John Mulcahy v Compass Group (Australia) Pty Ltd
[2011] FWA 1529
•17 MARCH 2011
[2011] FWA 1529 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Mulcahy
v
Compass Group (Australia) Pty Ltd
(U2010/1427)
COMMISSIONER WILLIAMS | PERTH, 17 MARCH 2011 |
Termination of employment.
[1] Mr Mulcahy, the Applicant, has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Respondent is Compass Group (Australia) Pty Ltd T/A ESS Support Services Worldwide.
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.
[3] Section 394 of the Act allows “a person who has been dismissed” to apply to Fair Work Australia for a remedy.
Introduction
[4] The Applicant commenced employment with the Respondent in January 2007.
[5] In June 2008 the Applicant was appointed to the position of the ESS Plant Superintendent, ESS Support Services Worldwide (i.e. the role of a Site Manager) for the Respondent’s operations at the Woodside Energy Limited (Woodside) Karratha Gas Plant (KGP), which is located near Karratha in Western Australia.
[6] A termination of employment letter was given to the Applicant on about 30 August 2010.
[7] The letter states the termination of employment resulted from the Applicant’s repeated failure to meet the Respondent’s ‘Fitness for Work’ policies, which was regarded as a serious breach of the Applicant’s contract of employment and a fundamental failure by him to meet the responsibilities for safety leadership required of a site manager.
[8] The failure to meet the Respondent’s ‘Fitness for Work’ policies refers to the Applicant returning a positive ‘blood alcohol concentration’ (BAC) reading when he was breath tested on Wednesday, 25 August 2010.
[9] ‘Repeated’ failure refers to the fact that in November 2009, the Applicant had been given a written ‘final warning’ for a breach of the Respondent’s ‘Fitness for Work’ policy by returning a positive BAC reading at a random breath test conducted at the commencement of his shift.
The Evidence
[10] Evidence at the hearing was given by Mr Mulcahy and for the Respondent by Mr Byrne and Mr Parker.
[11] The evidence provided to the Tribunal demonstrates that the Applicant’s contract of employment provides that an employee must comply with the policies and procedures in the Respondent’s ‘Employee Handbook’.
[12] The ‘Employee Handbook’ sets out the Respondent’s ‘Fitness for Work’ policy.
[13] The more detailed procedures relevant to the ‘Fitness for Work’ policy are located on the Respondent’s My.Compass intranet site, which is accessible to all Site Managers and any Compass Group employees who use computers in the performance of their daily work.
[14] The Respondent’s ‘Alcohol & Other Drugs’ (AOD) procedure sets out the Respondent’s expectations of employees in relation to minimising the effects of alcohol and drugs in the workplace.
[15] The AOD procedure provides that a BAC equal to or greater than 0.02% is regarded as a positive reading and an employee is then to be stood down from work.
[16] The Respondent’s AOD procedure provides that if the initial BAC reading is under 0.02% it will be recorded as a negative result. However, the employee will not be permitted to return to work and will be re-tested after 20 minutes. If the subsequent BAC reading is falling, the employee is to be re-tested until they return a zero BAC reading, at which time they will return to work.
[17] Importantly, the respondents AOD procedure also expressly states that a Client’s testing procedure takes precedence if it is more stringent than the Respondents standards. This point is made twice in the Respondents AOD procedure.
[18] The evidence is that the Woodside ‘Fitness for Work’ policy states that all persons on a Woodside ‘operational site’ shall have a BAC of 0.00%. KGP is an ‘operational site’.
[19] The Applicant concedes in his evidence that he knew that if he was ever required to submit to a breath test at KGP, the result must be a BAC reading of zero. He knew that was the Woodside policy and it applied to him. In his evidence however, he argues that in effect only the second reading taken of this BAC on 25 August 2010 counted for the purpose of this.
[20] The Applicant’s evidence is that he commenced work at or about 7:00am on Wednesday 25 August 2010.
[21] At about 10.00am, the Applicant was required by a Mr Drabble, from Woodside to undertake a “for cause” breath test.
[22] The Applicant says that the “for cause” test was required by Woodside as a result of another employee reporting to Woodside that they had detected alcohol on the Applicant’s breath earlier that morning 1.
