Craig Hancock v DP World Brisbane Pty Ltd - [2022] FWCFB 142

[2022] FWCFB 142

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.604—Appeal of decision

Craig Hancock

DP World Brisbane Pty Ltd

(C2022/3596)

VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT BINET
commissioner williams

SYDNEY, 2 SEPTEMBER 2022

Appeal against decision [2022] FWC 1406 of Commissioner Spencer at Brisbane on 3 June 2022 in matter number – permission to appeal refused.

Background

Mr Craig Hancock (Mr Hancock) has lodged an appeal pursuant to s.604 of the Fair Work Act 2009 (Cth) (the Act) for which permission to appeal is required. The appeal is brought with respect to a decision[1] (Decision) of Commissioner Spencer (Commissioner) issued on 3 June 2022.

Mr Hancock alleged that he was unfairly dismissed from his employment with DP World Brisbane Pty Ltd (DP World). Mr Hancock was summarily dismissed by DP World after returning a positive result to a random drug test. In the Decision, the Commissioner concluded that Mr Hancock’s dismissal was not unfair.

This matter was listed for permission to appeal only and directions were set for the filing of material by the Appellant. As this matter was listed for permission to appeal only, the Respondent was not required to file any material. The Respondent filed submissions to be legally represented at the hearing and a Form F53. Both parties later indicated that they consented to the appeal being determined on the papers without the need for oral submissions at a formal hearing. Accordingly, pursuant to s.607(1) of the Act, the appeal was conducted on the basis of written submissions only.

For the reasons that follow, permission to appeal is refused and the appeal is dismissed.

Decision under appeal

Mr Hancock commenced employment with the DP World on 19 August 1996. At the time of his dismissal, he was engaged as a stevedore to undertake work at the Port of Brisbane where DP World operates a container terminal (Port).

On 11 August 2021, after working 7 hours of his rostered shift, Mr Hancock was randomly selected for a drug and alcohol test, in accordance with DP World’s Alcohol and Other Drugs Policy (AOD Policy). Mr Hancock received a non-negative result for “11-nor-d-9-thc-9-carboxylic acid” more commonly known as THC. THC is a compound formed in the body after the consumption of cannabis. Mr Hancock was stood down pending the outcome of confirmatory testing. The outcome of the confirmatory test confirmed the initial positive test.

On 17 August 2021, Mr Hancock was invited by way of letter (Show Cause Letter) to attend a ‘show cause’ meeting on 20 August 2021 (Show Cause Meeting). At the Show Cause Meeting, Mr Hancock was advised that DP World considered him to have engaged in serious misconduct and was considering terminating his employment. At the conclusion of the Show Cause Meeting, DP World informed Mr Hancock that it had decided to terminate his employment for serious misconduct with immediate effect. DP World confirmed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] FWCFB 142
Decision Date: 2 SEPTEMBER 2022

CaseChat Overview and Summary

Craig Hancock has appealed against the decision of Commissioner Spencer, who found that his dismissal by DP World Brisbane Pty Ltd was not unfair. Mr Hancock was dismissed after returning a positive result to a random drug test. The appeal was brought pursuant to s.604 of the Fair Work Act 2009. The appeal was heard by Vice President Catanzariti and Deputy President Binet with Commissioner Williams. The appeal was determined on the basis of written submissions only. The appeal was refused and dismissed. The court found that the Commissioner did not err in her assessment of whether there was a valid reason for dismissal, whether Mr Hancock was notified of the reasons for his dismissal and given an opportunity to respond to those reasons, or in her approach to assessing harshness. The Commissioner’s findings and conclusions were open to her and no injustice or counter-intuitive result was manifest. The appeal did not demonstrate appealable error and it was not in the public interest to grant permission to appeal.

Orders