[2018] FWC 250

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 394—Unfair dismissal

Jarrod Eather
v
Whitehaven Coal Limited t/a Narrabri Coal Operations
(U2017/4569)

DEPUTY PRESIDENT SAMS

SYDNEY, 11 JANUARY 2018

Termination of employment – underground mine worker – summary dismissal for serious misconduct – application for reinstatement – alleged breaches of employer’s drug and alcohol policy – random drug testing – positive drug detection result – second positive drug detection result – different ‘cut off’ levels – applicant claimed he was confused by the policy and management directions – conflicting evidence – denial of conduct – applicant’s claim of minimal drug use improbable – belated claim of cannabis use for pain relief – harshness of dismissal – applicant in breach of employer’s policy – serious risk to his own and other employee’s safety – no procedural unfairness – dismissal neither ‘harsh, unjust or unreasonable’ – application dismissed.

[1] Whitehaven Coal Limited (‘Whitehaven’) operates an underground coal mine near Narrabri, New South Wales (‘the mine’). The mine employs around 370 employees. As the only underground mine in the area, it is a major employer in the region. Mine employees are required to operate heavy machinery and other complex equipment, including diesel and drilling equipment, and driving shuttle cars. It is trite to observe that underground coal mining is an inherently dangerous industry, with strict safety rules and regulatory oversight. Unsurprisingly, in this context, all employees at the mine are subject to random drug and alcohol testing and the employer has a detailed and comprehensive policy known as ‘Whitehaven Coal (WHC) Standard – Alcohol and other drugs’. I shall come back to this policy in due course.

[2] Mr Jarrod Eather had worked at the mine since 4 October 2011 (under its previous operator), and had been employed by Whitehaven since 19 December 2013. Mr Eather was born and raised in Gunnedah. He is 42 years old. He and his partner (who does not work) have six children ranging in age from 9 to 16 years old. His parents and extended family all reside in the local area. Mr Eather was employed as an underground production mine worker, under the terms and conditions of the Whitehaven Underground Operations Enterprise Agreement 2012 [AE895322] (‘the Agreement’). Mr Eather’s remuneration per week was around $3,365.41.

[3] On 12 April 2017, Mr Eather was summarily dismissed for serious misconduct after a positive test result for THC (cannabis) on 6 April 2017. His letter of termination was expressed as follows:

‘We refer to the disciplinary meeting with you held on Thursday 06th April 2017 where you were issued with a formal warning letter concerning your breach of the Whitehaven Coal Drug & Alcohol Standard, and where you were advised of the requirement to submit to a further drug test to prove your fitness for work.

The test sample you provided on 06 April 2017 was analysed by SafeWorks Laboratories and the final result was a “Positive” test for Delta -9-THC-COOH (ug/18) You were presented with the final test result at our meeting today 12 April 2017.

You were advised the “positive” test result constitutes a second serious breach of the Whitehaven Coal Alcohol & Drug Standard and may result in the termination of your employment. You were asked to provide an explanation for the breach before a final decision regarding appropriate disciplinary action is made by management.

We have considered the explanation that you have provided to us in relation to this incident. However, due to the seriousness of the breaches and the potential health and safety consequences of your conduct, the decision has been made to terminate your employment with immediate effect for serious misconduct.

In accordance with your employment contract, and clause 11.2(a) of the Enterprise Agreement, you are not entitled to any notice. Your last day of work is Wednesday 12^th April 2017.

Payment for any accrued entitlements will be made to your nominated account within seven working days.’

[4] On 27 April 2017, Mr Eather (hereinafter referred to at the ‘applicant’) filed an application, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), in which he seeks orders from the Fair Work Commission (the ‘Commission’) for reinstatement and lost remuneration. He claims his ‘dismissal was unfair as there was no conduct on my behalf that justified my termination of employment’.

[5] In accordance with my usual practice, I conducted a telephone conference with the parties on 18 July 2017. However, given that Whitehaven (hereinafter referred to as the ‘respondent’) strenuously resisted the applicant’s claim for reinstatement and as this was the only remedy the applicant sought, the matter was listed for arbitration in Tamworth with directions issued for the filing and service of witness statements and outlines of submissions.

[6] At the hearing on 23 August 2017, Mr K Endacott, Industrial Research Officer of the Construction, Forestry, Mining and Energy Union – Mining and Energy Division, Northern Mining and NSW Energy District Branch, appeared for the applicant and Mr A Britt of Counsel, with Mr A Bland, Solicitor, BlandsLaw, were granted permission pursuant to s 596 of the Act (not opposed by Mr Endacott) to appear for the respondent. At the parties’ request, final submissions were heard in Sydney on 29 September 2017.

THE EVIDENCE

[7] The following persons provided statements and oral evidence in the proceedings:

• Mr Matthew Hall, Safety and Training Coordinator for the respondent;

• Mr Peter Taylor, HR Superintendent for the respondent;

• Mr Gerald Linde, Mine Manager for the respondent; and

• the applicant.

Documentary evidence

[8] Mr Britt tendered the following documents in support of the respondent’s case:

• United States National Highway Traffic Safety Administration Drugs and Human Performance Fact Sheet;

• Pathology Toxicology Report by Douglass Hanly Moir; and

• Whitehaven Coal Standard – Alcohol and other drugs (last revised 11/4/2016) (the ‘Company Standard’).

[9] I shall return to the details of these documents when they were referred to in the cross-examination of witnesses and when I later come to my consideration of the issues in this case.

Mr Matthew Hall

[10] Mr Hall was Acting Safety and Training Superintendent in March 2017. On 15 March 2017, during the afternoon shift, he was informed that the applicant had recorded a ‘non-negative’ result for THC following a random drug test using a site screening cup method. Under the respondent’s process, the employee is stood down and driven home. When Mr Hall drove the applicant home, he did not seem surprised about the test result, and had said ‘Yeah I’ve had a smoke recently.’ During the trip, the applicant asked, ‘what happens now?’ and Mr Hall offered to send him a copy of the Company’s rules and procedures. Mr Hall denied telling the applicant he did not know what would happen next.

[11] Mr Hall said he was aware the applicant had a history of using marijuana, as he had admitted this to him in 2014. Mr Hall attached to his statement a referral from the Gunnedah Health Centre, dated 17 April 2014, which had the following entry:

‘Other social history:

Regular marihuana [sic] use. Beer – schooners 3 some days.’

[12] Mr Hall spoke to the applicant by phone on 20 March 2017 to ask if he wanted to take annual leave or leave without pay, while stood down. The applicant acknowledged receipt of the Company Standard.

[13] On 23 March 2017, Mr Hall received the Safe Work Laboratories (‘Lab’) results from the sample taken from the applicant on 15 March 2017. He informed the applicant the positive result was 65 µg/L, while the Standard cut-off was 15 µg/L. Under the Company Standard, the applicant had three weeks to return a negative result.

