A person who returns an initial alcohol screening test of 0.05g/100ml or above whilst at work for Essential Energy shall be required to take a second test at least 15 minutes later as a confirmatory test. If this is also above Essential Energy’s threshold then the person shall be escorted home and the consequences as per Section 6.2 of this manual shall be instituted.
[7] It is to be observed that the Policy applying at the relevant time has been replaced by a new policy. However, the fundamentals of the provisions cited above are not materially different for present purposes.
[8] The following persons provided statement and oral evidence in the proceeding:
• Mr Dart;
• Mr Joel Wakefield – Crew Coordinator, Essential;
• Mr Daniel Saw – Network Main Design Manager, Essential; and
• Ms Tane Power – HR Business Partner, Essential.
Case for the Union and Mr Dart
[9] Much of the factual circumstances of this case are not in contest and where there is conflicting evidence, it relates, in substance, to what Mr Dart was told, and by whom on the morning of 9 April 2019 and Mr Dart’s understanding of what he was told. Essentially, Mr Dart’s case rests on three propositions which he claims provides a basis for the withdrawal of the formal warning and its removal from his personnel file. These are:
(1) He did not refuse to participate in a test;
(2) Essential failed to apply the Policy correctly; and
(3) The warning is not consistent with Essential’s Fair and Just Culture Policy.
[10] Mr Dart relied on his two statements tendered in the proceedings. Without repeating the general factual matters going to the circumstances that day, Mr Dart made some notable and decisive admissions which I will come to shortly. Mr Dart made the following points in his statement evidence:
(a) His tasks for the day involved work on AOA defects caused by vehicles hitting a streetlight pole in Dorrigo to meet some property owners to ‘peg a stay’.
(b) Around 7:30am, he heard Mr Wakefield yelling out in the Design Room ‘the drug testers are in’. He remained in his cubicle and expected Mr Wakefield to come and tell him if he was on the list. Mr Dart claims he has industrial deafness in one ear and has difficulty hearing conversations in the Design Room.
(c) Mr Dart heard Mr Wakefield say that everyone was on the list, except Mr Stephen Borchart. Other staff challenged this as wrong and incorrect. Mr Wakefield said he would find out. Mr Dart continue his design work for the trip to Dorrigo, about an hour away.
(d) Mr Dart left the room after about 20 minutes to organise and load a pool vehicle and returned to the front office car park. He left the depot at around 8:20am.
(e) Around 9:20am in Dorrigo, Ms Sue Cameron, Service Delivery Officer called, and they had the following conversation:
Ms Cameron: Where abouts are you?
Mr Dart: In Dorrigo
Ms Cameron: Do you know your down on the list to be tested for drugs & alcohol today?
Mr Dart: I didn’t know that I was on the list to be tested. No one told or came see me to let me know. Joel had come in and said everyone was on the list, but everyone thought he had made a mistake. He never confirmed with me I was required to take & drug & alcohol test.”
(f) Mr Dart returned to the depot around lunch time. He had the following conversation with Mr Mark Drew (Project Manager):
Mr Dart: Sue called me up this morning when I was on the way to the job said I was on the list for a drug and alcohol test. No one had said anything to me since.
Mr Drew: Joel came in later after you had left with the list of people who had been selected at random for the test. Me, Isaac, and you were picked at random to do the test. Because you were not in the room, Joel asked me to tell you.
(g) The next day (Wednesday) after taking the test and returning a negative result, he had the following conversation with Mr Wakefield:
Mr Dart: I have just been randomly tested for drugs & /alcohol. When did you tell me I was on the list yesterday?
Mr Wakefield: I told everyone that they were on the list
Mr Dart: Yeah, but that was wrong. So when did you actually speak to me and let me know I was required for a random drug & alcohol test?
Mr Wakefield: I didn’t.
(h) On Thursday 11 April 2019, Mr Dart emailed Mr Matthew Reedy (Operations Manager North Coast) to request a meeting about the events of the past two days. They had a meeting and the conversation was as follows:
Mr Dart: Hi Matt, I wanted to see you about drug and alcohol testing and communication.
Mr Reedy: No worries.
Mr Dart: The other day when the drug testers were in Joel Wakefield came into the middle of the design room and proceeded to have a town hall meeting stating everyone is on the list…
Mr Reedy: So you were told?
Mr Dart: What do you mean?
Mr Reedy: You were told that you were on the list.
Mr Dart: No one came and spoke to me. When Joel came in, there was a lot of uncertainty and confusion. Joel had made a mistake. This was verified when Joel said he was going to get clarification and left the room.
Mr Reedy: Essential Energy could test the whole depot if it chose to. You were on the list when Joel announce it, so by leaving the site we have deemed that to be a refusal to take the test.
Mr Dart: You’ve got to be kidding. The list was in fact not the list that they eventually used. I believe Joel had gone away and spoken to Steven Moore who confirmed Joel needed to see the testing lady, so she could pick the random people to be tested subsequentially a second list was produced which was the one they used to select the people required for testing on that day.
Mr Dart: The incident yesterday with Steve when he didn’t communicate, I was required to undertake a D&A test was not right. Steve should have told me as I believe he had a duty to communicate this requirement.
Mr Reedy: I have spoken to Steve already and all he was trying to do was be subtle.
Mr Dart: I would have preferred to be told if I am required to take a random drug/alcohol test. So how is the list made up the random selection process?
Mr Reedy: Everyone in the depot has their names on a list and the tester then randomly selects the people to be tested.
Mr Dart: Is that when I was selected?
Mr Reedy: You were selected twice. Meaning the first list where everyone was to be tested & the second list that the drug tester had randomly selected people. Because you refused the test that’s classified as a non‐negative result so I organised the drug and alcohol tester to come in yesterday and give you a confirmatory test.
