Gus Sicolo v Accolade Wines Australia Limited T/A Accolade Wines
[2015] FWC 5920
•19 OCTOBER 2015
| [2015] FWC 5920 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Gus Sicolo
v
Accolade Wines Australia Limited T/A Accolade Wines
(U2015/5513)
COMMISSIONER HAMPTON | ADELAIDE, 19 OCTOBER 2015 |
Application for relief from unfair dismissal – alleged breach of drug and alcohol policy and directions – whether policy being applied and enforceable – whether warnings and directions lawful and reasonable – whether valid reason – conduct in breach of reasonable requirements – valid reason for dismissal – whether harsh in the circumstances – dismissal not harsh, unjust or unreasonable – application dismissed.
1. Background and Case Outline
[1] Mr Gus Sicolo has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Accolade Wines Australia Limited T/A Accolade Wines (Accolade Wines).
[2] Accolade Wines is a large wine producer which, amongst other activities, operates various manufacturing wineries throughout Australia.
[3] Mr Sicolo commenced employment with what is now Accolade Wines in 1994 as a casual Cellarhand and became a permanent employee in 1996. He continued to be employed at the Berri winery in the Riverland region of South Australia until his dismissal on 6 May 2015.
[4] Mr Sicolo was terminated on the basis of his conduct; being that he returned a series of positive tests for alcohol that Accolade Wines contends was in breach of its Drug and Alcohol Policy (D&A policy) and certain written warnings.
[5] There is no dispute that Mr Sicolo was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.
[6] It is common ground that on a number of occasions Mr Sicolo tested positive for alcohol consumption via breath tests that were conducted by Accolade Wines. It is also not disputed that on the morning of his scheduled work shift on 30 April 2015, Mr Sicolo underwent two such positive tests and that he was given a series of disciplinary warnings leading to that point.
[7] Mr Sicolo contends that his dismissal was unfair on a number of grounds including:
● There were particular circumstances leading to his consumption of alcohol including an on-going back injury and his hours of work;
● The D&A policy was only a trial policy and it was not fair or appropriate to apply it for the purposes of the dismissal;
● Mr Sicolo did not clock on for duty on the morning of 30 April 2015 and undertook the testing on the understanding that if he tested positive, he would not seek to clock on and could return home without being in breach of the D&A policy;
● The D&A policy should not, in any event, apply just because Mr Sicolo was on the worksite and the policy did not provide for testing at the start and end of each shift as was being applied by the employer; and
● Accolade Wines was inappropriately seeking to apply a zero reading requirement which was not appropriate or consistent with D&A policy as Mr Sicolo was not being reasonably required to undertake high risk work.
[8] Mr Sicolo further contends that there was no valid reason for dismissal and that in any event it was harsh given his extensive service, age, work injury and the limited prospects for further employment in the community in which he lives.
[9] Mr Sicolo seeks reinstatement and contends that this is the appropriate remedy in the circumstances.
[10] Accolade Wines contends that the dismissal was not unfair on any grounds and argues that:
● Mr Sicolo returned a series of positive tests for alcohol and had been given a series of written warnings and counselling between 26 February and 30 April 2015;
● The D&A policy was being trailed at the Berri site as a forerunner to its potential introduction to other winery sites in Australia, however, its actual application at that site was well understood by the parties, including Mr Sicolo who, as a delegate, was involved in the development and promulgation of the policy;
● The D&A policy contemplated additional steps being implemented where an employee tested positive, and in this case, that included the requirement that Mr Sicolo undergo testing before and after each shift and that he have a zero (negative) reading;
● These requirements were reasonable in the circumstances including that there was a series of positive results and Mr Sicolo’s role included the operation of fork lift equipment; and
● The attendance at work on 30 April 2015 (where he twice tested positive for alcohol consumption) was in breach of the express written warning and associated directions, and meant that there was a valid reason for dismissal.
[11] Accolade Wines also contends that there was no procedural unfairness and the application should itself be dismissed.
[12] This application was subject to a hearing following consultation with the parties as contemplated by s.399 of the FW Act.
2. The evidence
[13] Mr Sicolo provided a witness statement and gave evidence in the matter. Mr Sicolo also relied on the evidence of the following:
● Robyne Lyneham, United Voice Official – who supported Mr Sicolo during two interviews conducted by Accolade Wines in connection with this matter; and
● Boyd Macrae – Organiser with United Voice – who was involved in the negotiations surrounding the D&A policy and some discussions associated with the dismissal of the applicant.
[14] Accolade Wines provided witness statements and led evidence from the following employees:
● Nathan Richardson, Cellar Manager – South Side;
● Meryn Elliott, Human Resources Business Partner – Supply Chain & Operations;
● Travis Haeft, Operations Manager – Berri Site;
● Terry Frahn, Maintenance Leading Hand; and
● Timothy Flaherty, Global HR Manager – Supply Chain.
[15] There are some factual disputes and I have resolved these having regard to the overall consistency and credibility of the evidence. In so doing, I found that each of the witnesses gave generally credible evidence and that the differences between them were largely the result of different recollections and subjective views about the matters in dispute.
3. Mr Sicolo’s employment and the events leading to his dismissal
[16] I leave aside for the moment the terms and status of the D&A policy.
[17] Mr Sicolo is presently 58 years of age. Having commenced employment with Accolade Wines in 1994, he has 21 years of service at the Berri winery. He is a delegate for United Voice and plays an active role in representing members at the site.
[18] Mr Sicolo was generally considered by management to be a hard-working, conscientious and honest worker. There were, however, some concerns about the consistency of his work attendance at some stages during the time period canvassed by this decision and this led to a change in his work role. 1 No (other) disciplinary action was taken in this regard.
[19] In or around 2004, Mr Sicolo suffered from a work-related back injury and he has from time to time received treatment for on-going pain. This treatment included cortisone doses in or around every two years and this has had a significant positive impact. Accolade Wines organised and paid for that treatment whenever requested by the applicant.
[20] Mr Sicolo describes himself as a “social drinker” of alcohol however his evidence is that he would sometimes consume alcohol when suffering from back pain and would often have a drink at the end of each work day. Mr Sicolo’s last cortisone treatment was in mid-2013 but there is no evidence that he sought a further round of treatment prior to or during the events leading to his dismissal.
[21] Other than as discussed in this decision, there is no indication of any significant performance or conduct issues arising during Mr Sicolo’s employment.
[22] The D&A policy was introduced at the Berri site in January 2015.
[23] In or about early January 2015, Accolade Wines commenced a new project at the Berri site called the “Juice Concentrate Project”. The project involved six employees being removed from their usual shift duties to work in the evaporator room.
[24] Mr Sicolo started working in the evaporator room on the project at its commencement. Throughout January 2015, Mr Sicolo was working from 7.30am until 3.30pm Monday to Friday whilst he was undertaking evaporator and boiler training.
