Craig Hancock v DP World Brisbane Pty Ltd
[2022] FWCFB 142
•2 SEPTEMBER 2022
| [2022] FWCFB 142 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Craig Hancock
v
DP World Brisbane Pty Ltd
(C2022/3596)
| VICE PRESIDENT CATANZARITI | 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 this in writing in a letter dated 24 August 2021 (Termination Letter).
The Decision provides a detailed summary of the evidence and submissions of both parties.[2]
Mr Hancock submitted that DP World did not have a valid reason for his dismissal and had denied him procedural fairness by failing to genuinely consider his responses to the allegations or take into account his 25 years of ‘exemplary’ service. Mr Hancock also contended that the dismissal was harsh because termination was disproportionate to the gravity of the alleged misconduct, and also because of the personal and economic strain that the dismissal has had on him. Mr Hancock submitted that in the circumstances the only proper remedy was re-employment, with orders for continuity of employment and restoration of lost pay.[3]
Mr Hancock explained that he had struggled with his mental health during the COVID-19 Pandemic and had purchased a quantity of cannabis from a friend to assist him to relax.[4] Mr Hancock gave evidence that he had consumed some cannabis every evening for 16 days, including the evening before he was rostered to work on 11 August 2021.[5]
Mr Hancock conceded that he was aware of bulletins about updated work policies including the AOD Policy but asserted that he had never received training in relation to the policy and was unaware that a breach of the AOD Policy would likely result in the termination of his employment.[6] Mr Hancock conceded that the AOD policy was lawful but says that it is unreasonable because: [7]
a)it does not inform employees what conduct they must avoid to ensure they did not breach its terms;
b)it focuses of arbitrary testing levels rather than fitness for work;
c)fails to make clear that any breach of the policy is likely to result in termination of employment.[8]
Mr Hancock denied that his work performance was impaired as a consequence of his consumption of cannabis. He says this is consistent with DP World’s own expert evidence about the effects of cannabis.[9] Mr Hancock says in any event his role was not safety critical asserting that safety controls were in place.[10] He also asserted that the test result was unreliable because the chain of custody requirements had not been met.[11]
Mr Aaron Johnson gave evidence in support of Mr Hancock. Mr Johnson is a union official and previously a workplace delegate. Mr Johnson assisted Mr Hancock during the show cause process. Mr Johnson gave evidence that he was of aware of cases of other employees returning a positive drug test result and not being dismissed.[12] Mr Hancock also relied on the expert evidence of Dr Michael Robertson.
Mr Benjamin Hanley the Port Manager gave evidence on behalf of DP World. DP World relied on the evidence of Dr Williams in relation to the testing process and the degree of impairment likely based on test results.[13]
DP World submitted that Mr Hancock’s breach of the AOD Policy formed a valid reason for his dismissal and that the AOD Policy was reasonable and lawful. DP World insist that Mr Hancock’s duties in his allocated role were safety critical and also point out that he could have been allocated to a role which was even more safety critical.[14] DP World say that the AOD Policy clearly put Mr Hancock on notice that termination of employment was a potential outcome of a breach of the policy.[15]
DP World dispute that Mr Hancock was not impaired. DP World point out that in any event Mr Hancock was dismissed for breaching the AOD Policy not for being impaired.[16] DP World submit that Mr Hancock’s conduct was correctly characterised as serious misconduct given the levels of THC in his sample and consistent with other decisions of the Commission which found that the presence of THC in breach of an employer drug and alcohol policy to constitute serious misconduct.[17] DP World insist that disciplinary outcome for Mr Hancock was reasonable given the factual circumstances of the other cases.[18]
The Commissioner then considered the factors in s.387(a)-(h) of the Act to determine whether the dismissal was harsh unjust or unreasonable.