Mr Dart: So why wasn’t I stood down?
Mr Reedy: We tried ringing your boss but couldn’t get hold of him.
Mr Dart: I want to raise some communication issues at the depot in regards to communication around depot issues, work practices or depot changes, that affected other working groups and the fact that his staff were not communicating these, so we had no idea what was going on.
Mr Reedy: I will talk to my staff about your concerns.
(i) On 12 April 2019, Mr Saw rang him about his refusal to take the test. He continued to dispute he had been told to take the test and the conversation went ‘around in circles’.
(j) Mr Dart described the meeting with Mr Saw, Mr Michael Sprenkeler (Network Mains Delivery Manager) and his support person, Mr Van Anen, on 16 April 2019. He had prepared a statement of his defence and recommendations to resolve the issue. Mr Saw and Mr Sprenkeler flicked through his statement and had prepared a warning letter. He became frustrated and annoyed that the meting was not getting anywhere and said: ‘I will take this matter further as this is bullshit’.
(k) After the meeting, he spoke to Mr Drew. The conversation was:
Mr Dart: I have just been given a warning letter that stays on my record for 3 years.
Mr Drew: I told you that morning that you were required to do the test.
Mr Dart: Really?
Mr Drew: Yes.
Mr Dart: Oh shit I had forgotten about that.
Mr Dart believed Mr Drew’s comment was a joke.
(l) On 18 April 2019, Mr Dart filed a grievance with Mr Saw who rang him on 1 May 2019 and told him he would be dismissing his grievance. He contacted the Union and the Union filed a dispute on 2 May 2019 under the Agreement’s DSP.
(m) Mr Dart referred to a number of emails between himself, the Union and management between 2 May and 2 October 2019. He attended a Tier 2 meeting on 2 October 2019.
[11] Mr Dart described the personal impacts on him from this dispute as follows:
‘49. Personally, I have found it difficult to sleep throughout this period as I often wake up in the middle of the night thinking about the issues and solutions. As I did this morning at 1am. I woke up and couldn’t go back to sleep as my mind races for resolution, answers and what I need to accomplish to finalise all of this. My relationship with my family during this period has been stretched. I’m tired, stressed and irritable. After I received the warning letter, I was constantly tossing and turning and getting out of bed during the night.
50. This warning letter stays on my records for 3 years but I don’t know who has access to it. At work I find it hard to be the person I once was happy, cheerful, keen, eager and always willing to help and offer assistance to others. I believe my work has suffered due to the prolonged period this dispute has been going on for and my attitude towards Essential Energy as being the employer of choice has truly been tarnished. This plays on my mind as some people may hear stories or make opinions about me, which are untrue or misleading. This weighs heavily on my mind, uncertain about my future career & prospects within Essential Energy. I constantly wonder when applying for internal jobs whether the hiring manager has access to my records as I know HR are a part of this process & have access to it
51. I cannot see any reason as to why Essential Energy needs this letter on peoples records for 3 years. This formal warning has taken a personal & professional toll on me.’
Mr Van Anen’s statement
[12] Mr Van Anen works in the same office as Mr Dart and has known him for eight years.
[13] On 9 April 2019, while working next to Mr Dart, he noticed Mr Drew talking in the Design Room, but could not hear what he was saying because he had his earphones in listening to music. He heard part of the conversation and then had his own exchange with Mr Drew as follows:
‘Mr Drew: What are we all on the list? So we are going to do testing all day?
Mr Van Anen: What just happened?
Mr Drew: Joel Wakefield just came into let us know that we were all on the drug & alcohol testing list to be tested?
Mr Van Anen: What all of us are being tested?
Mr Drew: I questioned Joel, saying that surely the whole office & depot wasn’t being tested. Joel said he was going to clarify who was on the list and if it was all of the office.’
[14] Mr Wakefield returned within 30 minutes to advise who was on the list and told Mr Van Anen ‘You are on the list with Ian, but the whole depot isn’t being tested as first thought’. Mr Dart was not in the office at this point, but returned shortly after. He did not see or hear Mr Drew tell Mr Dart he was on the list.
[15] Mr Van Anen overheard Ms Cameron on the phone saying Mr Dart was supposed to be tested, but he was on his way to Dorrigo. Ms Cameron said to him ‘You are the last one to be tested. Ian is not available for testing’.
[16] Mr Van Anen attended the meeting with the applicant as his support person on 16 April 2019. After some tension, Mr Dart left the meeting and Mr Van Anen stayed to explain the issues he had with the testing process. He said:
‘I don’t feel that the drug & alcohol testing process in our depot has been clear as quite often someone is picked on the list who isn’t present and someone in the office is picked instead. This happens all the time I wasn’t aware of any occasion where someone was asked to return to the depot to be tested. If someone has left site, someone else is picked … I didn’t hear being told I was on the testing list and I could have easily left the depot but I think I would have been asked to return to complete the test so I wouldn’t be refusing a drug & alcohol test. This may have to do with the fact that I have good relationships with people in the depot but my relationship with depot staff shouldn’t be a reason for different treatment under these circumstances.’
For the respondent
Mr Wakefield
[17] On the morning of 9 April 2019, Mr Wakefield was backfilling the Resource Supervisor role. While coordinating the daily toolbox meeting around 7:30am, Mr Wakefield noticed the unannounced arrival of a Drug and Alcohol representative to carry out random testing. After welcoming her, she asked him to advise the depot of her arrival. Mr Wakefield said he moved around the depot to announce that there would be drug and alcohol testing, and everyone was required to participate and not leave the site until further notice. He went to the Design Room where Mr Dart works and made the same announcement. Mr Mark Drew, a long time senior employee, asked whether he was sure everyone was to be tested, and his response was ‘I will confirm that, but at this time everyone is required and no one is to leave the depot’.