[14] On 27 March 2017, Mr Hall phoned the applicant. When the applicant said he was unsure if the second test result would be positive or negative, Mr Hall offered for him to come in to self-test using the screening cups. The applicant did so the next day. The applicant queried why the cut-off was 15 µg/L, when the onsite screening cup test cut-off was 50 µg/L. Mr Hall explained that onsite screening can only detect THC levels above 50 µg/L. However, the cut-off is 15 µg/L if the onsite cup test is sent to the Lab for follow-up analysis. The Company Standard requires a second test result under 15 µg/L, before an employee can return to work.

[15] The applicant undertook a self-test on 28 March 2017, which returned a non-negative result. This sample was sent to the Lab for confirmation. Mr Hall denied telling the applicant that if he passed the self-test screening, he could return to work. The Company Standard requires all further tests to go to the Lab for confirmatory testing. This was always going to be the case. The applicant had told him he had been self testing at home. Mr Hall agreed he gave the applicant some screening test cups to take home to save him buying them from the chemist.

[16] On 3 April 2017, Mr Hall received the Lab test results from the screening test of 28 March 2017. It recorded a 48 µg/L result. Mr Hall confirmed the Company Standard requires that an employee must present for work within three weeks of the first positive result, at which time the employee must return a negative result. Mr Hall believed the applicant knew he had to provide a negative result after three weeks of being stood down.

[17] The applicant returned to work on 6 April 2017 and undertook a further test. He also attended a meeting that day with Mr Hall, Mr Linde and the applicant’s support person Mr Nic Lidwinski. The applicant was informed that his test result that day would be referred to the Lab. If the result was negative, he could return to work; if the result was a second positive (over 15 µg/L), there may be further disciplinary action. Mr Linde handed the applicant a warning letter which read:

‘This letter serves as a formal written warning concerning your breach of the Company’s Alcohol and Other Drugs Policy Standard.

This letter has been given to you at our meeting today 06/04/2017, the purpose of which was to discuss your serious breach of the Whitehaven Group Alcohol and other Drugs Policy Standard which includes the following:

On 15/03/2017 you provided non-negative drug screen test results for Delta -9-THC-COOH following an onsite random drug test. In accordance with Alcohol and other Drugs standard your sample was sent a pathology lab for confirmatory analysis The final test result following analysis by SafeWork Laboratories was Delta -9-THC-COOH (65 µg/L) The cutoff concentration under section 5 of AS/NZ 4308:2008 is 15 µg/L. You have therefore returned a “POSITIVE” result which is in breach of the Whitehaven Coal Group Alcohol and other Drugs standard

Breaches of the companies [sic] Alcohol and Drug Standard have the potential to affect the health and safety of the workplace and will not be tolerated. We operate in a dangerous and demanding environment. You have a key responsibility, along with everyone else in the company, to contribute to the promotion of a safe and healthy workplace. Your breach of the Alcohol and Drug Policy constitutes a failure of your responsibility and a serious risk to yourself and to other workers [sic] safety.

As advised by Safety department and in accordance with the Alcohol and Drugs Standard you are required to undertake a further drug screening test today, to determine your fitness for work. The test sample will be referred to SafeWork Laboratories for analysis.

If the laboratory result is negative then you will be allowed to return to your normal duties. If the result is a second positive test then you will be subject to further disciplinary action, which may result in the termination of your employment’

[18] After Mr Linde read the letter, the applicant said he understood its contents and he was very sorry. The 6 April 2017 screening cup test initially returned a negative result, but when referred to the Lab, it disclosed 18 µg/L. Mr Hall said he had no further involvement in the matter.

[19] In a reply statement, Mr Hall denied telling the applicant that the respondent was only going to rely on the screening cup test. Subsequent tests were always going to be sent to the Lab. Mr Hall insisted he never told the applicant, or gave him the impression, that he could return to work if he passed the screening cup test. He denied telling him to be prepared for the night shift if he passed the test, because the applicant would have been on day shift.

[20] In cross-examination, Mr Hall was referred to cl 3.2 of the Company Standard, which provides as follows:

‘3.2 COMPANY REQUIREMENTS

No worker may work at Whitehaven Coal where their fitness for work may be adversely affected by the presence of alcohol or other drugs.

For the purposes of this standard, the current prescribed limit for alcohol is 0.00 grams of alcohol per 100ml of blood.

For the purposes of this standard the current prescribed limit for other drugs is as detailed in AS/NZ 4308. Presently these are:

Substance	Micrograms/litre
Cannabis metabolites	50
Opiates	300
Benzodiazepines	200
Cocaine metabolites	300
Methyl amphetamines	300

If a screening test exceeds these levels, it is then tested using an accredited laboratory that provides the final confirmatory result. AS/NZ 4308:2008 sets out the confirmatory test cut-off levels.’ (My emphasis)

Mr Hall said that despite the 50 µg/L referred to in the chart, the cut-off levels are the confirmatory standard mentioned in the last sentence above, being cut-off levels of 15 µg/L.

[21] Mr Hall’s evidence was that the two different ‘cut-offs’ are to be read in conjunction with cl 3.7 of the Company Standard, which states:

‘3.7 RETURN TO WORK FOLLOWING A NON-NEGATIVE TEST OR POSITIVE TEST

Any worker returning a result above the prescribed limit for alcohol, or at, or above, the prescribed limits for other drugs, will be required to submit to another screening test for alcohol or other drugs upon returning to work. If the test results are negative, they may be allowed to resume normal duties. This may occur prior to the results of an accredited testing laboratory confirmation testing being available.

Upon returning to work the worker must provide a negative result and the worker must demonstrate, to the satisfaction of the manager that they are fit for work. Whitehaven Coal will arrange for the testing to occur at work. The worker must present for work within a 3 week time period for testing to occur.

Subsequent positive results, after the initial positive result, will be considered in the disciplinary process.’

[22] Mr Hall explained that when the applicant presented for work on 6 April 2017, he returned a non-negative result (48 µg/L) on the screening cup measure. However, cl 3.7 requires all testing subsequent to a first positive result to be sent to the Lab for confirmation of the results. Mr Hall acknowledged that the cut-off of 15 µg/L is not mentioned anywhere in the Company Standard. Nevertheless, it is well understood to be the 2008 Australian Standard.