[25] The intention was for Mr Sicolo to run the boiler in the evaporator room. However, he was not successful in gaining the relevant high risk licence to operate the boiler and it was decided that Mr Sicolo would operate the evaporator instead. During his time working in the evaporator room, Mr Sicolo also continued to drive the forklift as part of his work duties.
[26] On 25 February 2015, Mr Sicolo was a witness to an incident involving two other employees. When checking on one of the employees, Mr Sicolo was sworn at and threatened. These events upset the applicant. When he finished work he went home and drank both beer and wine and eventually slept for a period of over 13 hours making him late for his shift on 26 February.
[27] In the early morning of 26 February 2015 during his work shift, Mr Sicolo was subjected to a random alcohol breath test which was administered by Mr Flaherty. Mr Sicolo returned a blood alcohol reading of 0.069g% - equivalent blood alcohol content (or bac). When advised and offered the opportunity to wait for a second test, Mr Sicolo indicated to the effect that there would be no point.
[28] Mr Flaherty then drove the applicant home from work. During that drive, Mr Sicolo raised the events of 25 February 2015 with Mr Flaherty who did not wish to engage him on the subject given the circumstances and the applicant’s condition.
[29] On Monday 2 March 2015, Mr Haeft and Mr Richardson met with Mr Sicolo to discuss the “non-negative” test result he had returned on 26 February 2015. Mr Heaft said to Mr Sicolo words to the effect of:
“As you have blown high numbers, you will be issued with a warning from HR shortly. You will also no longer be in the random pool for alcohol testing and instead, you will be required to submit to an alcohol test two times per day, before and after every shift. You will be expected to blow O.OOg% otherwise further disciplinary action may be necessary. This will all be set out in your warning letter.” 2
[30] Mr Heaft then administered an alcohol test on Mr Sicolo and he returned a non-negative result of 0.005g%. Mr Sicolo was advised that management would not take any action in respect of this reading because it would not be fair as he had not yet received his warning from human resources. However, Mr Heaft emphasised that in future he would be required to “blow” 0.00g% and that if he did not comply with this requirement, disciplinary action, including dismissal, might be taken.
[31] On 4 March 2015, Mr Sicolo attended a meeting with management to discuss his work in the evaporator room. Mr Haeft also read, and provided the applicant with, the following written warning:
“…
Dear Gus
This final warning is being issue to you as a result of an alcohol breath test analysis taken by Tim Flaherty (Global HR Manager - Supply Chain) on 26 February 2015 at 1.15am at which a result of 0.069g/bac was returned by you.
As this is a breach of the Accolade Wines Drug and Alcohol Policy and Procedure, you will be required to undertake an alcohol breath test before each shift and at the end of each shift and where it is deemed necessary during your shift. It is your responsibility to not start work until an alcohol breath test has been conducted and the results recorded and signed off on by the tester and yourself. You also must not leave the premises upon finishing work until a breath test has been conducted and the results have been recorded and signed off on· by yourself and the tester.
Initially daily breath testing will continue for at a period of at least one month, however, daily testing may continue for a period deemed necessary by the Company. Once the Company feels daily testing is no longer required, you will still be required to undertake regular alcohol breath testing as requested by the Company. The person conducting the testing will be a Manager or Supervisor and will be trained in how to use the testing equipment and what to do in the event that a positive reading is returned.
We have placed these conditions on your employment in order to support Accolade Wines responsibility for providing a safe workplace and to reduce the risk of injury, ill health and incidences for all workers.
As per the Accolade Wines Drug and Alcohol Policy and Procedure, the Company can also assist with drug and alcohol rehabilitation and can provide an amount of up to $600.00 to put towards such a program. Please provide the details to me if you wish to attend a drug and alcohol program so that you can be reimbursed. Evidence of your attendance to any programs paid for by Accolade Wines will be required.
If, in future a positive reading is returned, further disciplinary action will be taken, which could result in the termination of your employment. Refusal to undergo an alcohol breath test will be taken as a positive reading and will result in further disciplinary action.
This formal warning will be held on your personal file.
Yours sincerely
Travis Haeft
Operations Manager” 3
[32] Mr Sicolo acknowledged that he had done the wrong thing and apologised. He did however also express some concerns about the requirement to undergo a test before and after each shift and the “high-risk work” requirement of 0.00g%. He signed the warning and added a note about the second aspect in the following terms:
“Final written notice is mentioned in policy but the mention of High Risk Licence holders blowing over 0.00 in initial test needing to show 0 on subsequent daily check doesn’t.” 4
[33] After a discussion with Mr Haeft, Mr Sicolo made copies of the warning, with his personal details redacted but with the above hand written note added, and placed them onto various notice boards in the workplace. This action confirms that Mr Sicolo had concerns about the zero test aspect of the warning. However, it also confirms that he was aware that the D&A policy, and associated disciplinary action, was being applied by the employer, and that he understood the actual requirements upon him.
[34] After the applicant had consulted with United Voice, a letter was sent by the union raising concerns about the implementation of the D&A policy and what it described as the harsh warning given to the applicant.
[35] Following 4 March 2015, Mr Sicolo resumed work in the winery area managed by Mr Richardson. During this time, he was required to work either the day shift (8.00 am to 4.00 pm), afternoon shift (4.00 pm to midnight) or night shift (midnight to 8.00 am).
[36] I am satisfied that operating the forklift was part of Mr Sicolo's regular duties in the winery area. That is, he was not rostered solely to operate the forklift, however, Mr Sicolo could be required at any time to move pallets using the forklift as part of his duties.
[37] Between 4 March 2015 and 16 March 2015, Mr Haeft regularly administered alcohol breath tests for Mr Sicolo before and/or at the end of his shifts. In respect of the pre-shift tests, Mr Sicolo would generally report for testing a few minutes before he was due to commence work. After his test, he would walk straight out onto the floor and commence working.
[38] On 15 March 2015, Mr Sicolo reported to Mr Heaft to undergo his alcohol test a few minutes before he was due to commence his shift at midnight. Mr Sicolo returned a blood alcohol result of 0.017g%. Mr Sicolo said words to the effect of “I haven't had a drink in 3 days”. Mr Haeft said to Mr Sicolo words to the effect of “you have to register zero as these are the conditions in your warning”.
[39] Mr Sicolo responded that he would not be using a forklift that night. Mr Heaft said to Mr Sicolo words to the effect of “you have a high risk licence so you have to register as zero”.
[40] Mr Sicolo was requested to sit down pending a further test and when this was conducted, he again blew 0.017g%. At approximately 12.45 am that morning, Mr Sicolo blew 0.00g% and he was permitted to commence his shift. No further action was taken in these circumstances.