[23] The Applicant says he had smoked a cigarette approximately 5 minutes before the test although this evidence is at odds with the timing provided by the Applicant in his original application, which says there was a 10 minute delay. I note that the Respondents policy says employees should be cautioned not to smoke for 10 minutes before a random BAC test.
[24] The Applicant tested with a positive BAC reading of 0.009%, which was above the zero Woodside requirement of BAC level for the KGP site.
[25] A subsequent test, conducted approximately 20 minutes later produced a reading of 0.00% BAC and the Applicant was permitted by Mr Drabble to return to duty for the day.
[26] The Applicant rang Mr Byrne and informed him of the BAC tests. Mr Byrne is the Respondent’s Key Account Manager based in Karratha to whom the Applicant reports.
[27] The evidence is that Mr Byrne told the Applicant that he should apologise to Woodside, the Client, and that Mr Byrne and the Applicant would meet the following day to discuss the matter further.
[28] Mr Byrne also commented in this phone exchange that the consequence would probably be counselling, and consideration of a ‘final warning’ being issued.
[29] I note that in his application at point 5 in the time line of events the Applicant set out, he states that he “agreed to this disciplinary action believing it to be fair and reasonable”.
[30] Mr Byrne sought advice from his immediate manager Mr Parker, the General Manager ESS Oil & Gas regarding the Applicant’s BAC tests. It was agreed that Mr Byrne would meet with the Applicant the following day and then discuss possible courses of action again with Mr Parker.
[31] Mr Byrne and Mr Parker say they considered that the Applicant had commenced work on the Wednesday approximately three hours before the 10am BAC test and, therefore, the reading of 0.009% BAC strongly suggested that when the Applicant commenced work that day his BAC was significantly higher.
[32] Mr Byrne and the Applicant met on Thursday 26 August 2010 and it was put to the Applicant that he had commenced work on Wednesday, 25 August 2010 when it was unsafe for him to do so and in breach of the Respondents Fitness for Work policy. The Applicant, Mr Byrne says, acknowledged that to be correct 2.
[33] Mr Byrne’s evidence is that the Applicant conceded that he had been drinking more heavily the previous night than was usual for him on a week night, and that at no time did the Applicant seek to deny the first positive BAC reading was a correct result. 3
[34] It was also discussed that the Applicant had previously been given a final written warning in a letter dated 9 November 2009 (Final Warning Letter) regarding a failure to comply with the Fitness for Work policy (as described in this letter “Woodside/Compass Group Alcohol and Other Drug Policy...”) and specifically relating to attending work with a blood alcohol level above the zero tolerance level for the KGP site.
[35] I note that the Final Warning Letter explains the Applicant as part of the counselling was then given a copy of the Fitness for Work Policy and was required to undertake a self paced alcohol training session.
[36] Mr Byrne’s evidence is that he told the Applicant that a recommendation would be made for the termination of his employment or that instead he could resign if he wished.
[37] The Applicant then indicated to Mr Byrne that he would prefer to resign.
[38] The evidence is that the Applicant then prepared and sent an email to Mr Byrne confirming his decision to resign.
[39] However the next day on Friday, 27 August 2010, the Applicant sent Mr Byrne an email to the effect that he wished to withdraw his resignation on the grounds that he considered that he had been pressured by Mr Byrne into resigning.
[40] The Respondent chose to accept the withdrawal of the resignation and Mr Parker and Mr Byrne then reviewed the facts surrounding the incident on Wednesday, 25 August 2010 and the Applicant’s previous employment record.
[41] Mr Parker and Mr Byrne decided that the Applicant’s repeated failure to meet the ‘Fitness for Work’ policies was a serious breach of his contract of employment and a fundamental failure to meet the responsibilities for safety leadership required of a site manager.
[42] They concluded that they had lost faith in the Applicant’s commitment to perform his safety leadership responsibilities and that these repeated failures justified the termination of the Applicant’s employment.
[43] On Monday 30 August 2010, the Termination Letter was prepared and arrangements made to hand deliver it to the Applicant.
[44] Termination of employment was effective from 30 August 2010, with payment of salary in lieu of notice in accordance with the contract of employment.