[23] Mr Hall denied the suggestion that the applicant was forced to self-test. He had offered him self-testing, knowing the applicant was doing it at home anyway. He had initially called him to discuss what leave he would like to utilise while being stood down. (He took annual leave for the stand-down period.) Discussion then turned to his doubts as to whether he would pass any future tests. Mr Hall recalled the applicant being unsure about the line measurements of the screening cups. Mr Hall insisted the applicant took a number of testing cups home with him on 28 March 2017. They were not forced on him. In fact, he offered them to save him money, by not purchasing them from the chemist. While Mr Hall understood the screening cup test would not detect below 50 µg/L, at this time, the applicant was using the cups and still testing above 50 µg/L. Mr Hall insisted he never told the applicant if he passed the screening cup test he could return to work. Rather, the applicant was unsure if he was under the higher cut-off anyway, and he was not.

[24] Mr Hall denied not telling the applicant the pass level was under 15 µg/L. Mr Hall was referred to cl 3.5.2 of the Company Standard, which reads:

’3.5.2 MANAGEMENT OF OTHER DRUGS TEST

Where a drug other than alcohol is detected as a result of an initial screening test, a sample will be prepared and dispatched to an accredited testing laboratory for confirmatory analysis in accordance with AS/NZ 4308:2008.

The worker and their supervisor will be informed of the test result. The worker will not be permitted to commence or return to work for the remainder of that shift. The worker will be offered transport to their accommodation.

Refusal to be transported home may be treated as serious misconduct, [sic] If the person does refuse to returned home when the test result is above the cut-off limits the police will be notified.

Where a non-negative result is returned and it is consistent with a worker’s declaration of prescription medication (which occurs after the test), then the supervisor will make a fitness for work assessment. The fitness for work assessment will made by the supervisor must take into consideration any medication declared that may adversely affect the worker’s fitness for work. In determination of the workers’ [sic] fitness for work, the Supervisor may consult with relevant personnel such as the Health and Safety team who may arrange for further assessment and opinion from a Medical Practitioner or relevant Health Professional. If, in the supervisor’s opinion, the worker is fit for work they may return to work and resume normal duties. If in the supervisor’s opinion the worker is unfit for work or further information is required, they will not be permitted to commence or return to work for the remainder of that shift. The worker will be offered transport to their accommodation.

That laboratory analysis will either confirm a positive result or indicate a negative result. If a positive result is recorded, the worker will be managed in accordance to section 3.6.

Where it is confirmed by an accredited testing laboratory analysis that the test results are consistent with the declared prescription medication in type and quantity, then the test will not be deemed or recorded as positive.’

Mr Hall confirmed that this clause demonstrates that Whitehaven does not have a zero tolerance policy towards drugs. This is so because an initial positive result means that the employee has three weeks to return a negative result. However, the first result remains on the employee’s personnel file for five years. Mr Hall believed the first positive result was confirmed, in writing, to the applicant.

[25] Mr Hall said that when the applicant presented on 6 April 2017 and failed the test, he was being dealt with under cl 3.7 of the Company Standard, which meant he had to return a negative result. He agreed the 6 April 2017 result was 18 µg/L. If he had been tested using the screening cup test, it would not have detected the presence of cannabis. Mr Hall accepted he did not give a copy of this report to the applicant.

[26] In answer to queries from me, Mr Hall said that if an employee says ‘I feel I can’t pass the test in three weeks’, it would be regarded as a failure to provide a sample according to the Company Standard (which uses the word ‘must’). Mr Hall acknowledged that the applicant’s results were on a downward trajectory from 65 to 48 to 18 µg/L over three weeks. However, Mr Hall understood that an employee would not be allowed a further week to get below 15 µg/L.

Mr Peter Taylor

[27] It was Mr Taylor’s evidence that the respondent takes a number of steps to ensure that its policies and procedures, including the Company Standard, are up to date and available to all employees. These include:

• all policies and procedures are available to all employees on the respondent’s intranet;

• at inductions for every employee and contractor, the training includes specific information about the Company Standard, the random drug and alcohol testing using site screening tests, that these tests are indicative only and drug and alcohol tests may be confirmed by laboratory testing;

• after induction, every employee must acknowledge having been taken through the drug and alcohol policy (the applicant acknowledged this on 4 October 2011);

• test results remain effective for five years;

• there is a specific procedure for an employee being permitted to return to work following a non-negative or positive result;

• each positive result is a cause for disciplinary action;

• employees are advised of, and must acknowledge that they have viewed, any updates or changes to policies (the applicant acknowledged he had viewed an update to the drug and alcohol policy on 19 March 2013); and

• Tool Box meetings also focus on Company policies. One such meeting on 12 January 2017, attended by the applicant, dealt with synthetic drug testing being included in random drug testing.

[28] Mr Taylor set out his understanding of the processes where a screening cup test returns a non-negative result, above 50 µg/L. The sample is then forwarded to the Lab for confirmatory testing according to the AS/NZ Standard. After Mr Hall advised Mr Taylor of the applicant’s non-negative result on 15 March 2017, he and Mr Linde discussed the issue. They agreed it was a straightforward matter to be dealt with under the Company Standard.

[29] Mr Taylor set out the following conversation with the applicant on 3 April 2017 after he became aware that the applicant’s latest Lab result, of 28 March 2017, was 48 µg/L:

‘[Mr Taylor:] Hi Jarrod it’s Peter Taylor here. I’m calling you because this is a serious HR matter and you have already breached the safety standard. The self-test is still showing positive. If you come in for the three week test you need to be able to show a clear result.

[The applicant:] Yeah I know.

[Mr Taylor:] Matt gave you a copy of the policy didn’t he?

[The applicant:] Yeah

[Mr Taylor:] You could lose your job if you return a second positive test – it’s still at a pretty high level.

[The applicant:] Yeah I understand that. I’m running and drinking lots of water to try to get it out of my system.

[Mr Taylor:] When you come in it will be the same process – you will take the screening test and it goes off to the lab. If it’s positive you could lose your job.

[The applicant:] Yeah I’m hoping I’ll be right.’

[30] After the applicant returned a final positive test result on 6 April 2017, Mr Taylor and Mr Linde met with the applicant and his support person, Mr Tom Quartermass, on 12 April 2017. Mr Taylor and Mr Linde had agreed there was a valid reason for the applicant’s dismissal, unless he could provide a response or reason for the positive test.

[31] It was Mr Taylor’s evidence that when the applicant was asked for his response, he blamed Mr Hall for telling him that if he passed the screening cup test, he could go back to work. Mr Linde believed the applicant knew the test result would be sent to the Lab, and if it was positive, he could be dismissed. The applicant responded that it was only a bit over 15 µg/L, he had six kids and could not afford to lose his job. Mr Taylor told him that his children were not the issue. After Mr Linde asked him again to explain his position, the applicant replied:

‘I am a good employee, Matt Hall said I would be fine, I have responsibilities with a large family.’

[32] Mr Taylor and Mr Linde left the room to discuss the applicant’s response. They returned to inform him he would be dismissed for serious and wilful misconduct.