Valid reason for dismissal related to capacity or conduct – s.387(a)
In relation to valid reason the Commissioner pointed out that Mr Hancock had conceded that he had consumed some cannabis every evening for 16 days, including the evening before he was rostered to work on 11 August 2021.[19] She noted Dr William’s evidence that Mr Hancock returned a high level reading in the order of 37 times the cut off dictated by the Australian Standard.[20]
The Commissioner found that Mr Hancock’s role was safety critical. She also noted that he had conceded that he could be allocated to a role which was safety critical. [21]
The Commission noted Mr Hancock’s evidence that he had seen the Employee Handbook, was aware of where to find a copy and that the Employee Handbook made clear that termination of his employment was a potential consequence of attending for work with a drug in his system.[22]
The Commissioner also noted that Mr Hancock was aware of the AOD Policy which relevantly states that:[23]
A.Employees must not attend for work with an alcohol or other drug level that exceeds the limits contained in Appendix B of this Policy;
B.Breaches of this policy are serious and have the ability to put the health and safety of employees and others at significant risk.
C.Disciplinary action will be taken where an employee records a confirmed positive alcohol or other drugs screening test;
D.DP World has discretion to take the appropriate disciplinary action for breaches of this Policy which may include termination of employment.
Further the Commissioner noted that Mr Hancock acknowledged that the policy had been brought to his attention in his capacity as an Employee Representative Committee member when the policy was first introduced in 2017. She also noted that he had been a long term member of the Health and Safety Committee and therefore had a heightened understanding of the importance of it and the health and safety policies to be applied at the workplace.[24]
The Commissioner dismissed Mr Hancock’s assertion that the AOD policy was unreasonable relying on the decision in Sharp v BCS Infrastructure Support Pty Limited (Sharp) which recognised that an analogous policy that provided for disciplinary action in the event of a positive drug test was lawful and reasonable.[25]
The Commissioner pointed out that circumstances of Mr Hancock’s case was analogous to those is Rodney Roach v Pacific National Services Pty Ltd and that applying the same reasoning in Mr Hancock’s circumstances led her to conclude that a valid reason existed for his dismissal.[26]
The Commissioner dismissed Mr Hancock’s challenge to the integrity of the testing process. Noting the evidence of Dr Williams with respect to the chain of custody and that Mr Hancock had openly admitted to consuming cannabis prior to attending work.[27]
Similarly, the Commissioner also dismissed Mr Hancock’s argument that he was disciplined for ‘out of hours conduct’ accepting DP Worlds argument that Mr Hancock was dismissed because of his breach of the AOD Policy not what he did in his own time.[28]
Notification of valid reason – s.387(b)
The Commissioner found that Mr Hancock was notified of the reasons for his dismissal in the Show Cause Letter, the Show Cause Meeting and in the Termination letter. Consequently, she decided to treat this factor as neutral.[29]
Opportunity to respond to any reason related to his capacity or conduct – s.387(c)
The Commissioner was satisfied that Mr Hancock was given an opportunity to respond to the reasons for his dismissal during the Show Cause Meeting. She rejected Mr Hancock’s argument that the outcome of the Show Cause Meeting was predetermined favouring the evidence of DP World’s witness to the contrary.[30]
Unreasonably refuse to allow a support person – s.387(d)
The Commissioner found that the DP World did not unreasonably refuse to allow Mr Hancock a support person and treated this factor as neutral.[31]
Warned about unsatisfactory performance before the dismissal – s.387(e)
The Commissioner accepted that the reasons for dismissal related to conduct and not performance and therefore a disciplinary process of warnings was not relevant. She therefore treated this as a neutral factor.[32]
To what degree would the size of the enterprise and degree of human resource expertise be
likely to impact on the procedures followed in effecting the dismissal? – s.387(f) and (g)
The Commissioner noted that DP World is a large employer with experienced internal human resources personnel. The Commissioner found this factor was neutral.[33]
Other relevant matters – s.387(h)
The Commissioner considered the matters identified by the parties as relevant such as Mr Hancock’s length of service, remorse and apology, whether he was treated differentially to other employees, and the proportionality of the disciplinary action taken against him.[34]
Conclusion
The Commissioner then weighed up all the factors in s.387 of the Act and the circumstances of the case to find that Mr Hancock’s dismissal was not unfair.[35]
Grounds of appeal and submissions
Mr Hancock’s grounds of appeal can be summarised as follows:
a.The Commissioner erred in her assessment of whether there was a valid reason for dismissal when considering s.387(a) (Appeal Ground One and Two).
b.The Commissioner erred in her assessment of whether Mr Hancock was notified of the reasons for his dismissal and given an opportunity to respond to those reasons when considering s.387(b) and (c) (Appeal Ground Three).
c.The Commissioner erred by taking into account Mr Hancock’s length of service and record of performance as bearing on s.387(e) and failed to take them into account when considering s.387(h) (Appeal Ground Four).
d.The Commissioner erred in approaching her consideration of other relevant matters pursuant to s.387(h) (Appeal Ground Five, Six and Seven and Eight)).