[18] Mr Wakefield said he returned to the tester and asked what was next required. She advised that participants would be randomly selected from an app on her phone. She provided him with the 8-10 selected names, one of whom was Mr Dart. Mr Wakefield rounded up the named employees, but could not find Mr Dart. He told Mr Drew that if Mr Dart returned to the Design Room to let him know. Mr Wakefield believed it was entirely appropriate to delegate this task to Mr Drew.
[19] Around 9:30am, Mr Wakefield was informed that Mr Dart had not presented for testing. Mr Wakefield went back to Mr Drew and they had the following conversation:
‘Mr Wakefield: Mark did you inform Ian that he was required for Drug and Alcohol testing?
Mr Drew: Yes I did, he returned to his desk to grab some more gear and I told him Joel came back in here and told me to tell you that you are on the list and required for testing. Ian said back to me, “well nobody told me and walked out the door”.
Mr Wakefield: Well that is fucking ridiculous he will have to deal with the consequences.’
[20] Mr Wakefield said that he and Mr Drew had a number of subsequent conversations in which they discussed Mr Dart’s not taking ownership of his choices and blaming everyone else for him not presenting for testing. The next day, Mr Wakefield confronted Mr Dart in the meal room and they had the following conversation:
‘Mr Dart: At what point did you tell me I was on the list yesterday?
Mr Wakefield: When I went in the design room yesterday, I announced everyone was on the list and not to leave the depot.
Mr Dart: Yeah but I knew you were wrong, but when did you tell me I was on the list.
Mr Wakefield: I didn't, but you were told everyone was to be tested and to stay in the depot.
Mr Dart: But I knew you were wrong.
Mr Wakefield: Whatever Darty’
Mr Wakefield said that the morning of 9 April 2019 was ‘extremely pressured’ as he was filling in for the Supervisor, administering the random testing and preparing the crews for the day.
Reply statement of Mr Wakefield
[21] Mr Wakefield denied that on the morning of 9 April 2019, he was yelling ‘the drug testers are in’. He did not believe his announcement was wrong or incorrect. Mr Dart had accepted he had said everyone is on the list. By leaving the room, to seek clarification was not an admission of a mistake. He just wanted to make absolutely sure he was delivering the right information to the right people. Mr Wakefield denied that no one told Mr Dart he was required for testing. Mr Drew had told him.
Mr Saw
[22] Mr Saw was advised on 10 April 2019 in a call from Mr Matthew Reedy, Operations Manager, of what had transpired the day before at Coffs Harbour. Mr Saw was told that contact could not be made with Mr Dart’s direct manager, Mr Boyling, to find out why Mr Dart had gone into the field and if he should be stood down. Mr Saw understood a second test was arranged that morning which was negative. Mr Reedy left it to him to decide on next steps.
[23] Mr Saw then instructed Mr Sprenkeler to begin interviewing relevant persons. Mr Sprenkeler’s notes of these meetings were attached to Mr Saw’s statement. They involved Mr Boyling, Ms Cameron, Mr Steven Moore (Senior Resource Supervisor), Mr Reedy and Mr Wakefield. Mr Saw spoke to Mr Dart on the morning of 12 April 2019. Mr Dart told him that Mr Wakefield had seemed confused on the morning of 9 April 2019 and wanted to find out what was going on. After this, Mr Dart had said he went to organise a pool vehicle to go to Dorrigo to look at some ADAs (design investigation and a peg hole). When he asked him if he understood his obligation under the Policy, he agreed he did. Mr Dart told him he was tested the next day.
[24] Mr Saw said to Mr Dart that he was disappointed that he had left the depot, despite being told by Mr Wakefield to not leave, even though he may have seemed confused. If he had any doubts, he should have resolved them before leaving. He replied ‘yes, I know that now’.
[25] At a meeting with Ms Power, Mr Moore and Mr Sprenkeler on 12 April 2019, it was agreed they would recommend to the Executive Manager, Engineering, Mr David Salisbury, that a formal warning should be issued.
[26] Mr Saw and Mr Sprenkeler, met Mr Dart and his support person on 16 April 2019, during which Mr Dart provided a nine-page document containing his notes, views and emails relating to the incident. Mr Saw said Mr Dart agreed Mr Wakefield did communicate with everyone in the office that they had to do a test, but he had not been told directly. He felt like he was being singled out and treated unfairly and claimed other staff had left the depot when ‘seeing the tester on site’. Mr Dart questioned why he was allowed to continue working. Mr Saw explained that this was because his direct manager could not be contacted. Mr Saw said Mr Dart became visibly agitated and when his support person said to take a break, Mr Dart replied ‘no, they’ve made up their mind’. Mr Saw called Mr Drew after Mr Dart and his support person left and asked him to come to the meeting room. Mr Drew told him that when Mr Wakefield came back into the office, he told everyone in the room that Mr Dart and Mr Van Anen were the only ones in the office on the list for testing. When Mr Dart returned after organising the pool vehicle, Mr Drew told him he was required to take the test as he was on the list. Mr Dart told Mr Drew ‘I have an appointment, I’ve got to go’.
[27] Mr Saw said that on 18 April 2019, he received a formal complaint from Mr Dart of alleged victimisation and discrimination by Mr Moore and two statements about his version of events. Mr Saw spoke to Mr Dart on 1 May 2019 and told him that Mr Drew had advised that when he told him he was required to attend the test before leaving the depot, he responded with ‘I just took it as a joke’. Mr Saw told him he had reviewed the complaint against Mr Moore and determined there had been no differential treatment of him by Mr Moore and the complaint was not going to progress any further.