[41] On 18 March 2015, Mr Sicolo was tested at the start of his shift. He tested 0.072g% and after a 20 minute delay, he tested 0.066g%. Mr Sicolo indicated in evidence that he was having difficulty sleeping on the day before and had drunk beer and wine to assist him to sleep.
[42] Mr Sicolo was sent home from work and he was subsequently suspended on pay pending a meeting to discuss the circumstances.
[43] I note that at some stage in late March 2015, there was a discussion between Mr Flaherty and Mr Macrae during which the employer emphasised concerns that Mr Sicolo was apparently not taking his circumstances seriously and may lose his job as a result. Mr Macrae indicated that it was unfair for Mr Sicolo to be disciplined in the context of a “trial policy” and that a rehabilitative process should be undertaken given Mr Sicolo’s circumstances. Mr Flaherty however confirmed that the obligations in the D&A policy stood and were being applied, and that disciplinary action would be continued unless the applicant sought help for his “drinking problem”. Mr Macrae advised Mr Flaherty that he would speak to Mr Sicolo about seeking help for his “drinking problem”, which he subsequently did.
[44] On 25 March 2015 a disciplinary meeting was conducted by Ms Elliot and Mr Haeft involving Mr Sicolo, Ms Lyneham, and other support persons from United Voice. Ms Elliot sought clarification as to why there was a non-negative reading given the earlier warning. Mr Sicolo stated that it was like any other day in terms of his dealing with his back issues and the lack of sleep. During the meeting Mr Sicolo questioned the status of the D&A policy as a trial and whether the earlier warning would be acted upon in that light. I also note that one of the United Voice officials also raised the notion that the requirement for the test results to be zero was unfair. Ms Elliot indicated to the effect that the policy was being trialled but that the rules would stand and the disciplinary action and termination would occur if zero testing outcomes were not maintained.
[45] During the course of the 25 March meeting, Mr Sicolo also raised concerns about the impact of working hours and shifts during the vintage period. Mr Haeft confirmed that the applicant was required to work rotating shifts during the vintage.
[46] It was agreed at the meeting that Mr Sicolo would take annual leave to assist him. He was also offered access to a rehabilitation program however the applicant declined that proposal. Mr Sicolo also received a further written warning in the following terms:
“Dear Gus
This letter is to confirm the outcome of a meeting held on 25 March 2015 where an incident that occurred on 18 March 2015 was discussed. The incident in question was where you returned a blood alcohol content of .072g% at 12.05am and when a second test was taken 20 minutes later you returned a blood alcohol content of .066g%.
In attendance at the meeting was yourself and on your behalf Tony Wasley, Trevor Chamberlain, and by telephone Robyne Lyneham and Chris Zammit of United Voice and Travis Haeft (Operations Manager) and myself for Accolade Wines. It was discussed that this non-negative result was a further breach of the Accolade Wines Drug and Alcohol Policy and Procedure (the Policy) and that you had already received a final warning due to an earlier breach of this Policy that occurred on 26 February 2015 where you returned a non-negative result.
The seriousness of the matter was put to you and you were given an opportunity to respond. It was also stated that as per the Policy, Accolade Wines would be able to assist with costs associated with counseling or assistance if needed up to the value of $600 and, at the time of the meeting this offer was refused; I advised that the offer would still stand if you needed it and to let us know if you changed your mind.
It was agreed that upon returning to work, you would be breath tested for alcohol at the start and end of each shift, and if deemed necessary by management, during each shift. This regular testing will initially continue for one month upon your return to work, after which time management will review this process and determine whether to continue this for a further period of time, any continuation of regular alcohol breath testing will be discussed with you prior to it taking place.
I also confirmed that your final warning would still stand. If, in future a positive reading is returned, further disciplinary action will be taken, which could result in the termination of your employment. Refusal to undergo an alcohol breath test will be taken as a positive reading and will result in further disciplinary action.
We have placed these conditions on your employment in order to support Accolade Wines responsibility for providing a safe workplace and to reduce the risk of injury, ill health and incidences for all workers.
It is understood that you wish to take some of your leave entitlement and at the time of the meeting It was discussed that you would return to work on Monday the 30th of March 2015, however, it was also discussed that If you wish to take some additional leave that you will need to discuss this with Travis Haeft.
Please do not hesitate to contact me if you have any questions regarding our meeting, or if you wish to take up our offer of assistance should you need.it.
Yours sincerely
Meryn Elliot
HR Business Partner” 5
[47] Mr Sicolo returned to work on or about 20 April 2015 and worked regularly in the winery from 8.00am to 4.00pm. He was tested at the start and conclusion of each shift without incident until 30 April 2015.
[48] There is some dispute about the details of a conversation between Mr Haeft and Mr Sicolo about “voluntary testing” during this period. To the extent of that dispute, I prefer the oral evidence of Mr Haeft. Based upon the evidence before the Commission I find that there was a conversation, probably in March 2015, about the benefit of employees self-testing and not presenting for work when not fit to do so. I find that Mr Sicolo indicated that in light of the D&A policy, employees who were unsure of their status may simply ring in to work and indicate that they were not available. Mr Haeft indicated to the effect that this would mean that a potentially unsafe employee was not on site and that this would be a win-win outcome. I am however not satisfied that this discussion extended to any express views about employees attending the workplace to be tested by the employer prior to commencing work. I find that this element of the purported discussion is Mr Sicolo’s interpretation as to how self-testing might operate rather than any view, implied or expressed, or endorsed by Mr Haeft (or anyone else in management).
[49] I am also satisfied that there was an earlier discussion involving Mr Haeft and Mr Sicolo about the benefit of the applicant buying a self-testing unit and employees, with concerns about testing positive to alcohol, doing likewise.
[50] On the evening of 29 April 2015, Mr Sicolo again consumed alcohol in the context of what he described as his “pain management”.
[51] On 30 April Mr Sicolo attended the workplace at around 6.40am, being about an hour and twenty minutes before his scheduled shift. I add that it was common practice for the applicant to attend very early on day shift and to wait around doing crosswords. About ten minutes before his scheduled shift, Mr Sicolo presented for his breath test and this recorded a reading of 0.042g%. Mr Sicolo indicated to Mr Richardson, who had conducted the test, that he would sit down and come back for the next test.
[52] Some twenty minutes later, Mr Sicolo again presented for his test and a result of 0.025g%. was recorded The applicant indicated to Mr Richardson words to the effect that as he had not yet officially clocked on, he was going home; which he did.
[53] On 5 May 2015, a disciplinary meeting was conducted by Mr Flaherty and Mr Haeft involving Mr Sicolo and Ms Lyneham (and others) to consider the events of 30 April 2015. Mr Flaherty advised that he was aware of the recent positive tests and confirmed that Mr Sicolo had been informed that any further non-negative result could lead to further disciplinary action including termination of employment.