Mr Hancock submits that the appeal is in the public interest because:
a.The Commissioner took into account length of service and performance under s.387(e) when in fact such matters are required to be weighed under s.387(h) as relevant to harshness.
b.The Commissioner’s approach to assessing harshness is contrary to authority and raises matters of general importance and wider significance concerning the Commission’s jurisdiction under s.387 of the Act.
c.The appeal raises for consideration the correctness of the approach in Parmalat Food Products Pty Ltd v Wililo [2011] FWAFB 1166 which has been questioned by the Full Court in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100] and imposes an impermissible decision-rule.
d.The Commissioner acted inconsistently with the Full Bench in Sydney Trains v Hilder [2020] FWCFB 1373 at [32] and [34] by failing to take into account as factors relevant to harshness that the appellant was not impaired when he attended for work on 11 August 2021 and that he had not intentionally breached the Policy.
e.The appeal raises questions of general significance about the approach of the Commission to assessing harshness in circumstances where employees breach drug and alcohol policies.
f.The Commissioner denied Mr Hancock procedural fairness by failing to consider and engage with substantial components of his case.
Principles on appeal
The Decision subject to appeal was made under Part 3-2- Unfair Dismissal – of the Act. Section 400(1) of the Act provides that permission to appeal must not be granted from a decision made under Part 3-2 unless the Commission considers that it is in the public interest to do so. Further, in unfair dismissal matters, appeals on a question of fact can only be made on the ground that the decision involved a ‘significant error of fact’ (s.400(2)). Section 400 of the Act manifests an intention that the threshold for a grant of permission to appeal is higher in respect of unfair dismissal appeals than the threshold pertaining to appeals generally.
The public interest test in s.400(1) is not satisfied simply by the identification of error or a preference for a different result. In GlaxoSmithKline Australia Pty Ltd v Makin[36] a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“… the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or they result in counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters…”[37]
It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error.[38] However, that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.
Consideration
Appeal Ground One – Valid Reason s.387(a)
Mr Hancock submits that the Commissioner erred in her assessment of whether there was a valid reason for dismissal:[39]
a.by taking into account that:
(i) DP World’s approach was ‘compatible with’ [55]-[57] the approach taken in Roach v Pacific National Services Pty Ltd[2022] FWC 103;
(ii) Mr Hancock had not established ‘differential treatment’
b.by failing to take into account evidence that:
(i) a high reading said nothing about actual impairment;
(ii) Mr Hancock would not likely have been impaired at work on 11 August 2021 having consumed cannabis some 12 hours prior to commencement of his shift;
(iii) Mr Hancock did not exhibit impairment; and
c.by failing to engage with the submission that the AOD Policy was unreasonable.
We have considered the Decision and find no error in the Commissioner’s findings with respect to s.387(a) of the Act.
Mr Hancock was not dismissed because he was impaired by cannabis he was dismissed because he failed to comply with a policy which provided for dismissal as a disciplinary consequence for a positive drug test. It was therefore unnecessary for the Commissioner to take into account evidence in relation to impairment.
The Deputy President specifically considered whether the policy was unreasonable and whether that might invalidate the reasons for dismissal at [169] to [171] of the Decision. In those paragraphs she cited relevant Full Bench authority to support her finding that the AOD Policy was reasonable.
We are of the view that that the Commissioner’s reference to Roach v Pacific National Services Pty Ltd[2022] FWC 103 was appropriate. The point made by the Commissioner is that submissions with respect to the fairness of the disciplinary consequences imposed as a consequence of a breach of drug and alcohol policy are appropriately dealt with under sub paragraphs of s.387 other than sub paragraph (a). The relevant consideration for the purposes of s.387(a) is whether the breach of the AOD Policy was a matter of sufficient gravity to constitute a sound, defensible, well founded and therefore whether it constitutes a valid reason for Appellant’s dismissal.