[28] Mr Saw said he was advised on 6 May 2019, that the Union had lodged a dispute regarding the warning issued to Mr Dart. As a result, further action in respect to the Management Plan would be postponed until the dispute was resolved. A Tier 1 meeting under the DSP was held on 14 June 2019, but the dispute was not resolved. He was advised that the matter would be taken further.
Reply statement of Mr Saw
[29] Mr Saw agreed he did not read, word for word, Mr Dart’s 9-page document in the meeting on 16 April 2019. However, its contents were already known to him or had been discussed. Mr Saw did not consider it was appropriate to respond to Mr Van Anen’s opinion that the testing at Coffs Harbour was unclear and he raised a hypothetical situation which was not appropriate to respond to.
[30] In response to Mr Dart’s statement, Mr Saw noted that Mr Dart agreed he heard Mr Wakefield, say that everyone was required to do a test that morning. It was incumbent on him to participate in the testing program, unless it was communicated he was no longer required. He also recounted a conversation Mr Drew had with Mr Dart when he said ‘I told you that morning that you were required for a test’. The fact Mr Dart replied ‘oh shit, I had forgotten about that’, does not provide any mitigation for the requirement to undertake the test.
Ms Tane Power
[31] Ms Power has been a HR Business Partner for 11 years. Ms Power referred to her involvement in this matter commencing on 9 April 2019 and her contacts with various managers in the subsequent few days.
[32] Ms Power was involved in the Zoom meeting with Mr Saw, Mr Mercer (Manager, Network Design) and Mr Sprenkeler on 12 April 2019, in which they considered the Alcohol and Other Drugs Policy, Essential’s Fair and Just Policy and the Code of Conduct. They formed the view that there were no substantial mitigating factors in relation to Mr Dart’s failure to remain at the depot and undertake a random drug and alcohol test on 9 April 2019. This constituted a breach of Cl 6.5 of the Policy; see: [5] above. It was recommended Mr Dart be issued a formal warning letter and a Management Plan be put in place. This was issued to Mr Dart in a meeting on 16 April 2019.
[33] On 2 May 2019, the Union advised of a dispute in relation to the warning, and after seeking further information, the Union emailed on 10 May 2019, that ‘Essential Energy has not complied with its own policy and the outcome is not fair’. On 14 June 2019, a Tier 1 DSP meeting was held with Mr Magann, Union Organiser, Mr Dart, Mr Mercer, Mr Saw and herself.
[34] After this, there was an exchange of various emails between the parties in attempts to resolve the matter. The dispute was escalated to Tier 2 and a meeting was held on 2 October 2019, involving Mr David Salisbury, Mr Mercer and Mr John O’Neill, Employee Relations Operations Manager. Ms Power took no further part in the dispute from this point. The outcome of the Tier 2 meeting was recorded in an email from Mr O’Neill which concluded as follows:
‘At this meeting Ian you were provided with the opportunity to confirm what you were seeking to resolve the grievance which was “total exoneration and retraction of the Warning letter” or words to that effect. Both yourself and Steve Magann were provided the opportunity to further provide information and or any additional mitigating factors to support what you seek to resolve the matter for Essential Energy’s consideration.
Following an adjournment in the meeting during which time Essential Energy gave consideration to those matters you raised and all other relevant material in relation to this matter, Essential Energy maintains that your actions and behaviours in respect to the Random Drug and Alcohol testing undertaken at Coffs Harbour on Tuesday 9 April 2019 constitute a breach of clause 6.5 of CECM1000.54 Alcohol & Other Drugs and on that basis the Warning letter remains in place however you will not be required to participate in a Health Management Plan as previously advised to you.
Following the completion of the Tier 2 Grievance meeting Essential Energy now considers this matter closed.’
Reply statement of Ms Power
[35] Ms Power disputed Mr Dart’s claim that ‘no one came and spoke to me’. His own evidence is to the contrary where he states ‘Joel said everyone is on the list, except for Stephen Borchart’ and when asked by Ms Cameron, he replied ‘Joel had come in and said everyone was on the list’. He was also told by Mr Drew he was required to do the test and he made the choice to leave the depot and travel to site. This was inconsistent with the Code of Conduct which states that employees are responsible for their own actions and conduct and are required to comply with Essential’s policies and procedures.
[36] In a supplementary statement, Mr Dart said that when Mr Wakefield returned to the office a second time, he did not directly tell him he was on the list and he did not call him while he was in the depot or after he left.
[37] Mr Dart relied on the following extract from the Fair and Just Culture Policy:
‘Sometimes the behaviour is the product of simple human error - even good people make mistakes:
• We do not blame people for simple human error.
• Rather we treat it as an opportunity to learn and to improve.
• response may include some coaching or a new tool or process to help minimise the potential for future error.
Sometimes the behaviour is the product of cultural norms or poor systems – some people simply don’t understand the implications or potential consequences of their (at risk) behaviour:
• •These are also opportunities to learn.
• There may be some disciplinary response depending on the behaviour, but more likely the response will be focused more on coaching the individual and/or broader team and/or modification of systems.’
[38] Mr Dart said that he had forgotten that Mr Drew had told him he was required for a test that morning. However, he thought it was a joke. Mr Drew was not his supervisor and was not responsible for the testing. At not time had Ms Cameron told him he was required to return to the depot.
[39] Mr Dart set out a number of conflicting comments made by those who Mr Sprenkeler interviewed. At no stage had Mr Wakefield said ‘no one is to leave the depot’. He only heard him yelling ‘the Drug testers are in’. By Mr Wakefield having to ask the tester for clarification confirms he did not know the process for implementing the testing procedure.
Oral evidence
Mr Dart
[40] In reply to Mr Wakefield’s statement in which he said that he was one metre away from Mr Dart when he first entered the Design Room, Mr Dart said that this was wrong. He was six metres away.
