Glen O'Hanlon v Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy

[2015] FWC 1029

[2015] FWC 1029

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Glen O’Hanlon
v
Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy
(U2014/12616)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 FEBRUARY 2015

Application for relief from unfair dismissal - positive drug test investigation - resignation - termination not at initiative of the employer - in the alternative not harsh, unjust or unreasonable.

[1] On 17 September 2014 Mr O’Hanlon lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) in which he asserted that the termination of his employment by Alinta Energy Flinders Operating Services Pty Ltd T/A Alinta Energy (Alinta Energy) was unfair. The application was not resolved and was referred to me for determination.

[2] Alinta Energy asserted that it did not terminate Mr O’Hanlon’s employment but that he resigned in the course of a disciplinary process. In the alternative, Alinta Energy asserted that if it was found to have terminated Mr O’Hanlon’s employment, that termination was neither harsh, unjust nor unreasonable.

[3] Mr O’Hanlon’s application was the subject of a directions conference on 20 November 2014. At this conference he was represented by a lawyer. Alinta Energy also foreshadowed that it would seek a grant of permission for legal representation. The representation issue was addressed on the basis that written submissions were required within nominated dates. As Mr O’Hanlon then advised that he would not be represented and objected to a grant of permission being given to Mr Short, of counsel, for Alinta Energy, I determined the issue of representation in a decision 1 issued on 3 December 2014. In that decision I granted permission to Mr Short pursuant to s.596 of the FW Act.

[4] The question of whether Mr O’Hanlon’s termination was at the initiative of Alinta Energy and the merits of the application were considered in a hearing in Adelaide on 6 February 2015.

[5] Before addressing the material put to me in this hearing it is appropriate that I briefly summarise the manner of that hearing. Alinta Energy provided substantial material in support of its contentions consistent with the directions I issued on 24 November 2014. Mr O’Hanlon did not provide any material consistent with those directions, despite being reminded of the requirement to comply. In fact it was not until late on the day before the hearing of the matter that Mr O’Hanlon advised that he would participate, albeit only by telephone. At the commencement of the hearing on 6 February 2015 I gave Alinta Energy the opportunity to seek an adjournment. Alinta Energy did not seek an adjournment and the hearing proceeded on the basis that evidence was provided in support of the Alinta Energy position. Mr O’Hanlon then gave his evidence by telephone and, at his request, further evidence was given by two other witnesses by telephone.

The background

[6] Mr O’Hanlon was employed at the Alinta Energy Power generation facility at Port Augusta from June 2007. His role involved the operation of the coal train unloading system, the coal conveying system, bulldozer and loader operations and functions consistent with those of a Rail Safety Worker. Alinta Energy has policies and procedures relative to drug and alcohol consumption and a random employee drug and alcohol testing regime. On 22 August 2014 Mr O’Hanlon undertook a drug and alcohol test together with 11 other employees. Mr Hanlon returned two “non-negative” drug test results. He was subsequently stood down pending a disciplinary investigation. As Mr O’Hanlon was a member of the CFMEU, Alinta Energy alerted that union to the matter. Alinta Energy management and the CFMEU Organiser subsequently discussed likely outcomes of that investigation.

[7] On 3 September 2014 Mr O’Hanlon, together with the CFMEU Organiser and two CFMEU delegates met with Mr McIntyre, the Alinta Energy Client Manager, Mr Dickin, the Alinta Energy People & Culture Business Partner and Mr Chellachamy, the Alinta Energy Manager Production. In the course of that meeting Mr O’Hanlon resigned his employment.

The submissions

[8] Mr O’Hanlon’s position is that he had no option other than to resign his employment as he had been told by his CFMEU Organiser, Mr Warner that he was going to be dismissed and that dismissal would mean that he would not receive his pro rata long service leave or any payment in lieu of notice. Mr O’Hanlon asserted that the termination of his employment was unfair to the extent that it took into account an earlier final warning which he asserted was inappropriately given to him. Further, that he had not been properly trained relative to the operation of the Alinta Energy Drug and Alcohol policy and understood that a breach of that policy would result in warnings with termination of employment occurring only after repeated breaches. Additionally, Mr O’Hanlon advised that, whilst he had taken amphetamines some 36 hours prior to the test, he did not think that these would affect him and would not have attended work if he thought that he could have failed a drug test.

