Maxwell Parks v WorkPac Pty Ltd

[2025] FWC 2316

[2025] FWC 2316

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Maxwell Parks
v

WorkPac Pty Ltd

(U2025/1247)

COMMISSIONER SIMPSON BRISBANE, 8 AUGUST 2025

Application for an unfair dismissal remedy – non negative drug test result returned – confusion regarding applicable policy of site or employer – valid reason – failure to consider all of the circumnstances – termination was harsh – compensation awarded

1. On 5 February 2025, Maxwell Parks (Parks / the Applicant) applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy, alleging he was unfairly dismissed from his employment with WorkPac Pty Ltd (Workpac / the Respondent). The matter was listed for hearing on 16 May 2025. Directions were issued for the filing of submissions and parties filed further material.

1. The Applicant provided a witness statement dated 22 April 2025,[1] and also filed a statement in reply on 9 May 2025.[2] Ms Jaimee Mckinley, Site Manager, Batchfire Callide and Boundary Hill for the Respondent, provided a witness statement dated 1 May 2025.[3] Mr Quarmby was unavailable to attend the hearing, so the Respondent withdrew its reliance on his statement.

1. Mr Daniel Gosewisch, an in-house lawyer for Workpac appeared on behalf of the Respondent, and Ms Danielle Cruikshank, a friend who was not a lawyer or a paid agent, appeared on behalf of the Applicant.  The Applicant advised that the SECURETEC document filed as part of his evidence and appearing at page 40 and 41 of the Court Book was the wrong one, as and it should have been SECURETEC DRUG WIPE 6S.  The correct document was subsequently provided. 

Relevant Documents and Policies

WorkPac Fitness for Work Policy

“WorkPac is committed to providing and maintaining a safe and healthy working environment in which our employees, FTMs and contractors (employees) are not exposed to hazards arising from fatigue, stress or the use or abuse of alcohol or drugs.

When reporting for work, employees must be fit for work, including being physically and mentally fit as well rested, to ensure that they can perform their duties in a safe manner.

Employees are prohibited from working when under the influence of alcohol or drugs, including illicit and prescription drugs that have a capacity to impair an individual from performing the duties of their position in a safe manner.

WorkPac proactively undertakes activities to identify and appropriately deal with any of employees who may be unfit for work. Our processes are transparent, fair, sensitive, and legally compliant.

WorkPac has developed and implemented appropriate policies, procedures, and a code of conduct to effectively, fairly, and proactively manage the identification and management of workplace conditions and instances where employees are deemed unfit for work. Employees shall abide by all of the requirements set out in these documents to ensure personal safety and wellbeing.

WorkPac’s policies and procedures address fitness for work issues, including:

·Requiring employees undertake drug and alcohol screening as a condition of employment and during any assignment or period of work, including systematic and random testing where required;

·Training employees at various stages of employment regarding the dangers of presenting to work in an unfit state, whether due to drug and alcohol abuse, fatigue or other causes; and

·Taking reasonable steps to ensure that the hours of work, rosters and workplace conditions that our employees are exposed to do not create unacceptable risks due to fatigue or stress.”

Batchfire Fitness for Duty – Drugs – Fitness for Duty Safe work Procedure

“…

5.4 Voluntary Self Testing

Saliva testing units will be available in a private and confidential area, for voluntary self-testing for all coal mine workers and visitors prior to swiping on to the site access system. The test kits may be taken off site.

·so the person does not place themselves or others at risk; and

·to increase the awareness of drug use

Where an individual’s self-test shows that they have returned a result at or above the prescribed limit, the individual must not commence work. The person should notify their Supervisor that they are unfit for duty and not commence work, in which case the Supervisor shall, if necessary, arrange for that employee to be transported to Biloela or other agreed location, or at a convenient time, or wait until the person is fit to drive home.

Normal sick leave provisions may be used for these absences; however repeat absences as a result of exceeding the prescribed limit will be managed through the site’s absenteeism procedures.