[41] In cross examination, Mr Dart was asked about his role and the work he performs. He agreed that in his role he is required to work in accordance with a variety of policies and procedures, including the Drug and Alcohol Policy. Mr Dart did not consider Essential’s highest priority was safety and sometimes where a cost is involved, safety risks are not so important. He accepted, nevertheless, that the Policy is a safety procedure.
[42] As to when Mr Wakefield said ‘the testers are in’, it might have been someone else because he is hard of hearing and the radio was playing. He said that even though Mr Wakefield said everyone was on the list, he did not know if his name was on the list, because he did not see the list. He claimed he was never told not to leave the depot. Even so, he had stayed at the depot for another half an hour.
[43] Mr Dart agreed that when he returned to the Design Room after driving the work vehicle to the front, Mr Drew told him he was on the list (see: PN123), but he took it as a joke and did not think anything of it. He was not sure if Mr Drew was a senior employee. He said he expected Mr Wakefield to come and tell him, not Mr Drew. He agreed he left anyway, and the job was not urgent and could have been rescheduled. Ms Cameron called him about 60 minutes later. He could not recall at that time if Mr Drew had told him that he was on the list, but he told her ‘No one came to see me or told me’. Mr Dart stated that nowhere in the Policy does it say that he had to stay in the depot and there was no direction to do so either.
[44] Mr Dart acknowledged that at no time on 9 April 2019, did he seek clarification from anyone about what was uncertain about the Policy. Mr Dart claimed Mr Cameron had called him on previous occasions about the same thing and he had returned to the depot and no issue was taken; however, he could not recall the detail.
[45] Mr Dart agreed that when Mr Saw rang him, it was to get his version of events. He had prepared a detailed submission for the meeting on 16 April 2019. Both Mr Saw and Mr Sprenkeler just flicked through it. Mr Dart was asked about his comments in that submission Looking back now, Mr Dart accepted he could have done more, and he had learnt from his mistakes:
‘I think I gave sort of recommendations as to what I could have done in my statement in the sense that, you know, I probably could've checked prior to sort of leaving because, you know, Joel was getting clarification, but, again, Joel never sort of rang me, so, you know, that's probably where I've sort of made the mistake. And, again, in hindsight, you know, I probably should've made sure, but it was so vague that everyone was on the list, and Joel never made any contact with me prior to leaving the depot, and it had been quite a while. Yes, you know, he's got a mobile phone, and he's got my phone number, so at no point did he ring me.’
He claimed again that he thought Mr Drew’s telling him he was on the list was a joke.
[46] Mr Dart believed his complaint against Mr Moore was valid because Mr Moore had not stood him down in accordance with the Policy and this was unfair. Mr Dart confirmed that it has been 18 months since he first raised this dispute, but he had never given up on this issue which is why he is here now.
[47] In re-examination, Mr Dart described what he could have done better in hindsight; see: [45] above.
[48] In oral evidence, Mr Van Anen described some of the issues he had with the testing process of office staff at Coffs Harbour. It appeared that if a person chosen for random drug testing was not at the depot, another person was selected off the list. For office staff, this was his experience and it seemed inconsistent with the process. As to 9 April 2019, Mr Van Anen recalled Mr Wakefield coming into the office, but he heard from someone else that everyone was to be tested. He did not hear Mr Wakefield direct employees not to leave the depot.
[49] In cross examination, Mr Van Anen confirmed that his office is next to Mr Dart’s and that he reports to Mr Drew as Program Manager, as do another four reports. Mr Drew is a senior employee. Mr Van Anen confirmed he had queried Mr Wakefield about the whole office being tested and he undertook to clarify who was on the list. He accepted that at this point, everyone was required until further notice. He conceded that if it was him, he would not have left the depot.
[50] Mr Van Anen accepted that in the circumstances he described above, if a person had left the site or was on leave and had acknowledged testing was occurring that was not an issue. He knew of someone who was aware testing was to be done, but left work and gone home sick.
[51] Mr Van Anen had little discussion with Mr Dart that morning because he left the depot. Mr Van Anen said that when Mr Wakefield came back a second time and told people were on the list (including him), Mr Dart obviously was not present. He heard Mr Wakefield tell Mr Drew to tell Mr Dart if he returned he was also on the list. He accepted Mr Drew had authority to do so. Mr Van Anen said he saw Mr Dart return, but could not hear what was said because he had headphones on. Mr Dart said nothing further to him.
[52] Mr Van Anen was present when Ms Cameron spoke to Mr Dart and he only heard him say he was on the way to Dorrigo. He accepted Ms Cameron’s involvement in assisting the testing was ‘quite common’, as to who was in and who was out.
[53] As to the 16 April 2019 meeting, Mr Van Anen said that Mr Saw and Mr Sprenkeler did read Mr Dart’s submission, but not to the fullest. He said that Mr Dart had said that everything he wanted to say was in his statement.
[54] In oral evidence, Mr Wakefield was delegated to perform Mr Steven Moore’s role on the morning of 9 April 2019. Mr Wakefield was shown the updated Policy and he agreed it applies to Managers and Supervisors who are to be provided comprehensive education and training on the implementation of the Policy. Mr Wakefield conceded he had not received training on the management of random drug and alcohol tests at the depot. However, everyone was aware, through the toolbox meetings, of what the expectations are and he had received introductory training on the Policy. Mr Wakefield did not know if Mr Moore had received any training on the Policy.
[55] Mr Wakefield agreed that this was the first occasion he was responsible for managing the Policy at the depot. When he says ‘managing’, he rounds up people who are randomly selected and makes announcements at the depot.