[9] The Alinta Energy position is that whilst the CFMEU Organiser, Mr Warner had been told that termination of Mr O’Hanlon’s employment was likely prior to the meeting on 3 September 2014, its termination of employment decision was subject to Mr O’Hanlon’s response to the invitation to provide further information at that meeting. Mr O’Hanlon did not provide any further information. Notwithstanding this, Alinta Energy asserted that it had not actually advised that he was dismissed before Mr O’Hanlon sought to resign. In the alternative, Alinta Energy asserted that if it was found to have terminated Mr O’Hanlon’s employment, this reflected a valid reason and fair process.

The evidence

[10] Mr McIntyre’s evidence went to the Alinta Energy power station operations at Port Augusta where Mr O’Hanlon was employed. He explained the safety issues associated with work on this site and the Alinta Energy Code of Conduct and Cardinal Safety Rules. His evidence included records showing Mr O’Hanlon’s participation in training associated with those requirements on numerous occasions throughout his employment. Additionally, his evidence went to the operation and implementation of the Alinta Energy Fitness for Work (Drug & Alcohol) Procedure which specifies a zero tolerance approach with respect to the presence of drugs and/or alcohol.

[11] Mr McIntyre’s evidence went to the application of this drug and alcohol procedure with respect to Mr O’Hanlon. He also detailed Mr O’Hanlon’s previous disciplinary history. Mr McIntyre explained the actions he took after Mr O’Hanlon returned the “non-negative” drug tests on 22 August 2014 and the extent to which he engaged in discussions with Mr Warner over the likelihood that Mr O’Hanlon’s employment would be terminated. His evidence was that:

“50. Over the next few days Greg Warner and I had approximately two telephone conversations regarding the potential outcome for Mr O’Hanlon given his positive drug test result.

51. Greg Warner telephoned and asked me words to the effect of ‘what would a likely outcome be for Glen?’.

52. To this I replied in words to the effect of ‘under our Policies and Procedures, Mr O’Hanlon’s employment could be terminated. In accordance with procedural fairness, Mr O’Hanlon will be given an opportunity to respond and this response will be considered, but it is something that we take seriously.’

53. During one of the conversations Greg Warner and I discussed the fact that if Mr O’Hanlon was summarily dismissed, he would not be entitled to any payment apart from for his accrued annual leave and would not be entitled to any pro-rata long service leave payment. Greg Warner and I also discussed the fact that Mr O’Hanlon would not be entitled to any payment in lieu of notice if he was summarily dismissed.” 2

[12] Mr McIntyre’s evidence went to his conduct of the investigation meeting on 3 September 2014 and, in particular, the extent to which he invited Mr O’Hanlon to provide further information before the commencement of the meeting. When Mr O’Hanlon declined to provide further information Mr McIntyre commenced to read from a pre-prepared termination of employment letter. His evidence was that before he was able to advise Mr O’Hanlon of the termination of his employment, Mr O’Hanlon asked if he could resign. After considering that request Mr McIntyre agreed that Mr O’Hanlon could resign. He suspended the meeting to allow Mr O’Hanlon to have further discussions with his support people. 3 Mr O’Hanlon then returned, wrote out his resignation letter,4 shook hands and left.

[13] Finally, Mr McIntyre’s evidence went to the incidence of two other non-negative drug test results on the part of Alinta Energy employees. One of those employees was not dismissed as a result of his expressed remorse and previous employment history.

[14] Mr Dickin’s evidence went to the implementation and operation of the Fitness for Work (Drug & Alcohol) Procedure and the disciplinary process detailed in the Flinders Operating Services Pty Ltd Augusta Power Stations Enterprise Agreement 2011-2014 which regulated Mr O’Hanlon’s employment. He explained his previous involvement in dealings with Mr O’Hanlon and the steps he took to advise Mr O’Hanlon that he had returned two “non-negative” test results on 22 August 2014. Mr Dickin’s evidence went to the actions he took to arrange the investigation meeting on 3 September 2014 and his participation in that meeting. In this respect his evidence was consistent with that of Mr McIntyre.