[33] In a reply statement, Mr Taylor rejected the applicant’s version of their conversation on 3 April 2017 (see para [29] above). He agreed the applicant had said he was running and drinking water, hoping that he would be OK. Mr Taylor said that at no point did the applicant mention using marijuana to manage pain from a work-related injury.

[34] In cross-examination, Mr Taylor said he had understood the applicant was verbally (not in writing) advised of the 15 March 2017 result before the 6 April 2017 meeting. This was because he was stood down and not at work. Nevertheless, a copy of his results was given to him on 6 April 2017. Mr Taylor agreed that the Company Standard was not a zero tolerance policy. It was more like a ‘two strikes’ policy.

[35] Before the 6 April 2017 meeting, Mr Taylor was aware the applicant had been self-screening with cups given to him by Mr Hall. Mr Taylor said that when he spoke to the applicant on 3 April 2017, he told him the sample would be sent to the Lab. He could not recall if he mentioned the 15 µg/L cut-off. Mr Taylor agreed that the 15 µg/L cut-off is not mentioned in the Company Standard, but the reference is to the 2008 Australian Standard, which could become zero if the available technology could detect THC levels lower than 15 µg/L.

[36] Mr Taylor acknowledged that while the figure of 15 µg/L was mentioned in the 6 April 2017 warning letter, there was no document given to the applicant prior to then, which referred to the 15 µg/L cut-off. However, he believed the applicant was told about it when the result came back. The intention had been to give the applicant the warning letter before he undertook the test, but the tester turned up early and the timing was reversed. Mr Taylor found out about the first test result (65 µg/L) on 23 March 2017. The warning letter was not issued at that time because the applicant was stood down and therefore not at work.

[37] While Mr Taylor understood the applicant was self-testing during the three-week stand-down period, the applicant had said that ‘Matt told me it would be fine.’ The applicant did not say he attended on 6 April 2017 because he was returning negative results (with the cups) and thought he was fine to return to work. Mr Taylor had told him it did not really matter what Mr Hall had said; the issue was the second test was above the National Standard. Mr Taylor denied there was a pre-prepared termination letter before the 12 April 2017 meeting. It was a template in the respondent’s system which he later amended and finalised.

[38] Mr Taylor rejected the applicant’s evidence that he was unaware of the purpose of the disciplinary meeting. He knew, and Mr Taylor had told him, that if he returned a second positive result then he may be terminated. Mr Taylor said there were two breaks in the disciplinary meeting - not one as claimed by the applicant. In the second break, Mr Taylor finalised the termination letter on his computer.

[39] Mr Taylor acknowledged that in his time with the respondent, no other employee had failed a second test, notwithstanding many employees’ samples had been sent to the Lab for confirmation. These employees had received warnings which remained ‘active’ for five years.

[40] Mr Taylor emphasised the seriousness of the applicant’s conduct. It was never the case that employees who tested below 50 and above 15 µg/L could simply go back to work. The onsite technology prevented the respondent from knowing if the level was below 50 µg/L. If the technology changed, the policy would change. The screening cup tests only show results above 50 µg/L, and every sample above that goes to the Lab to get an accurate result. If there was a non-Lab measure to test for the 15 µg/L cut-off, the respondent would use it. However, at the present time, it is not practical to send every result to the Lab.

[41] Mr Taylor accepted that it was possible, if the applicant had more time, and had not used cannabis again, his result may have gone below 15 µg/L. While he recognised a descending trajectory in the three-week stand-down period, it was not enough. The three week period was mandatory.

[42] Mr Taylor understood the applicant had two earlier verbal warnings, which were on his personnel file. These warnings were not included in the respondent’s evidence. In re-examination, Mr Taylor was shown the earlier warning letters dated 16 September 2014 and 23 December 2014, one of which had been signed by the applicant as a verbal warning.

[43] In answer to my question, Mr Taylor said that if the respondent had a reasonable belief that someone was above 15 µg/L, but had tested negative in the on-site cup screening, the sample could still be sent to the Lab for confirmatory testing.

Mr Gerald Linde

[44] In his statement, Mr Linde described the operations of Whitehaven and set out the information conveyed to him about the applicant’s drug screening test on 15 March 2017 and its confirmation at 65 µg/L. Mr Linde attended the two meetings with the applicant and his support person on 6 and 12 April 2017.

[45] Mr Linde’s version of the conversation on 12 April 2017 was as follows:

‘[Mr Linde:] Jarrod, the lab has returned a positive result of 18 µg/L against a cut off level of 15µg/L. This is a breach of the policy and your second positive result. This is a show cause meeting as to why your employment should not be terminated.

[The applicant:] Well Matt told me it was all ok and it was about the urine cups and if I passed that I could come back. I have six kids and I can’t afford to lose my job.

[Mr Linde:] You had a copy of the policy and in accordance with the policy you have returned a second positive result at the time required being three weeks to return to work. We are considering termination of employment based on breach of mine health and safety standard – I would like you to explain why we should retain your employment?’

[46] After an adjournment of five minutes, the applicant said:

‘Matt Hall said I would be fine. I am a good employee, better than those others. I have responsibilities with a large family.’

After a second adjournment, the applicant was dismissed.

[47] It was Mr Linde’s evidence that given his positive results for illicit drug use, if the applicant was reinstated he would pose a risk to the health and safety of all employees. It would demonstrate to employees and the general public that the respondent does not follow its own policies or adhere to its zero drug tolerance.

[48] In a reply statement, Mr Linde said that the termination letter was not given to the applicant until after the second break in the 12 April 2017 meeting. Mr Linde said he made it clear that the cut-off was in accordance with the Australian Standard. He said it was irrelevant whether the applicant failed the test deliberately. Mr Linde denied saying he did not care about the applicant’s family or personal life. Rather, he said that his family situation was not the issue. There was no discussion about the applicant using marijuana for pain management, related to a post work-related injury.

[49] In cross-examination, Mr Linde said the Company Standard applied as a corporate policy across the Whitehaven Group. He said that the policy has different types of testing according to the steps in the process.

[50] Mr Linde was unaware of, and not involved in the process for selecting employees to be randomly tested. (He had been tested many times.) Mr Linde said the screening cup test is used randomly or where a supervisor, or another employee, suspects an employee may be under the influence of drugs or alcohol. Mr Linde further explained that an employee can also self-test and then not present for work; but once an employee logs on for work, they can be subject to a random test.

[51] Mr Linde accepted that the respondent does not have a zero tolerance policy (notwithstanding paragraph 14 of his first statement). He explained that that if an employee returns a first non-negative result, the disciplinary process is initiated. The employee is stood down, is given a warning and has three weeks to return a clear result. If there is a second positive result, termination of employment is an option. At all times, the matter is considered a serious breach of policy.