[54] Mr Sicolo, in effect, indicated that he supported the safe work aspect of the D&A policy however it was not appropriate to be pursing disciplinary action against him when the policy was being trialled and that he had not clocked on to his shift at the time of latest tests. The applicant also advised that he had adopted this practice in the week leading up to those tests. That is, he was in effect, undertaking a voluntary test. Mr Flaherty questioned whether there was a difference between what he had done on that day and other days when there was no result. Mr Sicolo indicated that he had had back issues and that alcohol assists him and that as a result, he was not going to clock on until he blew zero.
[55] In response to a question about clocking on, Mr Flaherty indicated that the disciplinary action was being taken in connection with his non-negative test results and not his attendance at work.
[56] It is likely that one of the United Voice delegates also referred to the concept of voluntary testing, without sanction, being permitted.
[57] Mr Flaherty indicated that the concept of voluntary testing may have been in the policy but was not relevant because the applicant was on a specific testing regime and that he was expressly advised that he could not blow over zero. Mr Flaherty did however indicate that there was some merit in Mr Sicolo’s response and that this should be considered and discussed with other senior management. He adjourned the meeting until 1.00pm on the following day.
[58] Mr Flaherty used the adjournment to consider the issues and to check with Mr Richardson what had been said and done in connection with the testing of Mr Sicolo on 30 April 2015.
[59] On 6 May 2015, during the resumed disciplinary meeting, Mr Flaherty advised Mr Sicolo that his employment would be terminated and he attempted to give the applicant a letter that he had prepared earlier that morning. Mr Sicolo refused to accept the dismissal and repeated his earlier reference to the fact that he had not clocked on at the time of his testing.
[60] A copy of the letter of dismissal was subsequently provided to the applicant, via Ms Lyneham, and this read as follows:
“…
Dear Gus
Previously you received a first and final warning relating to a breach of the Accolade Wines Drug and Alcohol Policy and Procedure relating to an alcohol breath test taken on 26 February 2015 where you returned a result of 0.069g/bac. The first and final warning was dated 27 February 2015 and placed a condition on your employment that you were to be breath tested at the start and end of each shift (and during your shift if it was deemed necessary by your manager) for a period of at least one month. The letter also explained that if you returned any further positive results that further disciplinary action would be taken.
At one of your regular alcohol breath tests on the morning of 30 April 2015 you returned another positive result, which is considered a further breach of the Drug and Alcohol Policy and Procedure.
A meeting was held on 5 April [sic] 2015 where you were given an opportunity to provide your explanation regarding the positive result. Taking into consideration your explanation we have deemed that the breach of policy has continued, therefore the termination of your employment will be effective at 6 May 2015 and you entitlements will comprise outstanding annual leave and long service leave balance together with the required notice period under the Accolade Wines Australia Ltd (Wineries – South Australia) Enterprise Agreement 2013-2016.
Your final pay including any payment in lieu of notice and outstanding or accrued annual leave will be direct credited into your bank account on your final day of notice. You are required to return all Company property forthwith. Any property not returned may result in a corresponding deduction form you final pay.
Yours sincerely
Tim Flaherty
Global HR Manager – Supply Chain”. 6
[61] Mr Sicolo was paid in lieu of his notice period.
4. The terms and status of the Drug and Alcohol Policy
[62] During the course of enterprise bargaining negotiations in 2012, a number of union delegates raised concerns about the potential impact of employees working on site having apparently consumed alcohol or drugs. These concerns were raised particularly in connection with the maintenance area of the business. After consultation with the relevant unions, including United Voice, Accolade Wines took external advice and proposed the introduction of a D&A policy.
[63] In preparation for the development of the policy, Accolade Wines purchased a number of Alcohol breath testing units and undertook some training in their use.
[64] During November 2015, Accolade Wines provided a draft policy to the relevant unions, conducted a consultative meeting and communicated the fact that it was developing the policy to the workforce more generally.
[65] At a consultative committee meeting conducted on 25 November 2014, Accolade Wines explained that its intention was to implement the D&A policy only at the Berri site for a trial period of six months commencing in or about January 2015 with a view to its implementation at other sites following a review after that time.
[66] During one of the consultative committee discussions, Mr Flaherty outlined an intention that should an employee “blow high numbers”, an alcohol testing plan might be introduced. That is, the employee would be sent home and a testing plan introduced. This was not expressly stated in those terms within the policy document; however, clause 5.1 as set out later in this decision does expressly contemplate additional testing regimes being applied in circumstances including where a breach of the policy has occurred. I also note that an early draft of what became the D&A policy contained an express obligation for employees to attend for work in a fit state to perform their duties. This was deleted from the final draft following concerns about this element from one or more of the union officials providing comments.
[67] During December 2014, the unions, including United Voice, provided feedback on the draft policy and various adjustments were made and discussed at a second consultative meeting. In late December and early January 2015, feedback was sought from the unions about a further draft. No response was provided by United Voice and this meant that it did not subsequently confirm support for the final version of the D&A policy but also did not seek to raise any further issues.
[68] The D&A policy was implemented by Accolade Wines at the Berri site on 27 January 2015, and safety tool box meetings with employees were undertaken to support and explain its introduction.
[69] In the lead up to those meetings, posters were displayed in the workplace outlining the nature of the toolbox topic and explaining some features of the D&A policy. The detail of the posters included:
“… …
This policy will be effective from 9am on Tuesday 27 January 2015.
… …
This policy will be on trial for a period of 6 months at Berri Estates from 9am on Tuesday 27th January 2015 after which time a review of the Policy will take place.
“Frequently Asked Questions
Q. What if I don‘t want to take part in alcohol/drug testing?
A. This policy applies to all employees and contractors and refusal to take part in the process may result in disciplinary action and may constitute a breach of the Policy.
Q. What if I’ve had a big night the night before my shift and I get tested when I get to work and the result is positive?
A. If you test positive and you have a blood alcohol content (BAC) of more than 0.02g%, you will be removed from your duties and re-tested in two hours and if it is found that your BAC is increasing, then you will be sent home from work and an investigation will take place. You may also be required to undertake drug and alcohol education and any further positive results may result in disciplinary action. If your blood alcohol content is decreasing, then you will be asked to wait until it is ,0.02g% before returning to your duties. If you are performing high risk work, you must have a BAC of 0.00g%.
Q. Why has this policy been introduced now?
A. This policy has been introduced as a result of requests made by workers at the Berri Estates site. There has been considerable consultation undertaken with the SEQ Committee, Employee Consultative Committee, Management and Unions. Work, Health and Safety Legislation states that Accolade Wines has a duty of care to its employees to ensure a safe workplace, and in addition, employees have a responsibility to take reasonable care for his or her own health and safety while at work.