The legislation
[45] Section 387 of the Act provides:
“s.387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
Valid Reason?
[46] On the question of valid reason, the Respondent says the Applicant’s repeated breach of the Fitness for Work policy provided a valid reason for the decision to dismiss the Applicant.
[47] The Applicant argues he was not was not unfit for work on 25 August 2010 and therefore not in breach of the Respondents policy and that he was dismissed because the Respondent wrongly assumed he was unfit for work.
[48] I accept that the Respondent’s AOD procedure makes it plain that a client’s testing procedure will take precedence should it be more stringent. It is readily apparent that the Woodside ‘Fitness for Work’ policy demands that all persons on a Woodside ‘operational site’ shall have a BAC of 0.00%. I accept that KGP is an ‘operational site’.
[49] The Woodside policy simply says that all persons on a Woodside ‘operational site’ shall have a BAC of 0.00%. It is a simple to understand zero tolerance policy. It is clear from the Final Warning Letter that this was reinforced with and accepted by the Applicant following his positive BAC test in November 2009.
[50] The Respondent says that the fact that a final warning had been issued to the Applicant in November 2009 for a similar breach of the Fitness for Work policy was a significant factor in considering whether or not to terminate the Applicant’s employment.
[51] The Respondent considered the significance of the Applicant’s low level BAC reading in the test conducted about 10am on Wednesday, 25 August 2010 and the zero BAC reading for the second test conducted approximately 20 minutes later. However, it decided there was no good reason to ignore the fact that the Applicant had been found to have again breached the zero BAC requirement as shown by the first test.
[52] This was because at no stage did the Applicant suggest the first BAC reading was wrong.
[53] The respondent points out that the possibility of the first BAC reading being a false positive was first raised in the applicants submissions to the Tribunal for this arbitration. The day after the BAC tests were taken the Applicant had conceded to Mr Byrne the first test was likely to be a true reading. Further, in the application lodged (see section 3, paragraph 10) the Applicant says “I realise that I have done wrong and accept that”. This statement by the Applicant is consistent with the evidence of Mr Byrne regarding the applicant’s admissions during their meeting on Thursday 26 August 2010. On this critical point I accept the evidence of Mr Byrne.
[54] The Applicant had readily accepted some lesser disciplinary action would be fair - a position which is at odds with his submission in these proceedings that he was not unfit for work at all and that the Respondent wrongly assumed he was unfit to work.
[55] It follows that as a result of the first BAC reading of 0.009%, that the Applicant breached the Woodside requirement for a zero BAC reading, a policy of which he was fully aware and had previously breached and for which he had received a final written warning.
[56] At the hearing the Applicant also challenged the first positive BAC reading on the basis of it being affected by his earlier cigarette smoking. He asserted that the reason for the Respondents policy providing a 20 minute delay before a second reading is conducted is to allow the mouth to be cleared of any contaminants and in particular, tobacco smoke.
[57] The Respondent’s AOD procedure, however, does not support that assertion. It is apparent, on the face of the document, the reason for the delay is rather to allow time for the human body to further metabolise the presence of alcohol and then provide an indication of whether the BAC is going up or down.
[58] However I accept that the Respondent’s AOD procedure recognises that tobacco smoke may result in an inaccurate BAC reading.
[59] The Applicant at hearing says that on the day of the BAC test, he had “just finished a cigarette” and then he was directed to present for a BAC test, which produced the initial positive BAC reading. In cross examination this time gap he says was around only 5 minutes.
[60] However I note in the Application (see section 3, paragraph 1 and 2), the Applicant said there was a 10 minute break between being asked to submit to a breath test and the time the test was taken. Added to that is the time taken between having “just finished a cigarette”, and returning to his office before he was then asked to take the test.
[61] The Respondent argues the Applicant’s claim that he had “just finished a cigarette” when he was directed to present for a BAC test is not to be believed and is a story concocted after the event to try and save his job.