[56] Mr Wakefield accepted that when he made the announcement in the Design Room, he was challenged. He agreed to seek further clarification, but not immediately as he had to make sure all employees knew not to leave the depot. He established that not everyone was to be tested – a number had been randomly selected which he then went to inform. Mr Wakefield said the only thing that was partially incorrect was that everyone was to be tested.
[57] Mr Wakefield went to tell the individuals they were on the list if he could find them. When he went to look for Mr Dart, he was not in the Design Room, so he asked Mr Drew, if he returned to the office to tell him it was required to be tested. Mr Wakefield said it was not practical to check the phone list of employees to ring each individual and he did not ask Mr Drew to ring Mr Dart. Mr Wakefield believed it was appropriate to delegate the task to Mr Drew as he was an experienced senior employee. He did not check if Mr Drew had done so. Ms Cameron had told him Mr Dart had not presented for the test. Mr Wakefield was not sure if Ms Cameron had phoned Mr Dart, who did not report to Ms Cameron and had no authority to direct him to do anything. Mr Wakefield said he did not call Mr Dart after he learnt he had left the depot, because Ms Cameron had already done so.
[58] Mr Wakefield was taken to the notes of the meeting he had with Mr Moore who was investigating the matter two days after the incident. He could not see where it is said he advised employees not to leave the depot or had told Mr Dart not to. In re-examination, Mr Wakefield said that he had not seen these notes before and had not been given them at the time to check on their accuracy.
[59] In cross examination, Mr Saw agreed he is responsible for correctly applying Company procedures and policies, so far he is able to do so with a dispersed workforce across 95% of NSW, which is not always directly supervised. At the time, Mr Sprenkeler reported to him, but not Mr Moore. Mr Reedy is at his level as Operational Manager North Coast, whereas he is in the design area. Mr Moore reports directly to Mr Reedy.
[60] Mr Saw said he instructed Mr Sprenkeler to conduct interviews with various people the day after the incident, while it was still fresh in their minds. This commenced the investigation process. He understood that because Mr Sprenkeler worked out of the Tweed Heads office, he conducted the interviews by phone (from Coffs Harbour). Mr Sprenkeler took notes and they discussed them later. Mr Saw said he decided to speak to Mr Dart himself. As the more senior person, he wanted to find out directly from Mr Dart as to his version of events. He did not ask Mr Dart for a formal statement, although Mr Dart did so later on. He then met with Mr Sprenkeler and Ms Power on 12 April 2019, to discuss the matter in light of Essential’s policies and procedures. Mr Saw understood that all employees and managers were trained on the Alcohol and Other Drugs Policy.
[61] Mr Saw also considered the Fair and Just Culture Policy and the Decision Support Tool at Annexure B. He said that of the three behaviours identified Simple Error, At Risk, and Reckless Behaviour, it was considered that the third category applied. This was because Mr Dart left the depot when he knew he had to present for a test, as his name was on the list. This undermined the entire premise of the Policy (Annexed to this decision is the full text of the Decision Support Tool).
[62] Mr Saw said the outcome of the meeting was to recommend to Mr Salisbury a formal warning be issued to Mr Dart. Mr Saw met with Mr Dart and Mr Van Anen on 16 April 2019. He agreed he had a copy of the formal warning letter before the meeting, but this did not mean the decision had already been made. Mr Saw said that if at any point in the process there was anything which made him believe the warning was unnecessary, he would have acted on it. However, nothing further arose in discussion or Mr Dart’s submission to cause him to reconsider the decision.
[63] Mr Saw agreed that neither he, nor Mr Sprenkeler had interviewed any of the other eight or so employees in the Design Room about what had been communicated that day. He believed he had sufficient information from Mr Dart himself and Mr Wakefield, to establish what Mr Wakefield had said to everyone that morning – that everyone was required for a test.
[64] Mr Saw acknowledged that it later emerged this communication was a mistake. However, Mr Dart was the only one who had decided to leave the depot. Whether it was a mistake or not was irrelevant, because Mr Dart would have known he might be on the list, which he was, but he had gone. In fact, two other people later told him he was on the list, one directly. Mr Saw considered that an incorrect direction which Mr Wakefield believed was correct, was still a direction until it was clarified.
[65] Mr Saw was taken to Mr Dart’s supplementary statement in which he says:
‘Joel did not direct everyone to go and have a test … I did not have any doubts, as Mr Wakefield had not directed me to stay or participate in a D and A test … As a good employee, I could have done something better in hindsight and should have clarified.’
[66] Mr Saw queried how Mr Dart would know there was a mistake, if he left the depot without finding out. In any event, Mr Saw believed it was still possible, although it had not happened before, that a whole depot could be tested.
[67] Mr Saw stated he had been trained in the Policy, but he was unaware of how the Policy was applied at Coffs Harbour. He could not say whether the training was different for employees and managers as it was an old Policy (12 years) which had now been reviewed and replaced. He did not know if Mr Moore or Mr Wakefield had been trained and did not inquire if they had.
[68] Mr Saw was asked about the following note from Ms Cameron’s interview with Mr Dart:
‘At 9.05 Sue called Ian Dart on his mobile. Then 9.20 she got through to Ian. And Sue advised Ian that he was required at the depot for D and A testing, and where was he. Ian replied, stating he was in Dorrigo on a pre-planned site meeting and would not be back until the afternoon.’
This was later clarified to:
‘This statement isn't quite correct. Sue did call him, but as far as I'm aware she didn't ask or direct Ian to do anything. She rang him to tell him he was on the list to do a test.’
[69] Mr Saw believed Ms Cameron did not say ‘Now you need to come back and do it (the test)’. When asked why Mr Dart was not directed to return to the depot, as this was a serious matter, he did not know why. Mr Saw believed he should have been stood down at the time, but with a dispersed workforce and with his direct line manager uncontactable, it did not happen. Mr Saw conceded the decision could have been escalated, but he was not aware of the incident until Wednesday 10 April 2019.