Q. Some of us currently get together after out shift for a drink at work, will we still be allowed to do this after the introduction of the Drug and Alcohol Policy?
A. No – not unless the get together has been approved by management, there will be no alcohol consumed on site unless it has been approved by management or where structured tastings take place as part of the requirements of the job role (e.g. winemakers during structured tastings).” 7
[70] The D&A policy is a comprehensive document and it is unnecessary to set out all of its terms. It was issued with a watermark on each page stating “Trial – Berri Only”.
[71] Without overlooking the full context provided by the policy the following extracts are most apposite to the disputed issues in this matter:
“… …
1. PURPOSE
The purpose of this policy and procedure is to define Accolade Wines’ approach to reduce the likelihood of injury, damage and/or other negative effects resulting from alcohol and/or drug abuse in the work environment.
2. SCOPE
This policy and procedure applies to all workers at Accolades Wines (the meaning of ‘worker’ in this policy and procedure has the same meaning as the Work, Health and Safety Act 2011 (Cth))
… ...
Access to Accolade Wines worksites will be conditional upon agreement to comply with the requirement of this policy and procedure and any associated policies and procedures.
The obligations in this policy and procedure extend to all functions and places that are work related, e.g. conferences, meetings, work lunches, supplier/client/customer meetings, and/or functions. Any reference to work in this policy and procedure includes a work-related function. Section 7 deals with workers who are not directly employed by Accolade Wines.
No drug testing will occur within the first six (6) weeks of this policy and procedure being approved and implemented at each site. Alcohol testing may occur at any time from when the Procedure is implemented.
3. POLICY
3.1 Duty of Care
Accolade Wines has a duty of care under WH&S legislation to provide “a safe working environment” and to provide “safe systems of work” via a number of methods including documented and implemented policies and procedures. Likewise, all workers must take reasonable care for his or her own health and safety whilst at work.
3.2 Objectives
The aims of Accolade Wines in terms of implementing this policy and procedure are as follows:
• maintain a safe and healthy work environment
• compliance with all legislation relating to WH&S
• focus on rehabilitation, and
• raising awareness of the ramifications of drug and alcohol use in the workplace
4. PROCEDURE
… …
4.3 Alcohol or Substance Abuse at the Workplace
If a worker is known to be, or strongly suspected of being, intoxicated by alcohol or affected by an illegal substance during working hours, his or her direct manager or Shift Manager shall arrange for the worker to be breath and/or drug tested. The decision to test must be supported by sound proof (which could include symptoms or a combination of symptoms and / or evidence provided by a witness) and is to be supported by a second opinion, e.g. Shift Manager and other.
Section 5 of this Policy and Procedure will apply to a worker who is tested for drugs or alcohol due to a suspicion of them being intoxicated by alcohol or affected by an illegal substance.
4.4 Prescription Drugs and Medication and over the counter Medication
A worker who is taking prescription drugs or medication, including over-the-counter medication, shall immediately inform their Manager and/or the Human Resources Department where the ingestion of these substances is likely to impair an employee’s performance or where it could jeopardise safety.
4.5 On-site Testing
Alcohol testing shall be conducted by a suitably trained independent tester appointed by Accolade Wines or a suitably trained employee who has been approved to conduct testing. Drug testing shall be conducted by a suitably trained independent tester appointed by Accolade Wines. All workers shall be subjected to random testing under a program which is independent, unbiased, and accurate. Threshold levels on illegal drugs screening and conformity tests shall be determined as per Australian Standard (AS)4760. AS4760 will also be applied for cut-off levels and laboratory testing requirements. Confirmatory testing will be conducted by a National Association of Testing Authorities (NATA) approved laboratory.
4.6 Workplace Assistance for a Substance Abuse Problem
Employees with a problem relating to substance abuse may approach any of the following people within Accolade Wines for confidential advice and assistance:
• WHSIM Manager / Coordinator
• HR Department
• their immediate Manager or Shift Manager
• any Senior Manager
• Safety Representative
• SEQ Committee Member, or
• Union Representative
Furthermore, Accolade Wines provides a free, professional and confidential counselling service through its Employee Assistance Program administered by Optum for all employees and their immediate family members – please see the intranet for further information.
4.7 Failure to Undergo Testing
Where an employee fails to undergo testing, attend for assessment, or participate in a rehabilitation program as requested, the disciplinary consequences shall be explained to the employee, and the request repeated. Further failure to undergo testing shall be deemed as a breach of this policy and a failed screening result, and the employee concerned shall have the disciplinary and counselling process applied.
… …
5. RANDOM TESTING PROCESS
An independent suitably trained tester or a suitably trained employee (alcohol testing only) who has been approved to conduct testing will arrive at the work site at a time determined by the tester alone. The tester will make contact with the Shift Manager or Manager and then proceed in conducting tests. The testing may include both drug screening and alcohol testing. Should a worker return a negative result, the worker will return to work. Should a worker return a non-negative result, the process as outlined within this Policy and Procedure will be implemented by the Shift Manager or Manager (as per section 5.2 and 6).
Every worker will be expected to participate in random drug and alcohol screening tests where they have been selected to participate. Workers selected for drug testing will be required to provide a saliva sample for drug screening. Any confirmatory drug testing shall be conducted in accordance with appropriate AS4760 requirements. Breath analysis testing for alcohol will be conducted for employees selected to undergo testing.
5.1 Testing may also occur in the following circumstances:
a) to an individual who has behaved in a manner which clearly indicates a breach of the Drug & Alcohol Policy and Procedure - Australia
b) alcohol or substance abuse as referred to in sub-clause 4.3 herein
c) to an individual who puts his/her own safety or that of others gravely at risk
d) to an individual following an incident or accident which has resulted in the following:
• damage to work site infrastructure
• damage to vehicles or equipment
• a reportable incident
• injury to individual/individuals which requires medical and/or hospital attention
• loss or damage to product or quality
In the event that any of the above occur close to the end of a shift and the worker is required to stay on for testing purposes, payment for any additional time after the end of shift will only be authorised if the result of the initial screen is negative, or if confirmation is required by a second saliva test and the result of that confirmation is also negative.
For this clause only, payment will be for the time period from the end of the shift to the time the screen is completed.
Workers subject to testing as a result of circumstances listed at 5.1 (a)-(d), may be asked to attend a local medical clinic to undergo drug testing at the Company’s expense. The form of test performed by the medical clinic will depend upon what testing facilities they have available. Preference will be for saliva based tests where available.
… …
6. BREATH ANALYSIS TESTING
Where a worker returns a non-negative reading to a breath analysis, the following will apply:
Disciplinary action will also be taken if there is evidence of workers not working safely, of which proof is obtained on-the-job and documented, and this is in conjunction with a positive result from a breath analysis that exceeds 0.02g%.