[15] Mr O’Hanlon’s evidence was that, prior to the meeting on 3 September 2014 he was advised by his union representative that Alinta Energy had decided that he was going to be dismissed on the basis that he had tested positive to drugs. Further, that in the event of that dismissal he would not receive any pro rata long service leave or notice payment. Accordingly, he asserted that he had no choice other than to resign. His evidence was that:

“Mr O’Hanlon: I had no job, I had no money, it did look like a better opportunity to resign and a clean slate on my name so I could obtain more work ... so especially, in my books, I had no choice but to resign.” 5

[16] Mr O’Hanlon asserted that other persons had not been dismissed following positive drug or alcohol test outcomes. He asserted that he had not been properly trained in the operation of the drug and alcohol procedure and had always understood that it was a “three strike policy”. His evidence was that he was aware that drugs generally could result in termination of employment. 6 He admitted that he had taken amphetamines some 36 hours earlier. Whilst he normally “self tested”, his evidence was that he would not have attended for work if he believed he was still under the influence of drugs.

[17] Mr O’Hanlon’s evidence went to the circumstances under which he had been given a final warning within the last 12 months. He advised that this warning related to an entirely different set of circumstances to those that led to the termination of his employment.

[18] Mr Hoffmann is a Foreman Team Leader and Union Representative. His evidence went to his participation in the investigation meeting on 3 September 2014 but he was unable to recall whether Mr McIntyre advised Mr O’Hanlon that he was dismissed before Mr O’Hanlon then indicated that he wished to resign. His understanding was that Mr O’Hanlon decided to resign because he considered he had no other choice.

[19] Mr Paynter is also a Team Leader with Alinta Energy and is a union delegate and an Occupational Health & Safety representative. His evidence was that he understood that before the investigation meeting on 3 September 2014 Mr O’Hanlon was told by Mr Warner that he would be dismissed and that he would not receive termination payments unless he resigned. Mr Paynter’s evidence went to his understanding that Mr O’Hanlon resigned because he would otherwise be dismissed.

[20] I have noted Mr O’Hanlon’s advice that he did not call Mr Warner to give evidence because he had not been able to contact him. I have not drawn any adverse inference from this but have simply determined the issues before me on the evidence available to me.

Findings

[21] I have reached a number of conclusions on the evidence before me. I have set out these conclusions before detailing the position I have reached in relation to the matters to be determined.

[22] Mr O’Hanlon was given a First and Final Written Warning on 23 December 2013. This warning related to his conduct and behaviour towards another employee. The warning stated:

“The Company holds serious concerns about your behaviours, which we have concluded to constitute a material breach of the Code of Conduct, and as such is viewed very seriously by Alinta Energy. Accordingly, this letter constitutes a First and Final Written Warning.

Any further breaches of the Code of Conduct will result in further disciplinary action in accordance with the Discipline Policy and Guideline and Flinders Operating Ltd Pty Augusta Power Stations Enterprise Agreement 2011-2014, and may ultimately result in the termination of your employment.

I reiterate that a condition of your employment with Alinta Energy is that you meet the requirements of the Code of Conduct. You may request appropriate training and development to assist you to do so.” 7

[23] I have concluded that, whilst Mr O’Hanlon may have disagreed with the basis upon which that warning was given to him, it clearly placed him on notice about the requirement to comply with the Alinta Energy Code of Conduct if he was to remain employed.

[24] I am satisfied that, given the nature of its business as a power generator, together with the equipment used and work functions undertaken by employees such as Mr O’Hanlon, a zero tolerance approach to drug and alcohol use in the workplace is both reasonable and required. In this respect I am satisfied that termination of employment in circumstances where an employee returns a “non-negative” test result could be expected, depending on Alinta Energy’s assessment of the particular circumstances of an employee.