[62] The Respondent argues that the Applicant knew about the Respondent’s AOD procedure, which (as stated above) notes that tobacco smoke may result in an inaccurate BAC reading. Given that knowledge, it is submitted it is reasonable to question –
- why the Applicant did not request a time gap before submitting to the first BAC test;
- why the Applicant did not challenge the first BAC reading at the time on that basis; and
- why the Applicant did not offer the ‘tobacco smoke’ explanation when questioned by Mr Byrne.
[63] Critically the evidence is that the Applicant admitted to Mr Byrne that he had drank more than usual the previous night and that the Applicant did not, in discussion with Mr Byrne, challenge the positive BAC reading. This is consistent with his application as lodged where he says he accepted a lesser form of discipline as reasonable and that he had “done wrong”. Considering all this together the evidence is sufficient to satisfy me that the first BAC test was not contaminated by tobacco smoke. Consequently I find that the Applicant returned a positive BAC reading on 25 August 2010 and so was in breach of the Respondents Fitness for Work Policy.
[64] Mr Parker and Mr Byrne considered it significant that the first test was conducted approximately three hours after the Applicant had commenced work. They reasonably concluded that at the time the Applicant commenced work his BAC must have been significantly higher than the 0.009% BAC reading recorded at 10.00AM
[65] In Smith v BHP Billiton Petroleum Pty Ltd[2010] FWA 3349 (Smith’s case), Deputy President McCarthy notes the expert evidenceof Dr David Joyce, a Professor in the School of Medicine, Dentistry and Health Science at the University of Western Australia and Head of Clinical Pharmacology and Toxicology at Sir Charles Gairdner Hospital and PathWest Laboratory Medicine: see paragraph [20] of the decision. At paragraph [21] of the decision, McCarthy DP summarises the expert evidence as follows
“[21] Dr Joyce stated that:
• Blood alcohol concentration in an adult male rises while he is drinking, and for a little while afterwards. Then it starts to fall. The average rate of fall for an adult male is 0.016% per hour. This is also the figure adopted by the WA Road Traffic Act for this stage of alcohol elimination.”
[66] Mr Parker and Mr Byrne were entitled to conclude that the Applicant’s BAC was significantly higher at the start of his shift and to takes this into account when reviewing their options and assessing the seriousness of the breach.
[67] In conclusion then I find that Woodside’s more stringent standards which require a zero BAC applied to the applicant when he worked on the KGP site. I find that the Applicant had twice breached the Fitness for Work Policy of which he was fully aware. Further given the timing of the first BAC test on 25 August 2010 I find that the BAC of the applicant at the start of his shift was significant and so was a serious breach of the Fitness for Work policy. The Applicant knew the possible consequences of such breaches included dismissal. In my view then the multiple breaches of the Fitness for Work policy were a valid reason for the dismissal related to the Applicant’s conduct.
[68] With respect to the other factors in s. 387.
[69] Section 387(b): The Applicant was notified of the reason for the dismissal.
[70] Section 387(c): The Applicant was given an opportunity to respond to the reason for which he was dismissed.
[71] Section 387(d): There was no refusal by the Respondent to allow the person to have a support person present to assist at any discussions relating to dismissal.
[72] Section 387(e): The reason for the dismissal was not about unsatisfactory performance before the dismissal.
[73] Section 387(f): The procedures followed in effecting the dismissal were appropriate given the Respondents size.
[74] Section 387(h): Other relevant factors include the fact that the Applicant had been employed for under four years. In addition I note that following receipt of the Final Warning Letter in November 2009 for a breach of the Fitness for Work policy the Applicant wrote to Woodside apologising for his actions at that time. In his letter he acknowledged the seriousness of his actions and guaranteed “that there will not be a repeat occurrence of this”. The Applicants letter also said that he was aware that any recurrence meant he would be removed from the site permanently with no right of reply which he said he accepted.
[75] Considering all the circumstances of this matter the dismissal of the Applicant was not harsh, unjust or unreasonable and so this application is dismissed.
COMMISSIONER
Appearances:
Mr J Mulcahy, The Applicant, on behalf of the Applicant.
Mr G Blyth, National Workplace Relations Manager, on behalf of the Respondent.
Hearing details:
2010.
Karratha:
March 3
1 PN 66-68
2 Witness statement Byrne para 52 - 64, PN235
3 Witness statement Byrne para 52 - 61
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