Reading | Process at time of testing | Result | Process for a positive result |
=/>0.02g% And =/<0.03g% | The worker shall be removed from his/her duties for a period of up to two (2) hours for re-testing. If performing High Risk Work the employee must be 0.00g%. Any employee rostered to perform high risk work that tests >0.00g% will be offered alternative duties (if available) or asked to wait until a reading of 0.00g% is achieved. | If level increases during the stated period, worker will be sent home by taxi. If level decreases to below 0.02g%, the worker may return to work, except in the case of High Risk work which must be 0.00g%. | Arrangements will be made for an investigation. Additional Drug and Alcohol Education. A further positive test may result in a formal warning being issued. |
=/>0.031g% And =/<0.045g% | The worker shall be removed from his/her duties for a period of up to three (3) hours for re-testing. | If level increases during the stated period, the worker will be sent home by taxi. If level decreases to below 0.02g%, the employee may return to work, except in the case of High Risk work which must be 0.00g%. | Arrangements will be made for an investigation. Additional Drug and Alcohol Education. A further positive test may result in a formal warning being issued. |
=/>0.046g% And =/<0.049g% | The worker shall be removed from his/her duties for a period of up to four (4) hours for re-testing. | If level increases during the stated period, the worker will be sent home by taxi. If level decreases to below 0.02g%, the employee may return to work, except in the case of High Risk work which must be 0.00g%. | Arrangements will be made for an investigation. Additional Drug and Alcohol Education. A further positive test may result in a formal warning being issued. |
= or >0.05g% | The worker shall be removed from his/her duties. | The worker will be sent home by taxi. | Arrangements will be made for an investigation. A final warning will be issued. |
… …
8. REHABILITATION
The Rehabilitation process shall be conducted in accordance with any Injury Management, Claims Management and Rehabilitation Procedure.
The Company recognises that the misuse of drugs and alcohol are treatable conditions. Assistance with rehabilitation of workers suffering from problems related to the misuse of drugs or alcohol shall be provided through the Employee Assistance Program (EAP).
Workers with problems related to the misuse of drugs or alcohol shall be managed in accordance with the principles that apply to management of any worker with a personal or medical problem.
Individuals may be referred to either a Medical Practitioner or an EAP counsellor for assistance.
A worker’s security of employment shall not be jeopardised provided that:
• the employee agrees to participate in an approved rehabilitation program, an option made available during the life of this policy and procedure
• the worker progresses satisfactorily in an approved rehabilitation program and achieves a satisfactory job performance in a reasonable period of time agreed between Accolade Wines, the worker and the Rehabilitation coordinator
• a satisfactory job performance is maintained following completion of the rehabilitation program and the worker continues to comply with return to work conditions, as discussed and agreed
• the worker does not return a positive drug or alcohol result/confirmation on further testing.
Confidentiality of medical information shall be maintained and advice on a workers progress in a rehabilitation program shall be provided to management. Accolade Wines will seek advice from the rehabilitation provider purely on attendance and completion.
Accolade Wines shall provide drug and rehabilitation programs and Employee Assistance support to workers who voluntarily seek help for drug/alcohol related problems.
However, if the worker refuses to attend counselling/rehabilitation assistance for a dependency problem, disciplinary action may be applied.
Accolade Wines will cover costs for rehabilitation up to AU$600 per worker. All other costs are to be met by the worker, e.g. medication as prescribed by a Medical Practitioner.
The Company reserves the right to seek reimbursement of costs from a worker whose employment has been terminated as a result of non-compliance with the requirements of this procedure.
The worker will be required to use his/her leave entitlements while waiting to be admitted to a rehabilitation program, or while attending a rehabilitation program. No leave in advance will be authorised.
10. PROCEDURE EVALUATION
This procedure will be evaluated for effectiveness of both documentation and implementation on an ‘as required’ basis, or annually, whichever comes first.” 8
[72] The weight of evidence confirms that the D&A policy was being implemented on a trial basis at the Berri site, rather than simply being trialled for its potential implementation (at that site). It is also evident that the D&A policy was not intended to set out all of the terms or processes applying through any disciplinary action that might be taken for any alleged breach of the policy. This is reinforced by the terms of the policy and the material provided to the employees as part of the safety tool box meetings. 9 That approach is also consistent with the nature and terms of the written warnings provided to Mr Sicolo.
[73] The fact that the D&A policy was new and being trialled is however a relevant consideration in this matter. That is, to the extent that the intended operation of the policy was not clear and not in a final form, the consistency, clarity and fairness of the approach adopted by the employer in dealing with Mr Sicolo is a relevant consideration. The uncertainty about some elements of the application of the policy that arises in this matter is also relevant in terms of whether Mr Sicolo deliberately breached its requirements.
5. Was Mr Sicolo’s dismissal unfair within the meaning of the FW Act?
[74] Section 385 of the FW Act provides as follows:
“385 What is an unfair dismissal
(1) A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
[75] Mr Sicolo was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.
[76] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.
[77] The FW Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.”
[78] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.
[79] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to Mr Sicolo’s capacity or conduct (including its effect on the safety and welfare of other employees)
[80] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 10
[81] The failure to follow a lawful instruction which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment.11
[82] Conversely, it has been held that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries12 Beazley J also stated:
“In determining whether a refusal to carry out the lawful and reasonable directions of an employer constitutes a valid reason for termination, it is necessary to have regard to all the circumstances, including the nature and degree of the employee's conduct.” 13
[83] In Woolworths Limited (t/as Safeway) v Cameron Brown14 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,15 considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:
“In summary, a breach of an employer’s policy involving or amounting to a failure to obey a lawful and reasonable direction of the employer sufficient to justify dismissal at common law will amount to a valid reason for termination of employment within the meaning of s.170CG(3)(a) in the sense of a reason that is “sound, defensible or well-founded.” A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(b) the policy, or a direction to comply with the policy, is unreasonable.”16
[84] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,17 Deegan C determined that:
“Not every breach of a policy will provide a valid reason for termination of employment. However in circumstances where the policy is both lawful and reasonable and an employer has stressed the importance of the particular policy to the business and made it clear to employees that any breach is likely to result in termination of employment, then an employee who knowingly breaches that policy will have difficulty making out an argument that there is no valid reason for the termination.” 18
[85] I am satisfied that it was reasonable for Accolade Wines to have a D&A policy and that it was important that it be consistently applied.
[86] I have earlier found that although the D&A policy was being trialled at the Berri site it was being applied in practice. This was clearly communicated as part of the promulgation of the policy and through the written warnings and discussions that took place in connection with Mr Sicolo. As outlined earlier, the fact that the policy was operating on a trial basis is also a relevant consideration in some respects.