[25] I am satisfied that the Alinta Energy drug and alcohol policy requirements were clearly set out and that appropriate steps were made to ensure that Mr O’Hanlon was aware of requirements in this respect.

[26] I am satisfied that Alinta Energy took appropriate steps to implement that drug and alcohol testing regime and that it acted to properly and fairly investigate Mr O’Hanlon’s circumstances following the “non-negative” test results. In this respect I have particularly noted that detailed advice 8 was provided to Mr O’Hanlon on 2 September 2014 about the investigation interview and disciplinary process. Additionally, Alinta Energy facilitated the participation in this interview by two union delegates and Mr Warner as the CFMEU Organiser.

[27] I have concluded that Mr McIntyre simply explained to Mr Warner the probable outcome of the investigation into Mr O’Hanlon’s circumstances and that, to the extent that this went to termination of employment, it was qualified by the commitment to give Mr O’Hanlon an opportunity to explain his circumstances before any such employment termination.

[28] I have accepted the evidence of Mr McIntyre and Mr Dickin, to the effect that Mr McIntyre had not actually advised Mr O’Hanlon that he was dismissed when Mr O’Hanlon requested the capacity to resign. Whilst advice of that dismissal was clearly about to be provided to Mr O’Hanlon, Mr McIntyre had not actually advised him of his dismissal. On the evidence before me, I am not satisfied that Alinta Energy management, including Mr McIntyre and Mr Dickin used Mr Warner, as a union Organiser, to advise Mr O’Hanlon that he was dismissed.

[29] Section 386 relevantly states:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[30] The concept of “termination at the initiative of the employer” has been extensively considered by the Commission. In O’Meara v Stanley Works Pty Ltd 9 a Full Bench stated:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[31] I have considered all of the issues addressed in that decision in the circumstances of this matter.

[32] I do not consider that Alinta Energy had engaged in conduct which was intended, or had the probable effect of bringing Mr O’Hanlon’s employment to an end. I have concluded that Alinta Energy provided advice to Mr Warner about the likely outcome of the matter in the course of the investigation process, but, clearly reserved the capacity to adopt a final position relative to Mr O’Hanlon depending on the advice which he had the opportunity to provide at the commencement of the meeting on 3 September 2014.

[33] Mr O’Hanlon admitted to taking drugs. I am satisfied that he made that admission to a number of people including Mr Warner and that, in these circumstances, Mr Warner’s prediction to him that he was likely to be dismissed simply reflected both a reality and advice quite properly provided as Mr O’Hanlon’s representative.

[34] In these circumstances I am satisfied that Alinta Energy was properly following its disciplinary practices procedures and, at the time at which Mr O’Hanlon sought to resign, had not advised him of the termination of his employment. Had it been the case that this termination of employment advice had actually been given to Mr O’Hanlon a different conclusion must follow. It would be inherently unfair to conclude that a reasonable and fair investigation process represented a course of action intended to force an employee to resign simply because, in this circumstance, the employee had no excuse for their significant misconduct.

[35] Accordingly, I do not consider that Mr O’Hanlon was dismissed at the initiative of Alinta Energy. I have concluded that he resigned in order to protect termination payments that would otherwise not be available to him given that he agreed that he had used drugs, failed the drug test and not provided any mitigating circumstances. As a result, I do not consider that Mr O’Hanlon was dismissed. Consequently, he is not able to pursue this application.

[36] For the avoidance of doubt, in the event that I am wrong in this regard I have considered whether, if Mr O’Hanlon was dismissed at Alinta Energy’s initiative, that dismissal could be considered unfair.

[37] Section 387 states:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[38] I have considered each of these factors in the circumstances of this case.

Valid reason

[39] Notwithstanding subsequent changes made to the legislation I have adopted the concept of a valid reason detailed in Selvachandran v Petersen Plastics Pty Ltd 10 by Northrop J.