[52] Mr Linde understood the applicant had been taking steps to clear his system, and had bought, and been given test cups to self-test. However, despite this, he failed the second result after three weeks, after retaining significant levels of cannabis in his system. He was dismissed for a fundamental safety breach at the mine. Mr Linde believed that in the last few years, no other employee had returned a positive result after three weeks. Mr Linde was referred to relevant sections of the policy, which he considered to be part of a disciplinary process.

[53] Mr Linde agreed the applicant was given the warning letter on 6 April 2017, despite it being related to the first test on 15 March 2017. This was because the applicant was not at work and if discipline is involved, it is dealt with face-to-face and with a support person. Mr Linde was unaware the applicant attended the mine on 28 March 2017. He agreed the level of 15 µg/L is not mentioned in the Company Standard, but it refers to the laboratory testing being in accordance with the Australian Standard. Mr Linde knew the applicant was self-testing and returning negative results, but the Company Standard requires Lab testing in the applicant’s circumstances.

Mr Jarrod Eather

[54] After setting out his personal, family and work background, the applicant said he had never received a formal warning during his employment at the mine, since October 2011.

[55] The applicant did not dispute the circumstances surrounding the screening cup test he undertook on 15 March 2017 at the commencement of afternoon shift. He had received a non-negative result for this sample. When he was driven home by Mr Hall, he asked what was to happen next. Mr Hall was not sure, but there was a policy dealing with the matter. A few days later, he received a copy of the Company Standard. About a week later, Mr Hall phoned him to advise he had a ‘fail’ confirmation. However, he was neither told the exact level, nor given a copy of the Lab results. When Mr Hall told him he had three weeks to pass the test, the applicant told him he had been self-testing and had failed. He told Mr Hall he ‘would do whatever you want me to do’. Mr Hall arranged for him to do a test on 28 March 2017. He undertook the test that day and it returned a non-negative result. He went to inform Mr Hall in his office. Mr Hall offered him three test cups and said:

‘[H]ere are some testing cups, just take them test yourself when you pass, you are fine to come back and commence work underground as normal.’

[56] The applicant claimed that, at no time on 28 March 2017, was any reference made to the difference between 50 µg/L and 15 µg/L. He believed that once he passed the screening cup test, he would be fine to return to work. He self-tested every day, or second day, and was clear on the third test on 1 April 2017. He said he had been running and training in an attempt to sweat out any residual THC.

[57] The applicant referred to a call from Mr Taylor (see Mr Taylor’s version outlined at paragraph [29] above). Mr Taylor told him his results were high and he had three weeks to attend the site and pass a second test. While not told his actual result, the applicant told Mr Taylor that he ‘did not think it was a high result, if it was, it would take months for it to get out of my system not a couple of weeks’. Mr Taylor told him his breach was a serious matter and if he did not pass, he could lose his job. Mr Taylor did not explain that there was another form of testing to the screening cup test, or that there was a different cut-off for screening cup tests to any other test. He simply said he needed to pass when he attended the site.

[58] The applicant claimed that when Mr Hall rang him to direct him to attend the site on 6 April 2017, he had added ‘be prepared to work your night shift if you pass the test’. When he undertook the test, the tester told him he had passed. Mr Hall had told her to send the sample off for further testing. The applicant claimed this was the first time he had heard of the results having to be sent off for further testing. He asked the tester what this meant. She had said she was surprised when Mr Hall told her the results must come back less than 15 µg/L, even after passing the site cup screening test. The applicant then went to look for Mr Hall, but could not find him.

[59] In respect to the 6 April 2017 disciplinary meeting, it was the applicant’s evidence that this was the first time he had been informed of the 65 µg/L level for the 15 March 2017 test, and that the subsequent test sample would be referred to the Lab. Up to this point, he had believed and acted on the basis that he could return to work if he passed the 50 µg/L screening cup test. He then left the meeting. He later received a call from Mr Hall to require him to attend a meeting on 12 April 2017. When he asked for his results, Mr Hall declined to provide them.

[60] The applicant’s version of events at the 12 April 2017 meeting differed from Mr Linde’s and Mr Taylor’s evidence in the following respects:

1. Mr Linde had a pre-prepared letter of termination in front of him at the meeting.

2. The applicant told Mr Linde he had not breached the policy. Mr Hall had given him test cups and told him he could return to work if he passed the screening cup test.

3. He told Mr Linde he did not know where 15 µg/L came from and had never been told about that cut-off.

4. Mr Linde did not care about the applicant’s personal life or family.

5. He had told Mr Linde he was not a ‘full time drug taker’. He had been having problems with his neck and prescribed painkillers were affecting his sleep. In ‘desperation’, he had smoked some marijuana, as it helped him to rest and ease the pain.

[61] The applicant said he received an average wage of around $3,365.41 per week when employed by Whitehaven and, while he was looking for alternative employment, there were no other underground coal mines in the local area. He hoped for a casual job in the western coal fields, near Mudgee. He may have to leave his family and work away from home, or relocate his family away from friends and relatives. The applicant has received no income since his dismissal. At the time of making his statement, he had been out of work for 16 weeks and had lost $53,846 in income.

[62] In response to Mr Hall’s inclusion of his medical history, disclosing he was a ‘regular marijuana user’, the applicant said this was inappropriate because the respondent had no right to access his medical records. In any event, the reference to ‘regular marijuana user’ was an historic reference from 20 years ago, which had remained on his medical file ever since. It did not relate to his current medical status. The applicant claimed that in 2014, he had mentioned to Mr Hall that he had used marijuana, 10 years earlier.

[63] The applicant denied he received the Lab result for his 65 µg/L sample. Mr Hall had never mentioned a cut-off of 15 µg/L, and he was not aware of this until 6 April 2017. He denied Mr Hall had told him his 15 March 2017 sample would be sent to the Lab, which would require a result under 15 µg/L to pass. The applicant denied telling Mr Hall he was using test kits. He had only undergone a single test. He was not informed of a different test, and would not have relied on the screening cups, if they had no application. The applicant claimed he had not taken any drugs since the weekend of 11 and 12 March 2017.

[64] The applicant said there was only one adjournment in the 12 April 2017 meeting (not withstanding he acknowledged two breaks earlier in his statement). The applicant reaffirmed his version of the conversation with Mr Taylor on 3 April 2017. He denied saying that ‘it was Matt’s fault’. Rather, he was led to believe that if he passed the screening cup test, he could return to work that night.

[65] Exhibit C, tendered on the second day of hearing, revised the applicant’s average income to $2,794.73 per week, plus $243.02 in superannuation, resulting in a loss since dismissal of $68,275.26, plus $5,937.03 in superannuation. However, as the applicant’s income exceeded the high income threshold, he was seeking $71,000 in compensation. It was noted that had the applicant been dismissed with notice, he would have received three weeks’ pay, plus superannuation.