It is unclear in the context in which it appears what the Commissioner is referring to when she says at [168] of the Decision that differential treatment is not made out. Differential treatment of Mr Hancock as opposed to other employees is a matter appropriately dealt with under s.387(h) and was so by the Commissioner at [196]-[197] of the Decision. Her comments at [168] do not form an integral part of her reasoning in relation to valid reason. The balance of her reasoning supports her finding that a valid reason existed for Mr Hancock’s dismissal independent of those comments.
Appeal Ground 3 – Notice of valid reason and opportunity to respond – s.387(b) and (c)
Mr Hancock submits that the Commissioner erred in her assessment of whether he was given notice of the reasons for his dismissal and an opportunity to respond to those reasons by failing to deal with these matters and instead:
a.wrongly finding that he was aware that smoking cannabis the night before his shift could result in positive test and in the termination of his employment;
b.wrongly taking into consideration that he:
(i)was aware of the respondent’s Drug and Alcohol Policy;
(ii)had attended for work having consumed an unknown amount of cannabis the night before;
(iii)was aware that such conduct could result in dismissal.
We have considered the Decision and find no error in the Commissioner’s findings with respect to s.387(b)-(c) of the Act. The Commissioner’s consideration of section 387(b) and (c) matters is not limited to paragraphs [186] and [187] of the Decision as suggested by Mr Hancock.[40] In fact the Commissioner also deals with these matters at [182] to [185] of the Decision. In those paragraphs the Commissioner records that:
a.Mr Hancock was provided with the Show Cause Letter on 17 August 2021 informing him of the positive drug test result and inviting him to ‘show cause’ why he should not be dismissed.
b.At the Show Cause Meeting on 20 August 2021, he was informed that DP World considered he had engaged in misconduct and were considering terminating his employment.
c.Mr Hancock was given an opportunity during the Show Cause Meeting on 20 August to respond and did so.
d.The reasons for Mr Hancock’s dismissal were confirmed in the Termination Letter.
Relevantly the Commissioner found at [182] of the Decision that Mr Hancock “… conceded that he was fully notified of the reasons for his dismissal, both during the in person meeting on 24 August, and through the termination letter.”
At [185] the Commissioner considered Mr Hancock’s assertion that the outcome of the show cause process was predetermined. The Commissioner accepted the direct evidence of the decision maker to the contrary.
We are satisfied that the Commissioner properly conducted her assessment of whether Mr Hancock was given notice of the reasons for his dismissal and an opportunity to respond to those reasons.
Appeal Ground 4 – Warnings with respect to performance – s.387(e)
Mr Hancock submits that the Commissioner erred by taking into account his length of service and record of performance as bearing on whether s.387(e) was neutral, when such matters were irrelevant because Mr Hancock was not dismissed for unsatisfactory performance. Mr Hancock submits that his length of service and performance record should instead have been considered by the Commissioner under s.387(h) and found to weigh in favour of the dismissal being unfair.
We have considered the Decision and find no error in the Commissioner’s findings with respect to s.387(e) of the Act. It was appropriate for the Commissioner to treat s.387(e) as neutral given that Mr Hancock was not dismissed for reasons pertaining to his performance.
The Commissioner gave consideration to Mr Hancock’s length of service in her consideration of s.387(h) at [194]-[195] of the Decision. It is clear from the Decision that the Commissioner was aware of Mr Hancock’s reliance on his performance history as a factor in making his dismissal unfair.[41] It is implicit in her comment at [189] and in her comments at [194] to [195] that she took this into account. Having weighed this matter against the other matters she was required to consider the Commissioner did not find it changed her view that the dismissal was not unfair in all the circumstances. We find no basis to disturb her finding in this regard.