[40] The Alinta Energy Fitness for Work (Drug & Alcohol policy, including its associated training and information advice makes it clear that termination of employment is a potential outcome arising from a “non-negative” test. That policy stresses the significance of a drug and alcohol free workplace. The Alinta Energy Cardinal Rules specify a breach of the drug and alcohol policy as completely unacceptable behaviour which could result in dismissal. 11

[41] I have concluded that Mr O’Hanlon’s attendance at work and subsequent “non-negative” test represents a breach of those Cardinal Rules. Furthermore, the nature of the work undertaken by Mr O’Hanlon and the environment in which that work was undertaken mean that an employee affected by drug use creates the potential for serious workplace health and safety concerns. Mr O’Hanlon conceded that he had taken amphetamines.

[42] Mr O’Hanlon has not detailed a coherent basis upon which to found his assertion that he understood that he would be guaranteed warnings before being dismissed in the event that he breached the drug and alcohol policy. The evidence confirms the training and advice given to him relative to this policy. Furthermore, Mr O’Hanlon’s advice that he believed that he was not affected by drugs, that he normally “self tested” and that he would not have intended to attend for work if he was affected by drugs, do not represent mitigating circumstances in this matter. No basis upon which the Alinta Energy drug testing regime should be questioned has been made out to me.

[43] I have concluded that Mr O’Hanlon’s attendance at work with discernible quantities of drugs identified through the Alinta Energy drug testing system represents a valid reason for the termination of his employment.

Notification of the reason

[44] I am satisfied that Mr O’Hanlon was aware of the reason for the termination of his employment and that, at the time at which he requested the capacity to resign, Alinta Energy was in the process of comprehensively advising him of the reasons for the decision to dismiss him. Those reasons were set out in the termination of employment letter dated 3 September 2014.

Opportunity to respond

[45] Mr O’Hanlon was clearly given an opportunity to respond to the allegations against him at the commencement of the investigation meeting on 3 September 2014. Additionally, the advice provided to him before that meeting confirmed the process that was being followed by Alinta Energy.

Access to a support person

[46] Alinta Energy facilitated Mr O’Hanlon’s access to his union Organiser and two delegates. Not only were these persons present at the meeting on 3 September 2014, but Mr O’Hanlon clearly had access to them prior to this meeting.

Previous warnings

[47] Mr O’Hanlon was given a First and Final Warning on 23 December 2013. Whilst he may have disagreed with the basis upon which that warning was given, it was patently clear that further breaches of the Cardinal Rules were likely to result in the termination of his employment.

Size of the Alinta Energy business and access to dedicated human resource management expertise

[48] Alinta Energy is a large business which clearly has sophisticated human resource management policies and procedures and specialist human resource management expertise. Those procedures and that expertise were followed and applied in Mr O’Hanlon’s circumstances.

Other matters that may be relevant

[49] I do not consider that there are any other matters relevant to Mr O’Hanlon’s circumstances.

Conclusion

[50] Consequently, even if I had formed the conclusion that Alinta Energy left Mr O’Hanlon with no option other than to resign and, as a result, the termination of his employment was at the initiative of the employer, that termination could not be regarded as harsh, unjust or unreasonable. Mr O’Hanlon’s behaviour in attending for work when he was not able to return a negative drug test result provided a valid reason for the termination of his employment and the process followed by Alinta Energy was demonstrably fair.

[51] Mr O’Hanlon’s application must therefore be dismissed, firstly on the basis that the termination of his employment was not at the initiative of the employer and, in the alternative, on the basis that if that dismissal was at the initiative of the employer, it was not unfair. An Order (PR560981) reflecting this decision will be issued.

Appearances:

G O’Hanlon (by telephone), on his own behalf.

A Short counsel for the respondent.

Hearing details:

2015.

Adelaide:

February 6.

 1   [2014] FWC 8681

 2   Exhibit A2, paras 50 - 53

 3   Exhibit A2, paras 60 - 66

 4   Exhibit A2, attachment GM- 19

 5   Transcript Sound File, 10:36:40am, 6 February 2015

 6   Transcript Sound File, 10:31am, 6 February 2015

 7   Exhibit A2, attachment GM-15, first three paras of page 2

 8   Exhibit A3, attachment GD-4

 9   PR973462

 10 (1995) 62 IR 371

 11   Exhibit A2, attachment GM-7

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<Price code C, PR560980>