5.5 Random Drug Testing

Random drug testing will apply to all employees, contractors and visitors in accordance with the following:

·Testing may be required to be undertaken on any day(s) of the week, on any shift(s) and at anytime.

·The actual method of selection will be as fair and random as practicable, providing a chance that every individual may be tested on every day that they are present on the mine site. In developing the random selection program, the FFD Working Party will only be consulted to the frequency of testing if the frequency will be dropped below 3%.

·The individuals selected for testing may comprise of complete workgroups, full shifts or any other appropriate grouping.

5.6 Testing for Cause or Concern

All persons directly involved in fatal incident or serious bodily injury are required to undergo drug testing, unless testing is not physically possible due to the nature of the injury.

A person may be directed by management to undergo drug testing in the following circumstances:

·A person is involved in an incident where there is the potential that drugs may have been a contributing factor. Incidents involving, misjudgement, delayed reactions and high potential incidents (as defined by the mine’s safety and health management system or legislation) are all examples of where an individual may be required to undergo drug testing.

·A coal mine worker reports to a management representative or OCE that they believe that another person is affected by the use of drugs. In suspecting that a person is unfit for work there must be signs or symptoms that support the concern such as:

·Actually viewing the use of drugs, or drug implements in a person’s possession on site;

·Erratic, abnormal or unusual behaviour for example:

oAbsurd/abusive or non sensical talk or behaviour;

oIncoherent or voluminous in speech, inability to respond sensibly to reasonable questions;

oLack of coordination, slow responses, or vagueness.

Prior to testing in these circumstances, the management representative (include Safety and Health Manager where possible) and OCE shall discuss the concern with the individual who may choose to have a workplace representative present. (The notifier shall also be tested).

·Where a person has previously attended work at or above the prescribed limit, and additional testing is included in a Drug Management Action Plan for that person.

·Management may also initiate drug testing where there is a concern of a higher level of risk due to, for example, a large numbers of contractors on a shutdown.

Testing for drugs will be undertaken in accordance with the drug testing procedures outlined in clause 0 below.

…

5.8 Drug Testing Procedure

Where a coal mine worker or visitor is selected to undertake test for drugs due to random testing or testing for cause or concern, the following will apply:

1.   Where the selection is due to random testing, the person shall present for testing at least by the commencement of their shift or immediately thereafter and before undertaking any tasks.

2.   Where the selection is for cause or concern the person shall immediately present for testing prior to undertaking any further tasks.

3.   The test will be conducted by a Company Tester in the presence of a witness.

4.   The person will be asked whether they are currently taking any form of medication. Where privacy is a concern due to the declaration of medication, the witness can be asked to leave/wait while the declaration is being completed.

5.   Persons selected for testing will be required to provide a saliva sample for the drug testing unit.

6.   The specific saliva testing procedures will be in accordance with the drug testing unit manufacturer’s recommendations.

7.   Subject to 8. below, where the result is negative, the person will proceed to normal duties.

8.   Where the result is negative, but the signs and symptoms that led to testing for cause or concern persist, health and safety professionals will be involved and the employee will be offered to leave work voluntarily.

9.   Where the result is non-negative, the person may request to be tested again immediately.

10.  If the second result is negative they will proceed to work.

11.  Where the first result is non-negative, (and the second result, if required, is also non-negative), they will be advised they are not to proceed to work and are required to provide another saliva sample(s). (See clause 5.10 where a Declaration of Medication Form has been provided)

12.  The collected sample(s) are sealed in the presence of the individual.

13.  The sample(s) are sent to the Company’s nominated testing agency with the appropriate laboratory chain of custody form (as per Australian Standard 4760). (For an example see Appendix 3).

14.  Transport to Biloela or other agreed location will be made available to the person. They will be advised that they are required to return to work on their next shift (overtime or rostered) and provide another saliva sample for testing until a negative result on site is obtained. When this occurs the person will complete a sick leave form for all absences and return to normal duties.