Appeal Ground Five – Other Factors – s.387(h)
Mr Hancock submits that the Commissioner erred by proceeding on the basis that Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166 at [24] imposed a decision rule that if an employer submits that an employee has committed serious misconduct and the Commission finds that the employee has been afforded procedural fairness a conclusion of harshness is only open if significant mitigating factors were present.
Mr Hancock submits that such a decision rule fetters the discretion conferred by s.387 and results in a jurisdictional error for the reasons detailed in Toms v Harbour City Ferries Pty Limited (2015) 229 FCR 537 at [100].
At [100] Buchan J stated:
“Statements of principle often serve a useful and legitimate function. They provide a body of appellate guidance against which to test suggestions of error in future cases. They cannot substitute for, or alter, a statutory prescription but they are not jurisdictionally flawed unless they are given (or assume) the status of a “rule” or are general pronouncements not related sufficiently to the facts of the particular case (see, by way of example of the principle in the exercise of federal appellate judicial discretion, Wong v R (2001) 207 CLR 584 per Gaudron, Gummow and Hayne JJ at [83]). It is arguable that the statement in Parmalat which I set out earlier, infringed this restriction. It appears to be a dogmatic pronouncement if it was intended as a general rule. It could not fetter the broad evaluative task assigned by the FW Act using the principles I have discussed of “a fair go all round”. But, in a case such as the present, attention must remain focussed on the significance of the statement for the outcome of the present case, not some other case.”
At [101] Buchan J went on to state that:
“In my view, no jurisdictional error by the Full Bench has been demonstrated in this respect. In the present case the Full Bench did not ultimately resort to generalities drawn from an earlier case. It put aside the “other” factors which Deputy President Lawrence had regarded as relevant (and ultimately decisive) under s 387(h) and brought to account further matters to which it felt Deputy President Lawrence had given insufficient attention. That did not involve the imposition of “erroneous limitations on the unfair dismissal jurisdiction.”
On any reading the Parmalat Case does not (as asserted by Mr Hancock) purport to establish a decision rule that if an employer submits that an employee has committed serious misconduct and the Commission finds that the employee has been afforded procedural fairness a conclusion of harshness is only open if significant mitigating factors were present. Nor does the Commissioner assert it does in the Decision.
In the Parmalat Case, and since, the Full Bench has made clear that a finding of serious misconduct must made by the Commission and not merely an assertion made by the employer.[42] In this matter the Commissioner satisfied herself that the conduct engaged in by Mr Hancock occurred and that it was appropriate to characterise the conduct as serious misconduct.
We are satisfied that no jurisdictional error on the part of the Commissioner has been demonstrated. The Commissioner did not ‘resort to the generalities drawn’ from Parmalat. Rather she weighed up all of the considerations set out in s.387 including any findings in relation to mitigating circumstances before concluding that Mr Hancock’s dismissal was not unfair. We are satisfied that that conclusion was open to her on the evidence before her and find no appealable error.
Appeal Ground Six – Other Factors – s.387(h)
Mr Hancock submits that in Appeal Ground Six that the Commissioner erred in approaching her consideration of other relevant matters by failing to give consideration to Mr Hancock’s:
a)Acceptance of responsibility and remorse.
b)Commitment to engage in rehabilitation and not reoffend.
c)Length of service, safety record and employment history.
d)Breach was unintentional
e)Lack of impairment at the relevant time.
He concedes that the Decision expressly refers to a number of these matters at [194] but asserts that the Commissioner merely recited submissions of the parties and did not give these factors genuine consideration. We have considered the Decision and are satisfied that each of these matters were considered by the Commissioner directly or indirectly in the course of her decision specifically under the heading “(h) any other matters that the FWC considers relevant” and elsewhere in the Decision. That the Commissioner gave active consideration of the relevant matters is evident by her inclusion of these matters under the heading “(h) any other matters that the FWC considers relevant”. It is also evident in her conclusion at [204] where she states that:
“Despite his awareness of the drug and alcohol policy, after consuming an unknown quantity of cannabis the night before his shift, the Applicant proceeded to present for work the following day and tested positive at a high level. The Applicant’s actions in this regard have been weighed with all of the other relevant factors and do not support a finding that the dismissal was harsh, unjust and unreasonable…”
Mr Hancock submits that the Commissioner acted inconsistently with Full Bench authority in Sydney Trains v Hilder[2020] FWCFB 1373 by not taking into account that the Mr Hancock was not impaired when he attended work, that his breach of the Policy had not been intentional and that DP World had not consistently applied a ‘zero tolerance’ approach to breaches of the AOD Policy. We are satisfied that the Commissioner was alert to these matters. For example, at [196] she specifically considered the evidence as to whether or not DP World had in fact applied a ‘zero tolerance’ policy. At [198] she considered the frequency of which Mr Hancock had been smoking cannabis and at [200] she considered the proportionality of DP World’s response.