[87] I have also found, in effect, that the D&A policy was not intended to be definitive in relation to the disciplinary action associated with the policy. That is, it established the policy requirements and referred to disciplinary action at various points, however the policy did not expressly specify the detailed processes or the extent of the disciplinary action that might be taken. For example, the reference to a warning being given for various lower-level non-negative tests would not have been reasonably understood to mean that only a first warning would ever be given despite repeated breaches of the policy.
[88] In that regard I note that the D&A policy itself, under the heading of rehabilitation, states that security of employment will not be jeopardised provided that certain conditions, including the worker not returning a positive drug or alcohol test in subsequent testing, are met. This strongly suggests that security of employment may be jeopardised, through the application of disciplinary processes, where those conditions are not met.
[89] I also need to consider whether the disciplinary action that was taken against Mr Sicolo was consistent with the requirements of the policy and was reasonable in the circumstances. In particular, this includes the requirement for Mr Sicolo to be tested before and after each shift and for him to have a zero test result.
[90] Mr Sicolo contends that these requirements were not consistent with the D&A policy and that this is directly relevant to the whether the dismissal was harsh, unjust or unreasonable. That is, the policy makes no provision for daily testing and provides no sanction for those workers testing less than 0.02g%.
[91] Further, Mr Sicolo contends that these requirements were not, particularly in the absence of sanction from the policy, a lawful and reasonable direction. That is, the requirements represented a significant imposition on private non-working life, and the employees had a right to expect that the obligations set out in the D&A policy would be applied rather than additional requirements not addressed in that policy.
[92] Accolade Wines contends that the D&A policy contemplates that a formal warning or final warning may be given for breaches of the policy. The policy does not set out the terms of the warning and it was reasonable and appropriate that the terms of any warning be tailored to suit the particular circumstances. In the case of Mr Sicolo, the employer contends that the significant earlier test outcomes and the fact that he was required to be available for high-risk work (operating a fork-lift) meant that it was reasonable and appropriate to establish the conditions that it did through the warnings.
[93] In terms of the zero reading requirement, there was confusion amongst the employer’s witnesses about why this was required. There is reference in the policy to high-risk work and the need for a worker performing such work to achieve a reading of 0.00g%. However, this is in the context of being rostered to work on available alternative duties or being removed from duties until a reading of 0.00g% is achieved. It is a reasonable inference that the policy expects those workers who are to perform high risk work to have a reading of 0.00g%. However, there is no express provision in the policy which indicates that a worker undertaking high-risk work will be disciplined if they test above 0.00g% and below 0.02g%.
[94] There is no definition of high-risk work in the D&A policy and some of the employer’s witnesses considered that the zero reading requirement was necessary, in the case of Mr Sicolo, due to his high earlier readings.
[95] I have found that Mr Sicolo was required to be available to undertake forklift duties from time to time. It is a reasonable inference that the operation of a forklift would represent high-risk work in the present context.
[96] Although the D&A policy does not specify the precise nature or extent of disciplinary action that might be taken, it is a reasonable inference that any action would at least need to be consistent with the terms and thrust of the policy. In the case of the requirement for a zero test result, given that the policy contemplates doing other work and there is no express sanction for tests below 0.02g%, and having regard to the significant impact of that obligation upon Mr Sicolo, I do not consider that that part of the warning requirement was reasonable.
[97] However, when tested on some occasions, including on 30 April 2015, Mr Sicolo tested well above zero and the 0.02g% range that is permitted by the policy for workers not undertaking high risk work. I also note that the only tests where very low numbers were recorded, no disciplinary action was taken due to the circumstances including the absence of the written warning at one stage.
[98] In terms of the requirement to be tested before and after each shift, I consider that this was reasonable as part of a disciplinary process given all of the circumstances including the earlier breach of the policy. The application of additional testing, beyond the random tests, is also contemplated by part 5.1 of the D&A policy.
[99] A further issue is that associated with the timing of the testing on 30 April 2015 and Mr Sicolo’s contention that he had not clocked on so that he was not in breach of the policy or the additional requirements placed upon him. The applicant contends that the D&A policy only applies to a worker on the work site in respect to the actual performance of work. That is, the performance of work would include the time between clocking on and clocking off for work however Mr Sicolo had deliberately not clocked on based upon his understanding of his capacity to “self-test” before doing so.
[100] Accolade Wines contends that Mr Sicolo was attending for the purpose of performing work on 30 April 2015 and was undergoing a breath test as required by his employer as part of that process. Further, it contends that the policy applies to workers who attend the workplace and the requirement not to be under the influence of alcohol extends to all aspects of work including clocking on and preparing for the performance of work.
[101] In terms of the timing and consequences of the testing on 30 April 2015, the requirement established by the “final” warning given on 4 March 2015 was that Mr Sicolo undertakes an alcohol test before each shift and at the end of each shift. 19 This warning also required that the applicant not commence work until after the test had been conducted and the results recorded and signed off. Although the 27 March 2015 warning referred only to being tested at the “start and end of each shift” this also confirmed that the final warning would stand.20 On that basis, the fact that Mr Sicolo had not “clocked on” is not relevant, at least in terms of compliance with those requirements.
[102] The related question is whether Mr Sicolo reasonably understood, albeit erroneously, that he could be tested and not formally clock-on without being in breach of the requirements established by the formal warnings. This matter was raised by Mr Sicolo during the course of the events on 30 April 2015 and consistently during the subsequent disciplinary process.
[103] Given my earlier findings, I am satisfied that management had not endorsed (expressly or impliedly) or sanctioned the form of “self-testing” purportedly undertaken by Mr Sicolo on 30 April 2015. I am also satisfied that this conduct was not consistent with the reasonable and express requirements established by the warnings. However, in determining this matter I allow for the prospect that it was Mr Sicolo’s erroneous understanding that he could attend and be tested in this manner.
[104] To the extent that Mr Sicolo contends that the nature of his circumstances and his work arrangements forced or led to his drinking, I do not accept that proposition. There were periods during the vintage where the shift and working hours were significant. However, in the lead up to a number of the positive tests, the applicant had had significant time off and his work patterns were not particularly onerous. Mr Sicolo had also been offered counselling and related support on a number of occasions, which he had declined. Further, he had not sought the additional treatment for his back complaint, despite the knowledge that when he had approached the employer previously, this had been arranged and paid for. In any event, given the circumstances and the express warnings in place, these factors would not justify attending work in a condition where appropriate (non-negative) test results were unlikely.
[105] I have considered the accuracy of the alcohol testing undertaken by Accolade Wines. Some concerns were raised about the tests conducted on 15 March 2015 and I note in that regard that no disciplinary action was taken in respect of what was a very low result. There was no serious challenge mounted by Mr Sicolo to the general validity of the testing regime, and in any event, I am satisfied that the alcohol breath testing was conducted using appropriate and properly calibrated and maintained equipment, and techniques.