15.  If the results of the saliva sample tested by the Company’s testing agency reveals that the sample does not return positive, the worker will not lose any entitlements.

16.  Details of all tests will be recorded (e.g. Appendix 2, electronic method etc).

17.  As soon as practicable, on return to work following a positive result, the Supervisor, the individual and their workplace representative if requested, and if required, a health and safety department representative will meet to develop a Drug Management Action Plan.”

Notice of Offer of Employment – Permanent Full Time – Flat Hourly Rate

“Drug and Alcohol Testing:

It is a term of employment that you will be required to comply with WorkPac and/or their Clients fitness for work policies and procedures which will include testing regimes under the relevant Australian and New Zealand Standards.

…

Site Policies and Procedures:

It is a term of employment that you comply with all site requirements including site policies and procedures.

Such policies and procedures operate independently of this Agreement and are not incorporated into this Agreement. You acknowledge that WorkPac’s Client may vary or rescind any policies or procedures from time to time, in its absolute discretion and without any limitation on its capacity to do so and any failure by the Client to comply with its policies or procedures is not a breach of any term of this Agreement (including implied terms).

…

WorkPac Policies:

It is a term of employment that you comply with all WorkPac Policies as found on the WorkPac public website: policies and procedures operate independently of this Agreement and are not incorporated into this Agreement. You acknowledge that WorkPac may vary or rescind any policies or procedures from time to time, in its absolute discretion and without any limitation on its capacity to do so and any failure by WorkPac to comply with its policies or procedures is not a breach of any term of this Agreement (including implied terms).

…

Entire Agreement:

This Agreement:

a) constitutes the entire agreement between the parties as to their subject matter and any implied
contractual duty of good faith, or duty of cooperation owed to you by WorkPac is expressly excluded from forming part of it; and

b) in relation to that subject matter, supersedes any prior understanding or agreement between the parties and any prior condition, warranty, indemnity or representation imposed, given or made by a party.”

WorkPac Code of Conduct

“3.4 Comply with the Law

WorkPac and its employees must comply with the laws and regulations in each state and territory in which WorkPac operates as a business.

This Code does not describe every law, regulation or requirement that may apply to your engagement with WorkPac. You should make sure you know the rules that do apply to you and comply with those rules. If you have any questions, you must seek advice.

Through this Code and WorkPac’s policies, procedures and practices, WorkPac holds its employees’ accountable for ensuring decisions and actions meet our compliance obligations as well as WorkPac’s values.

Our expectations of you:

·Ensure you complete all ongoing training and education programs relevant to your role to build and maintain awareness of relevant laws, policies, procedures and practices;

·Ensure you understand and comply with all relevant legislation, regulations, WorkPac policies and procedures in the location/s in which you work or which apply to the work you are doing;

·Report any behaviour that you experience or witness that may constitute a breach of any law, regulation or WorkPac policy or procedure;

·Do not victimise or take any adverse action against an employee for reporting breaches of the law or the Code; and

·If you are unsure about a particular law, obligation, policy or procedure, speak up.

3.5 Comply with WorkPac’s Policies and Procedures

WorkPac requires all employees, officers and directors comply with WorkPac’s policies and procedures and are individually responsible and accountable for their actions.

Our expectations of you:

·Ensure you understand your responsibilities under the Code and WorkPac’s policies and procedures;

·Take responsibility for the way in which you behave, perform your duties efficiently, honestly, and to the best of your ability and, where appropriate, report the results of your actions;

·Complete all ongoing training and education programs relevant to your role to build and maintain awareness of relevant laws, policies, procedures and practices;

·Raise your concerns if you believe a business conduct is unethical, unsafe or breaches the Code, WorkPac’s policies and procedures or the law; and

·Ensure you understand and comply with all relevant legislation, regulations, WorkPac’s policies and procedures in the location/s in which you work, or which apply to the work you are doing.”