We therefore find that the Commissioner adequately considered these factors and the associated findings were sound and open to her on the evidence.
Appeal Ground Seven and Eight – Other Factors – s.387(h)
Mr Hancock submits in Appeal Ground Seven and Eight that the Commissioner erred in approaching her consideration of other relevant matters by:
a.Making an error of fact in finding at [180], [196] and [200] of the Decision that DP World had promulgated a zero tolerance approach to employees attending work with drugs in their system when in fact the Bulletin in question promulgated a zero tolerance approach to employees being under the influence of drugs (Appeal Ground Seven).
b.Failing to take into account that DP World had not announced or applied a zero tolerance approach to positive drug tests (Appeal Ground Eight).
At [180] the Commissioner merely states that DP World has a “… zero tolerance position.” She does not distinguish between a zero tolerance approach to employees attending work with drugs in their system and a zero tolerance approach to employees being under the influence of drugs at work.
In any event, the distinction is a matter of semantics both phrases provide a colloquial description of the actual terms of the AOD Policy. The policy does not impose disciplinary consequences for any quantity of drugs rather it imposes disciplinary consequences only when the quantity exceeds specified thresholds. The policy does not impose disciplinary consequences by reference to the effect of drug on the employee by way of impairment or ‘influence’. We therefore find that these grounds therefore do not give rise to appealable error.
Conclusion
We do not consider it would be in the public interest for permission to appeal to be granted because none of the appeal grounds or submissions have demonstrated appealable error in the Commissioner’s Decision. Further, no injustice or counter-intuitive result is manifest. The Commissioner’s findings and conclusion were open to her.
For the reasons set out above, permission to appeal is refused.
VICE PRESIDENT
Hearing details:
Matter determined on the papers.
Final written submissions:
Appellant, 19 July 2022.
[1] [2022] FWC 1406.
[2] Ibid [17].
[3] Ibid [17].
[4] Ibid [24].
[5] Ibid.
[6] Ibid [33].
[7] Ibid [38]-[44], [123].
[8] Ibid [121]-[123].
[9] Ibid [126].
[10] Ibid [115]-[119].
[11] Ibid.
[12] Ibid [107]-[108].
[13] Ibid [147].
[14] Ibid [131]-[134].
[15] Ibid [135].
[16] Ibid [136].
[17] Ibid [138]-[141].
[18] Ibid [137].
[19] Ibid [144] –[146].
[20] Ibid [147].
[21] Ibid [148]-[156].
[22] Ibid [159].
[23] Ibid [162]- [163].
[24] Ibid [165]-[168].
[25] Ibid [169]-[170]; [2015] FWCFB 1033.
[26] Ibid [157]-[158]; [2022] FWC 103.
[27] Ibid [172]-178].
[28] Ibid [179]-[181].
[29] Ibid [182].
[30] Ibid [183]-[186].
[31] Ibid [188].
[32] Ibid [189].
[33] Ibid [190]-[191].
[34] Ibid [192]-[200].
[35] Ibid [202]-[204].
[36] (2010) 197 IR 266.
[37] (2010) 197 IR 266 at [27].
[38] Wan v AIRC (2001) 116 FCR 481 at [30].
[39] Appeal Book page 394 Appellants Appeal Submissions dated 18 July 2022 at [14].
[40] Appellants Appeal Submissions at [13].
[41] Hancock v DP World Brisbane (n 1) [17], [26], [72], [104].
[42] Parmalat Food Products Pty Ltd v Wililo[2011] FWAFB 1166 at [26] and [32].
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