[66] In oral evidence, the applicant said that he had applied for a mining job with Coalroc, and given his neck injury, he had been reviewed by a doctor. He did not get the job. The applicant claimed he had applied for a number of jobs shortly after his dismissal, but had only three interviews.

[67] As to his previous warnings, the applicant understood that as they were verbal warnings, they were not formal written warnings. Nevertheless, he remembered them, and agreed he had seen the warning letters. However, he had not been given a copy of one of them. In oral evidence, the applicant agreed that as the first warning was headed ‘Formal Warning’, this was inconsistent with what he claimed in his statement. He claimed the second formal warning was not a warning, because he did not sign it. He accepted his statement in this respect was incorrect.

[68] In cross examination, the applicant acknowledged that he was aware of, and understood the Company Standard in respect to the use of drugs and alcohol, although he had just ‘flicked through it’ at the time. In particular, he was aware the respondent offered support programs. However, he had not sought assistance in respect to his drug use. This was because he was not a ‘full-time drug user’ and only used marijuana as a desperate alternative to the pain from his injury and the side effects of other medication. He believed if he were a daily user, the THC would remain in his system for up to three months.

[69] It was the applicant’s evidence that prior to the first test (15 March 2017), he had used marijuana on the weekend before. As 15 March was a Wednesday, he agreed he did not self-test when he attended for work on either the Monday, Tuesday or the Wednesday, knowing he had used marijuana on the weekend. However, he said he had only had two joints on the Friday before the weekend, after work. Prior to this, the last time he had used marijuana was ‘over 10 years ago’. On this evidence, it meant that smoking only two joints registered 65 µg/L, five days later, and continued to register above the Australian Standard, three and a half weeks later. It was put to the applicant that for an average person, in order for marijuana to be detected in your system more than 14 days after use, one has to be a chronic user. The applicant answered by saying ‘everyone is different. I’ve read all about it.’ It was put again that if he had only had two joints, it would not be detected after two or three days. The applicant said he did not know about that.

[70] As to his use of marijuana for medical purposes, the applicant conceded he did not ask his treating doctor whether it was appropriate to mix cannabis with prescribed painkillers. He did not raise it at all with the doctor. He said he still takes painkillers when the pain gets bad, but added ‘not very regularly’.

[71] As to the conflicting evidence that he had never raised the issue of his drug use for medical purposes, the applicant disagreed and said that he had. He was asked why it was not mentioned in his unfair dismissal application. He claimed that Mr Hall, Mr Linde and Mr Taylor all knew about it. He had told Mr Hall on the drive home on 15 March 2017. However, this is not mentioned in his statement. Nor was it put to Mr Hall in cross-examination. He could not explain any of these omissions. Nor did he mention it in his statement when responding to Mr Taylor’s evidence. The applicant denied making up his evidence. He now said he also mentioned it in the 6 April 2017 meeting; but again, this was not referred to in his statement.

[72] The applicant could not explain why he did not tell anyone in Management that he had only smoked two joints. He reiterated his evidence concerning the 2014 medical report’s reference to him being a ‘regular marijuana user’ that it had remained on his file from over 20 years ago. He claimed he could prove this, but the medical centre had closed down. He claimed this medical history passed through three medical centres, without alteration.

[73] The applicant confirmed the majority of Mr Hall’s version of their phone conversation on 20 March 2017, except he denied Mr Hall ever mentioned a 15 µg/L cut-off in this conversation, or in other subsequent conversations on 27 and 28 March 2017, when he came in for a self-test. The applicant insisted that all Mr Hall ever said was that if he provided a negative screening cup test sample, he could go back to work. He had provided him with the cups to do so.

[74] The applicant further confirmed the majority of Mr Taylor’s version of their conversation on 3 April 2017, except that he denied he told him he thought his reading was low and he would be all right. He denied Mr Taylor told him his next screening cup test sample would be sent to the Lab. He just said he had to pass another test.

[75] The applicant agreed with the substance of the conversation during the 12 April 2017 disciplinary meeting. However, Mr Linde had said he did not care about his personal life or family. He insisted there was only one break in the meeting.

[76] Mr Britt put to the applicant that he did not think of his family when he went to work on Monday 13, Tuesday 14 and Wednesday 15 March 2017 ‘under the influence of marijuana’. His answer was he was not under the influence, it was just in his system, as it could have been in half of the crew if they had been cup tested. He was then asked if he thought about his crew when he came to work for three days with marijuana in his system. His answer was he did not know he would go over 50 µg/L and believed he would pass the screening cup test.

[77] In re-examination, the applicant said he last told his medical practitioner he was a ‘regular marijuana user’ when he was about 21 years old – over 20 years ago. The applicant believed that the effects of marijuana last for four to five hours.

SUBMISSIONS

For the respondent

[78] Mr Britt submitted that this case largely turns on the credit of the applicant’s evidence. This is so for three reasons. Firstly, there is a stark contrast between the applicant’s and the employer’s account of the various discussions they had from the date of the first testing (15 March 2017) to the date of termination (12 April 2017). While there are some common features between their evidence, (particularly after the applicant’s cross examination), there are still key differences in respect to what actually occurred on the date of termination; whether the respondent had a pre-prepared termination letter; whether the applicant had explained in the final meeting that he used marijuana for pain relief; and what the applicant had to do in order to pass the last drug test and return to work. An assessment of witness credit is important in respect to these matters.

[79] Secondly, determining witness credit is significant in respect to the actual testing results dealing with the presence of THC in the applicant’s system. Mr Britt pointed out that initially, the applicant’s evidence was that he smoked one or two, and then two joints on the weekend of 11 to 12 March 2017. The applicant’s later evidence was that the last time he used marijuana had been in excess of some 10 years earlier. Mr Britt submitted that the applicant’s version of events is inconsistent with the actual levels of THC in his system, both in the first test, the second test, and the last test, some three and a half weeks later. His evidence was also inconsistent with his referral letter from his GP, dated 17 April 2014.

[80] Thirdly, Mr Britt submitted that questions of credit are relevant in determining whether the decision of the respondent was ‘harsh’. In essence, the position of the respondent is that the applicant had not been frank with the Commission in respect to the extent of his marijuana use.

[81] Mr Britt contrasted this type of case with those cases where employees concede they have a problem, show remorse and admit they need help. In this case, the applicant denies any drug problem, any dependency and made no requests for help. He maintains that on Friday, 10 March 2017, he had two joints after work. On the following Wednesday, he had been randomly tested for illicit substances and found to have a THC level of 65 µg/L in his system. Mr Britt said that the applicant’s version of events is also inconsistent with the medical evidence and the scientific literature dealing with drug use and retention levels.

[82] Mr Britt submitted that reinstatement is not practicable given:

(a) the severity of the applicant’s failure to meet the respondent’s policies and expected standards;

(b) the applicant does not appreciate the gravity of his conduct;

(d) the lack of trust in the applicant, given his drug taking conduct and lack of credibility.