WorkPac Employment Guide

“12. FITNESS FOR WORK

WorkPac employees are required to present for work in a fit for work state, defined as being in a physical, mental, and emotional state which enables individuals to perform the requirements of their position in a safe manner. This means free from the effects of illegal drugs, prescription drugs that have not previously been declared, alcohol, and fatigue.

You may be required to undertake a drug and alcohol screen as part of pre-employment or on an ad hoc basis, particularly if you are working in mining or construction. WorkPac has a zero tolerance to illegal drugs and or alcohol use in the workplace. Disciplinary action may occur in the event of breaches of this policy.

If you are required to drive yourself to your workplace and your journey exceeds two (2) hours, you may be required to complete a journey management plan that ensures you are self-managing the risks of fatigue.

You will be provided with a link to complete an online journey management plan by your WorkPac Contact Person if required. Once completed it will be assessed by a WorkPac Safety and Risk Management team member.”

Casual or Maximum Term Employee (FTM) Terms & Conditions of Employment

“…

7. OCCUPATIONAL HEALTH & SAFETY
…

Fitness for Work
Drugs, Alcohol and Medications

7.18 The employee (FTM) must not:-

(i) take alcoholic beverages (including spirits) or illicit drugs on to a site or into
workplaces; or
(ii) attend any site, undertake any work or duties or operate machinery while in any way intoxicated or under the influence of alcohol or drugs.

7.19 The employee (FTM) acknowledges and agrees that the employee (FTM) must not have a blood alcohol level or drug concentration level (whether tested by breath, urine or blood) above 0% at any time that the employee (FTM) performs work or duties under an assignment. Breach of this requirement will be grounds for immediate termination of the employee (FTM)’s employment.

7.20 The employee (FTM) must notify the employer and the client supervisor immediately if you are required to take prescription or any other medication that may affect their performance.

…

14. EMPLOYEE (FTM)’S ADDITIONAL OBLIGATIONS

Compliance with employer’s policies, procedures and code of conduct

14.1 The employee (FTM) must comply with the employer’s policies, procedures and Code of Conduct, as amended from time to time, which will be available on the Employer’s website at These include, without limitation, the following policies:-

(i) Occupational Health Safety Policy;
(ii) Injury Management & Rehabilitation Policy;
(iii) Fitness for Work Policy;
(iv) Environmental Policy;
(v) Quality Policy;
(vi) Privacy Policy;
(vii) Equal Employment Opportunity Policy;
(viii) Workplace Equity & Diversity Policy;
(ix) Harassment, Unlawful Discrimination & Workforce Bullying Policy;
(x) Employee Relations Policy;
(xi) Community Relations Policy;
(xii) Indigenous Australians Policy
(xiii) Fitness for Work Policy
(xiv) Injury Management & Rehabilitation Policy
(xv) Social Media Policy

14.2 The employee (FTM) acknowledges that they have reviewed each of the policies, procedures and the code of conduct available on the website referred to above and agrees to comply with each of them.

14.3 The employee (FTM) may also be required to comply with the client’s code of conduct provided that where there is any conflict with the terms of the employer’s code of conduct and the client’s code of conduct, the employer’s code of conduct will prevail to the extent of the inconsistency unless otherwise notified by the employer.

14.4 You must comply with all lawful requirements and directions given to you by the client in this regard. Some of these instructions may come from the owner or controller of the site if that is not the client.”

Evidence and Submissions

1. The Respondent is a labour hire provider providing services to Batchfire Resources Pty Ltd (Batchfire) at the Boundary Hill Mine (the Mine). The Applicant was employed by the Respondent and placed on assignment to perform work at the Mine as a Mobile Plant Operator, operating rear dump trucks and was also authorised to operate dozers. Mr Parks’ employment commenced with the Respondent on 10 May 2021.  The Applicant agreed that the dump trucks he operated had a payload above 200 tonnes. 