[70] Mr Saw accepted that Cl 6.2 of the Policy requires immediate stand down or suitable duties until such time as a negative test or medical clearance is obtained. Mr Saw agreed that this should have happened. He had explained why it did not occur. There may have been some confusion, as it was a very unusual situation of a person walking out, after being told to take a test (which was considered the same as expressly refusing a test). Mr Saw emphasised that the situation could have been handled better, but that does not mitigate Mr Dart’s response to not present for a test when told to. This was a breach of the Policy.
[71] Mr Saw said he had not made inquiries at other depots about how they apply the random drug and alcohol tests, or whether other managers had been trained. Mr Saw insisted that Mr Dart received the formal warning for not presenting for a test when he knew he was required to, despite the surrounding circumstances that were less than ideal. By deliberately avoiding the test, his conduct was reckless. Mr Saw did not accept that a mistaken direction was not a lawful direction. It did not excuse Mr Dart’s behaviour or him blaming everybody else.
[72] As to the Decision Support Tool, Mr Saw knew exactly what was required of him and there was no misunderstanding of what was expected. Although the direction later turned out to be a mistake, he had left the depot without knowing it was a mistake or seeking clarification. He was even told he needed to take a test and his response was ‘I’ve got an appointment. I’ve got to go’. This was reckless behaviour. Mr Drew directly told Mr Saw of this conversation. Mr Dart had told Mr Drew he thought it was a joke. Mr Saw did not believe there was anything funny about this mater. It was a serious discussion between Mr Dart and Mr Drew.
[73] Mr Saw claimed that Mr Dart had clear instruction, but he conceded there had been no issues with Mr Dart’s performance and this was the first time this kind of mistake had occurred within the manager’s team. Mr Saw relied on the following extracts of the Decision Support Tool under reckless behaviour:
‘Did the employee deliberately and consciously depart from known and established rules to make it easier for themselves?’
and
‘Did the employee deliberately depart from known and established rules and procedures, knowing there was a high likelihood it may cause harm to the company, a person, or the property?’
Mr Saw emphasised the departure from known rules was not the mistaken communication, but Mr Dart’s leaving the depot knowing full well he was required to take the test.
[74] In re-examination, Mr Saw confirmed that nowhere in the Policy does it refer to the number of employees who are randomly tested. It states the testing ‘Shall be undertaken without warning to a group of workers and others, and shall involve taking of oral fluid.’. It is not prescriptive.
[75] In oral evidence, Ms Power, confirmed she provided support to the management team from the HR perspective. She participated in various meetings, but was not the decision maker. A recommendation was made to Mr Salisbury and Ms Eloise Heaton prepared the warning letter at her request.
[76] Ms Power was asked about Cl 6.2 of the Policy which treats the non-participation in the test the same as a positive result for disciplinary purposes. Mr Dart had been directed to attend for a test, but he left the depot, without doing so. She had understood there were three directions from Mr Wakefield, Mr Drew and Ms Cameron, all of whom had advised him that he needed to be tested that day. Ms Power was asked about the details of the evidence in respect to each of these directions by reference to the evidence of others. Ms Power was aware of the process. She understood it was common practice (although not stated in the Policy), that when the testers come on site, everyone is required to stay on site until instructed as to whether a person is required to be tested or not. However, she could not say if this practice applied at every depot, or applied at Coffs Harbour.
[77] Ms Power said that everyone is responsible for implementing and adhering to the Policy, and are trained on its objectives and processes. She could not recall if there were differences between the training for managers and employees. It was a common understanding that each Manager on site is the person responsible for implementing the Policy. This is variable as to who the most senior person is available at the time. She has seen how the Policy operates by her visits to different Depots.
[78] Ms Power said it was not common practice for everyone in the depot to be tested. Usually, a random selection is made through an app. Ms Power accepted that Mr Wakefield had been delegated to ensure the Policy was applied at the depot, as it is consistently applied across Essential. She did not know and made no inquiries, if Mr Wakefield had been properly trained. Her understanding was that Mr Wakefield told everyone in the Design Room was required to be tested, and he was queried about this. Mr Dart went about his tasks, came back to the office, then left the depot at his own free will. Ms Power acknowledged that Mr Wakefield did not specifically direct Mr Dart not to leave the depot, but it was well known what Mr Wakefield’s direction meant. Ms Cameron also spoke to Mr Dart in Dorrigo and advised him his name was on the list, and when she asked if he was returning, he said no.
[79] Ms Power did not recommend that anyone else in the Design Room should be interviewed because Mr Saw spoke to Mr Dart to obtain his version of events. They did not want to ‘overbake’ the situation and it had some urgency.
[80] In re-examination, Ms Power said that when Mr Salisbury was presented with the recommendation, he had ‘wanted to go harder’ and he was very insistent on the Management Plan as being part of the outcome. Ultimately, this was not proceeded with.
[81] Ms Power explained that at each site, there are multiple Managers at different levels with different management strengths. Given the random nature of the testing, it is not always possible that the most senior person is on site.
CONSIDERATION
[82] Both parties provided written and oral submissions which largely reflect the evidence of the witnesses and dealt with Mr Dart’s explanation for his actions on 9 April 2019. I have taken the submissions into account. I have also had regard to Mr Jacka’s reliance on my decision in Peto v Ausgrid Management Pty Ltd t/a Ausgrid[2019] FWC 6691.
[83] Regrettably, I did not find Mr Dart to be a credible witness. He ultimately acknowledged that on at least three occasions, he was told by Mr Wakefield that everyone was on the testing list, was told directly by Mr Drew he was on the list and Ms Cameron had told him he was on the list. Mr Dart’s explanations for these concessions were ridiculous and implausible.