[83] Mr Britt submitted that there was clearly a valid reason for the applicant’s dismissal. The applicant attended for work, was randomly tested, and tested positive for illicit substances. Some days later, the applicant attended work again, for the purpose of testing, and failed that test as well. He had three weeks to provide a negative result. While the applicant seems to have interpreted a negative result to be less than 50 µg/L, the respondent submits that a negative result, under the Company Standard is below the Australian Standard of 15 µg/L. Mr Britt said that the respondent had reasonable policies in place, which are appropriate given issues of occupational health and safety and the fact the applicant is employed as a miner in an underground mining environment. The applicant was aware he could not attend for work when he was adversely affected by drugs or alcohol, and that doing so may impact on his own health and safety at work. Despite this, the applicant’s concern was not whether he had marijuana in his system, but whether he would pass the drug test. He clearly has a long term problem with the use of marijuana and was prepared to attend for work with marijuana in his system.

[84] In respect to the other considerations under s 387 of the Act, the applicant was provided an opportunity to respond to the allegation. He availed himself of that opportunity and had a support person in meetings with the respondent on 6 and 12 April 2017. This case concerns the applicant’s conduct and not his performance, so questions of warnings are not paramount. Notwithstanding this, the respondent’s policy clearly sets out the impact of non-compliance. Considering these factors, the dismissal was not ‘harsh’.

[85] Turning to particular aspects of the applicant’s evidence, Mr Britt said that the applicant’s explanation of the Doctor’s 2014 referral is simply not believable and quite problematic. He questioned the applicant’s evidence that the Doctor was referring to matters twenty years earlier (when that Doctor was not even his treating Doctor), based upon a hope that it was found in some previous medical record at a previous medical centre. It was difficult to imagine that after the applicant discovered that the Doctor’s letter referred to him as a ‘regular marijuana user’, rather than address it, the applicant chose to do nothing about it.

[86] Mr Britt referred to the Douglass Manly Moir Pathology Toxicology Report available on its website. The report outlines the average drug detection times in urine samples for various illicit substances, including cannabis. Mr Britt recognised there is a proviso in the report that individual variation can significantly influence the detection time of pharmalogical agents in urine specimens. However, according to the scale, if a non-user of marijuana smokes one to two joints, the detection time is no more than two to three days. On the applicant’s version of events, it must mean he would not have failed the test the following Wednesday. Remarkably, the applicant recorded a positive result three and a half weeks later, which puts him above and beyond the ‘regular user’ category. This result is obviously inconsistent with the applicant’s version of events in respect to smoking two joints on 10 March 2017, for the first time in ten years.

[87] Further developing this point, Mr Britt referred to the National Highway Traffic Safety Administration’s (a United States Government Agency) Drug and Human Performance Fact Sheet on THC (available on their website). The Fact Sheet states that ‘Positive test results generally indicate use within 1-3 days; however, the detection window could be significantly longer following heavy, chronic use’. Mr Britt also relied on the Fact Sheet where it states that chronic or heavy marijuana use results in ongoing risks to driving.

For the applicant

[88] In accepting the applicant had failed the first test on 15 March 2017 where he had been randomly chosen and had tested 65 µg/L, Mr Endacott put that the applicant was not dismissed for that reason; rather, he was dismissed for attending work on 6 April 2017 and failing a laboratory test after passing a screening cup test. In those circumstances, there was no valid reason for the dismissal, and his dismissal was ‘harsh’. Mr Endacott elaborated how on 6 April 2017, the applicant attended work and passed the initial screening cup test. At that point, he was given a warning for the test failure on 15 March 2017. That cup test was then sent for confirmatory testing and because a different standard was used, he received a positive result. He was dismissed on 12 April 2017 for this reason. The applicant had not taken any drugs since 10 March 2017. The testing on 6 April 2016, which produced a negative result based upon the screening test, was testing residual THC in his system related to the first fail.

[89] Mr Endacott set out the sequence of events prior to the applicant’s dismissal. He attended for work on 28 March 2017 and undertook a second cup test which recorded 48 µg/L. He then self-tested at home with a testing kit he bought. Based on that test, he believed he was going to fail. The Company then gave the applicant three cups to self-test at home. He was informed that should he pass the cup tests, he would be allowed to return to work (although Mr Endacott conceded that this point is contested). In this respect, Mr Endacott submitted that the applicant had been misled by the respondent. He was under the impression that if he passed the screening cup test (which could only identify a positive result if there was at least 50 µg/L), he would be allowed to return to work. He was dismissed when the Lab test result was below 50 µg/L. If any other employee had a level less than 50 µg/L, then the screening cup test would show a negative result. Accordingly, they would not be in breach of the Company Standard or their contract of employment.

[90] Mr Endacott referred to the evidence of Mr Hall. Under cross examination, Mr Hall explained why he provided the three self-test cups to the applicant:

‘I provided him with the cups because, at that time, he was still testing above the screening limit. It was – I’ve never provided the cups on the premise that I believed that if he passed the cups that was his fitness for work test and that was available.’

Mr Endacott submitted that when Mr Hall used the words ‘I provided him with the cups because, at that time, he was still testing above the screening limit’ it reasonably left the applicant with the impression that as long as he passed those tests, he would be permitted to return to work.

[91] Mr Endacott did not dispute that the applicant’s conduct on 15 March 2017 was misconduct. In that respect, the Company gave him a formal warning (albeit on 6 April and after he had given a sample for the final test).

[92] Mr Endacott said that had the Company not provided the applicant with the self-test kits, he still ought not to have been dismissed. Under the Company’s self testing regime, if an employee attends for work, and is concerned they may be under the influence of drugs or alcohol, they can test themselves prior to commencing work. It can be inferred from that policy that if they pass the self test, they are justified in believing they are fit for work. This is the same self testing kits which Mr Hall provided to the applicant. The applicant’s evidence was that he had not smoked any marijuana since the two joints he had smoked on the Friday prior to 15 March 2017. He had received a warning for being under the influence as a result. It is unfair in these circumstances to dismiss him for being under the influence of drugs, when he had already received a warning for that misconduct.

[93] In respect to the Douglass Hanly Moir Pathology Toxicology Report, Mr Endacott submitted that the proviso ‘Individual variations can significantly influence detection times’ was the kind of cautionary note which means it should not be relied upon in any material way. Mr Endacott also rejected Mr Britt’s submission regarding the detection times in this report. Mr Endacott understood the detection windows to be based on the 50µg/L result, not 15µg/L. The only time the applicant was tested above 50µg/L was on 15 March 2017. He received a warning for this incident.