[106] There were three sets of alcohol breath tests that were in breach of the D&A policy and/or the reasonable requirements set by the employer in that context. This took place in the knowledge of those requirements and the fact that serious disciplinary action would be taken in the event of further breaches. Significant support in terms of access to leave was provided, and the offer of funded counselling and support services was made by the employer on a number of occasions.
[107] I am satisfied that there was a valid reason for Mr Sicolo’s dismissal related to his conduct. There are however some factors, such as the trial nature of the policy, the zero test requirement, and Mr Sicolo’s approach to the “self-testing” that should potentially be further considered more generally.
Section 387(b) – whether Mr Sicolo was notified of the reasons for dismissal
[108] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 21
[109] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.
[110] Mr Sicolo was notified of the reason for dismissal as contemplated by this consideration.
Section 387(c) – whether Mr Sicolo was given an opportunity to respond to any reason related to his capacity or conduct
[111] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.
[112] This process contemplated by the Act does not require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Sicolo was aware of the precise nature of the employer’s concern about her conduct and had a full opportunity to respond to these concerns. 22
[113] Mr Sicolo was given a genuine opportunity to respond to the relevant reason.
Section 387(d) – any unreasonable refusal by the respondent to allow Mr Sicolo a support person
[114] Mr Sicolo was accompanied by a support person and assisted by one or more officials of United Voice in discussions concerning the matters leading to the dismissal.
Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Sicolo – whether he has been warned about that unsatisfactory performance before the dismissal.
[115] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 23
[116] Mr Sicolo was warned in relation to his conduct. Whilst this is relevant more generally, it is not relevant under this particular consideration.
Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(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.
[117] Accolade Wines is a very large employer with access to dedicated human resource expertise.
Section 387(h) - other matters considered to be relevant
[118] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 24
[119] A dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 25 The impact of the dismissal upon Mr Sicolo is significant given his circumstances including his age, particular skills and experience, his on-going back complaint and his regional location. Mr Sicolo is also an employee with some twenty or more years of service with Accolade Wines.
[120] Differential treatment compared to treatment of other employees may also be taken into account. 26 In this case there is some evidence that the D&A policy has been applied by Accolade Wines to discipline other employees. There is no evidence about the comparability of those circumstances and no findings can be made in that regard. The fact that other disciplinary action has been taken is however consistent with my findings that the D&A policy was actually being applied in the workplace.
[121] As outlined earlier, the other factors arising from my consideration of the reasons for dismissal are also potentially relevant here. These include the fact that the D&A policy was being trialled, the “zero” test requirement, and Mr Sicolo’s approach to “self testing”. Of these factors, only the last one is potentially significant in terms of the characterisation of the dismissal.
[122] The fact that the policy was being applied, including the full extent of disciplinary action, was well understood by Mr Sicolo and was reasonable in the circumstances. The uncertainties associated with the potential application of the D&A policy, with the possible exception of the self-testing notion, were sufficiently clarified as part of the disciplinary process, at least as far they impacted in practice upon Mr Sicolo’s circumstances and conduct.
[123] The “zero” testing requirement, whilst unreasonable, did not materially impact upon the events or the reasons for dismissal.
[124] Mr Sicolo’s approach to self-testing does not mean that he did not breach the requirements of the warning. Despite knowing the requirements that were set out in the formal warnings and confirmed in a number of related discussions, he drank the night before with the likelihood that this would mean that he could not work on 30 April 2015. Mr Sicolo attended for work and when tested as required by the employer he twice produced a significant positive result in breach of the requirements. However, I also allow for the notion that Mr Sicolo’s actions may not have been an intended breach of the employer’s requirements, at least in that limited sense. I also note that the termination of the applicant was apparently treated by Accolade Wines as being a dismissal on notice (or pay in lieu) rather than as serious and wilful misconduct warranting dismissal without notice.
Conclusion on nature of dismissal
[125] I have weighed all of the factors and circumstances of this application.
[126] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,27 the Full Bench observed:
“[24] ... ... The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
[127] The disciplinary process and the dismissal were handled by Accolade Wines in a procedurally fair manner.
[128] The impact of the dismissal upon Mr Sicolo is a significant factor in this case and as suggested above, this must be weighed along with all of the relevant considerations. These include the sequence of serious breaches of the express and reasonable requirements, the express warnings about the consequences of non-compliance, the repeated offers of support and assistance, and the problematic basis of Mr Sicolo’s approach to ”self-testing” on the day of the final testing.
[129] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 28
[130] The Commission is directed to ensure a fair go all around. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:
“(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.”
[131] I have empathy for the circumstances now facing Mr Sicolo. However, on balance, having regard to the provisions of s.387 of the FW Act as applied in this case, I am not persuaded that Mr Sicolo’s dismissal was harsh, unjust or unreasonable.
6. Conclusion and orders
[132] As a result, the dismissal was not unfair within the meaning of the FW Act. This application must therefore be dismissed and an order 29 to that end is being issued with this decision.
COMMISSIONER
Appearances:
S Blewett of United Voice, for Mr Sicolo.
N Swan of counsel, with permission, for Accolade Wines Australia Limited.
Hearing details:
2015
Adelaide
19, 20 and 21 August.
1 The evidence of Mr Haeft.
2 Exhibit R4 – witness statement of Mr Haeft at par 42.
3 TLH4 – attached to exhibit R4 – witness statement of Mr Haeft.
4 Ibid.
5 TLH8 – attached to exhibit R4 – witness statement of Mr Haeft.
6 TJF9 – attached to exhibit R13 – witness statement of Mr Flaherty.
7 TLH1 – attached to exhibit R4 – witness statement of Mr Haeft.
8 TJF6 – attached to exhibit R13 – witness statement of Mr Flaherty.
9 TLH 1 – attached to exhibit R4 – witness statement of Mr Haeft.
10 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].
11 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.
12 [1995] IRCA 499 (14 September 1995).
13 Cf: Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J. See also Schreier v Austal Ships Pty Ltd, Print N9636.
14 PR963023 (26 September 2005) (footnotes omitted).
15 PR928970 (19 March 2003) at [14].
16 Woolworths v Brown at [34].
17 [2009] AIRC 893 (16 October 2009).
18 Lion Nathan at [54].
19 TLH4 – attached to exhibit R4 – witness statement of Mr Haeft.
20 TLH8 – attached to exhibit R4 – witness statement of Mr Haeft.
21 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
22 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].
23 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.
24 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.
25 See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
26 Davis v Collinsville Coal Operations (unreported, AIRCFB, Harrison SDP, McCarthy DP, Redmond C, 19 November 2004) PR953370 [31].
27 [2011] FWAFB 1166.
28 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685; Miller v University of New South Wales (2003) 132 FCR 147 and [13].
29 PR572932.
Printed by authority of the Commonwealth Government Printer
<Price code G, PR571264>
15
0