[84] When he conceded Mr Wakefield had said ‘Everyone is on the list except Stephen Borchart’, Mr Dart claimed that this did not apply to him because he had not seen the list and had not been expressly told he was on the list. It is absurd that one would interpret the word ‘everyone’, with one exception, somehow excluded him. It is utterly irrelevant that the communication was later found to be wrong. No one, least of all Mr Dart, would have known it was incorrect, until it was clarified. It is telling that Mr Dart made no independent inquiries with anyone about him being on the list in the half hour before he left, or at any time that day.
[85] Mr Dart’s attempts to focus on Mr Wakefield’s mistake, his lack of authority and it was not him who should have clarified the position, are little more than ‘red herrings’ in order to discredit Mr Wakefield, and by implication, his own compliance with the Policy. Mr Wakefield is not the subject of this dispute and his actions in no way, mitigate in favour of Mr Dart’s own deliberate and wilful refusal to comply with what everyone knew was the expectation, that until the random test list is known, no one can leave the depot.
[86] Moreover, Mr Dart’s submission that the Policy makes no reference to being required to remain on site when testers arrive, is nonsense. It does not need spelling out. It is just plain common sense. Mr Van Anen agreed he would not have left in these circumstances. Otherwise, if someone suspects they might fail the test, they could simply pack up and leave the site or feign illness and leave. This would completely undermine the purpose of random, unannounced drug and alcohol testing in the workplace.
[87] By contrast, I found Mr Wakefield to be a folksy, down to earth and believable witness, whose evidence was entirely explicable in all of the circumstances. He was thrust into authority for implementing the process that day, and had never done so before. He sought clarification when he was challenged. Whatever his mistakes that day, they do not detract from Mr Dart’s own deliberate conduct. I also accept Mr Saw’s candid evidence that the circumstances that day could have been handled better by Management. Again, that has nothing to do with Mr Dart’s conduct. It is also extraordinary that Mr Dart claimed the Policy was breached because he was not stood down. It is bizarre that a breach of policy, arguably one in his favour, is criticised by him. I also find Mr Dart’s filing of a victimisation grievance against Mr Moore for not standing him down in ‘breach’ of the Policy, was little more than a further diversionary tactic to avoid his own culpability for his actions in order to seek a different outcome.
[88] In any event, by its very nature, unannounced and random testing will not always result in precision and correct communications in dispersed, busy work locations, where people in authority and with requisite understanding are not available and the most senior employee has to do the best they can. Moreover, there is no substance to the criticism of Management for not interviewing others in the Design Room. Mr Saw spoke directly to Mr Dart. Mr Sprenkeler had interviewed other relevant persons. There is no requirement of the employer to interview everyone involved in an incident, if there has been sufficient information and statements to make a sound and reasonable conclusion. In my view, this is what happened here and I accept Mr Saw’s evidence that he had sufficient information to assess the circumstances and make an appropriate recommendation.
[89] Secondly, Mr Dart conceded Mr Drew had told him that he was on the list when he returned from packing the pool vehicle. It is curious this is not found in his first statement and no doubt, when it became apparent, prompted his ridiculous claim that he thought Mr Drew’s communication was a joke. If this was the best Mr Drew could come up with, it is, in my view, a pure invention. To ask the rhetorical question what’s so funny about being told by a senior employee that you are on a random drug and alcohol list. Mr Dart conceded this was not a joking matter. I reject his explanation and accept Mr Wakefield’s evidence that when Mr Drew told Mr Dart he was on the list, he replied ‘I’ve got an appointment, I have to go’.
[90] Thirdly, it was irrelevant that Ms Cameron did not direct Mr Dart to return to the depot. Putting aside she had no authority to do so, this is not the point. Ms Cameron acted entirely reasonably by contacting Mr Dart to tell him his name was on this list. Nothing could be clearer and his actions of not immediately returning, was indicative of his disregard for his obligations under the Policy. There can be no criticism of Ms Cameron.
[91] I found Mr Van Anen to be a witness of credit, whose evidence was largely unhelpful to Mr Dart’s case because he was open and candid. His evidence was considered and believable.
[92] Lastly, I accept Mr Dart has consistently maintained the warning was not appropriate and he has disputed it for some time. I also accept that the applicant has a genuine sense of grievance and the warning has affected his personal life. However, there was no medical evidence that this dispute has affected him so badly that medical advice has been sought, or that he has been prescribed medication for stress or any other associated condition. My advice is for him to move on, accept this as a hard learnt lesson and keep his ‘nose clean’ until the warning expires.
[93] Contrary to Mr Dart’s submissions, I find that he wilfully and deliberately left the depot after being made aware he was on the random list for testing. It was reckless conduct which might well have resulted in a more severe penalty. I specifically find that:
(1) Mr Dart refused to participate in the test in breach of Cl 6.2 of the Policy.
(2) Essential had not failed to apply the Policy correctly, although its execution on the day could have been better. Essential’s explanations are understandable and explicable and do not detract from the seriousness of Mr Dart’s conduct; let alone result in the finding that he had breached the Policy, should be overturned.
(3) A final warning was reasonable, appropriate and in accordance with Essential’s Fair and Just Culture Policy.
[94] Accordingly, I decline to interfere in the decision to issue Mr Dart with a formal warning which, in any event, will expire in 18 months’ time. The dispute is resolved and the proceeding concluded.
DEPUTY PRESIDENT
Appearances:
Mr A Jacka appeared for the applicants.
Mr J O’Neill with Mr J Wakefield and Ms T Power appeared for Essential
Hearing details:
2020.
Sydney:
4 November
5 November
Printed by authority of the Commonwealth Government Printer
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Annexure ‘A’
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