[94] Mr Endacott submitted that the applicant was not given a sufficient opportunity to respond. He had been dismissed at the start of the meeting on 12 April 2017, in circumstances where he was told the purpose of the meeting was to show cause why he should not be dismissed. The opportunity to respond was provided to him after the decision to terminate his employment had been made and a termination letter had been prepared.

[95] Mr Endacott further submitted that the Commission should take into account the applicant’s personal circumstances, including his large family and the financial hardship he has suffered as a result of his dismissal as an underground miner. In order for him to continue his work as an underground miner, he will need to leave the region and work in a remote location or uproot his family.

[96] In reply, Mr Britt reiterated that the detection windows are based on 15µg/L. In respect to the self-testing regime, Mr Britt said that the applicant’s submissions would perhaps carry more weight if he had relied on that policy. His evidence was that he was not aware he could self-test. More importantly though, he did not self-test prior to commencing work. In fact, the random test was on Wednesday 15 March 2017. The applicant had attended work two days earlier (when it could be assumed the THC level would have been at least 65 µg/L or higher). The applicant had three weeks to attend work and provide a sample. He failed to so. Under the Company Standard this could result in his summary dismissal.

[97] Mr Britt submitted that there is no evidence that the applicant was an exemplary employee or that there were any special circumstances warranting mitigation of the penalty of dismissal. The fact that he has children cannot be determinative of whether a dismissal is ‘harsh’ since that would mean all dismissals would be ‘harsh’ if an employee had dependants and became unemployed.

CONSIDERATION

Relevant authorities

[98] There have been a small number of single member and Full Bench unfair dismissal decisions of the Commission where employees have been dismissed for breaches of the employer’s alcohol and drug policy, specifically in respect to drug use. There have been two notable Full Bench decisions. I refer first to Pitts v AGC Industries Pty Ltd t/a AGC [2013] FWCFB 9196 (‘Pitts’). Although I will not yield to the temptation of drawing conclusions based entirely on that case, given that each case must be determined on its own particular facts and circumstances, there are some remarkable factual similarities evident in both cases. In Pitts for example, like here:

• The Company did not have a zero tolerance policy where the presence of drugs is detected in a random urine sample. It was a two stage process. The site screening test if positive, requires a second confirmatory laboratory analysis to be undertaken shortly thereafter.

If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal (s 387(e))

[138] As this was a case of summary dismissal for serious misconduct, this factor is not necessarily relevant for present purposes. However, I note that according to the Company Standard, the applicant had received warnings of the likelihood of dismissal, if he failed a second Lab test. In any event, warnings were hardly necessary in circumstances where the applicant had been inducted, trained and updated on changes to the Company Standard, which expressly set out the consequences of breaches of the Standard. No findings of unfairness arise under this subsection of s 387.

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 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 (ss 387(f) and (g))

[139] The employer is a large employer in the mining industry. Its industrial relations processes reflect its size, the critical importance it places on safety, its dealings with a well resourced and experienced Union and its commitment to a fair process in dealing with disciplinary matters. I find no fault in its handling of the applicant’s dismissal. The facts were obvious, the expectations of employees under the Company Standard were well known and explained. The consequences of major breaches of the Company Standard were clear and in conformity with contemporary community and industrial expectations. In my view, the applicant was treated fairly and in accordance with due process and natural justice.

Any other mattes the Commission considers relevant (s 387(h))

[140] The applicant has paid a very high price for his conduct. He has lost a well paid job. I accept his dismissal has had a serious economic impact on his family. It may mean he will need to find work away from where he grew up and where he has extended family and friends. He may be required to be away from his family for lengthy periods or may be required to relocate them away from family and friends. I have taken this into account and have some sympathy for the circumstances the applicant has found himself in. However, that cannot be the end of the matter. In Parmalat Food Products Pty Ltd v Wililo (2011) 207 IR 243, the Full Bench of the Commission said at paras [18] to [19]:

‘[18] In our view this case raises important questions about the respective rights and obligations of employees and employers in relation to safety requirements at the workplace. Employers have important statutory obligations to maintain a safe place of work. Those obligations have a high profile in NSW. Establishing and enforcing safety rules are an important obligation, a breach of which can lead to serious consequences.

[19] In this case the employer considered, and established to the satisfaction of the Commissioner, that Mr Wililo had breached its safety rules and his conduct amounted to serious misconduct. Clearly disciplinary action was necessary and appropriate because a failure to do so sends a message to the workforce that safety breaches can occur with impunity. The application of the unfair dismissal provisions to this case is a matter of general importance and in our view clearly attracts the public interest. We therefore grant permission to appeal.’

And at [24] to [26] said:

‘[24] We do not consider that the decision discloses a clear line of reasoning leading to the decision reached. 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. We do not believe that any of the circumstances involved in this matter amount to such factors.

[25] It is not clear to us that in referring to other considerations under s 387(h) the Commissioner was suggesting that these were mitigating factors. If they were so considered we believe she fell into error. The service and disciplinary record of Mr Wililo was not a mitigating factor as his service was short and his disciplinary record was poor. The failure to show Mr Wililo the CCTV footage was not a matter of significance. It was largely inconclusive and could not have altered the conclusion that Mr Wililo had an adequate opportunity to respond to the allegations against him.

[26] Mr Wililo’s conduct was found to be serious misconduct. It involved deliberate acts. We consider that characterising the actions as carelessness does not derogate from the seriousness of his action or the possible consequences. Further we do not believe that there was a sufficient basis to find that the employer could not apply its safety standards because of alleged actions in relation to other safety breaches. If it was entitled to take the action in this case the need to enforce its safety rules suggests that the resultant termination is not harsh.’

[141] I have also taken into account the applicant’s unreliability as a witness, and his attempts to ‘whitewash’ his conduct or blame others for what he knew to be wrong – profoundly wrong. The risk he posed to himself and to his fellow employees on 13, 14 and 15 March 2017, with such elevated levels of THC in his system, and the risk I believe he continues to pose to them, is so gravely serious that dismissal was, in my opinion, the only course of action open to Whitehaven. The possible consequences of his conduct could have been catastrophic.

[142] I do not intend to interfere with Whitehaven’s decision to dismiss Mr Eather. His dismissal was neither ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. His application for an unfair dismissal remedy must be dismissed. An order to that effect will be issued contemporaneously with this decision.

DEPUTY PRESIDENT

Appearances:

Mr K Endacott for Jarrod Eather.

Mr A Britt of Counsel with Mr A Bland, Solicitor, for Whitehaven Coal Mining Limited t/a Narrabri Coal Operations Pty Ltd.

Hearing details:

2017.

Tamworth: August 23.

Sydney: September 29.

Printed by authority of the Commonwealth Government Printer

Jarrod Eather v Whitehaven Coal Limited t/a Narrabri Coal Operations

[2018] FWC 250

11 JANUARY 2018

DECISION