1. Mr Parks’ contract of employment (Employment Contract) at the time of dismissal relevantly comprised:

a.Terms and Condition of Employment issued to the Applicant on 11 May 2021, which includes an obligation to comply with WorkPac’s policies and procedures.

b.A Notice of Offer issued to the Applicant on 27 December 2024, which includes an obligation to comply with WorkPac and Mine fitness for work policies including testing regimes.

1. The Mine tested all employees for drugs and alcohol randomly (via green light and red light on entry) or “for cause” as determined by Batchfire, under the Mine’s “Fitness for Duty – Drugs” procedure.

1. On the evening of 25 January 2025, the Applicant consumed a small amount of cannabis.

1. The Applicant was rostered to work from 6:30am on 26 January 2025 at the Mine. Between approximately 5:30 and 6:00am, before going to work the Applicant performed a self-test, with a self-test unit provided by Batchfire, which produced a negative result for the presence of drugs.

1. The Applicant submitted that these self-test kits are supplied by Batchfire and can be obtained on site and taken home so that employees can see if they are fit for work before attending the worksite to increase employee safety. The Applicant said this safety precaution is implemented as it is recognised by the Mine that marijuana is used by people as medication in situations such as mental health issues like his. Due to producing a negative result on this test, the Applicant’s evidence was that he firmly believed that he was fit for work on that day.

Batchfire Fitness for Duty – Drugs – Fitness for Duty Safe Work Procedure

“…

5.4 Voluntary Self Testing

Saliva testing units will be available in a private and confidential area, for voluntary self-testing for all coal mine workers and visitors prior to swiping on to the site access system. The test kits may be taken off site.

·so the person does not place themselves or others at risk; and

·to increase the awareness of drug use

Where an individual’s self-test shows that they have returned a result at or above the prescribed limit, the individual must not commence work. The person should notify their Supervisor that they are unfit for duty and not commence work, in which case the Supervisor shall, if necessary, arrange for that employee to be transported to Biloela or other agreed location, or at a convenient time, or wait until the person is fit to drive home.

Normal sick leave provisions may be used for these absences; however repeat absences as a result of exceeding the prescribed limit will be managed through the site’s absenteeism procedures.”

1. The Applicant’s evidence was that he arrived at work and at 6:30am, swiped on, and was given a green light to proceed to work as usual.

1. At about 8:00am the Applicant was called on the 2-way by his Field Supervisor, and he was instructed to stop operating the truck and meet the Supervisor at the crib hut, which he then did. The Applicant said he was then informed that he had to participate in a drug and alcohol test for “a cause of suspicion”. The “cause of suspicion”, the Applicant said he was then told, was because another Batchfire employee, that he shared accommodation with, had produced a “non-negative test result for THC” that morning.

1. The Applicant submitted to the drug test as he believed that it was what he was required to do under the Batchfire Policy.

1. Mr Parks’ evidence was that he wasn’t asked if he wanted a witness or a support person, and the Supervisor was chosen to be his witness.

1. The first test produced a non-negative result. The Applicant submitted that according to Batchfire’s Policy and Procedure guide, where the result was non-negative, the person may be requested to be tested again immediately. If the second result is negative, the employee will then be allowed to “proceed to work” as normal.

1. The Applicant’s evidence was that after his second test result was negative, his Supervisor decided that due to the uncertainty of the test results, he called the SSE who then instructed the Supervisor to send him home as they “could not risk” having him on site.

1. Another B sample (another saliva test) was taken.  It appears from the evidence that due to the public holiday, Mr Quarmby who did not give evidence, took the chain of custody sample back to his locked drug room at the Callide Mine and placed it in the locked fridge.

1. The Applicant was sent home at 10:00am on 26 January 2025 without pay. On this date the Applicant had conducted a total of 3 tests on site, 1 x non-negative, 1 x negative, and 1 x B sample, which he says he never received the results of.

1. At 10:21am on 26 January 2025 the Applicant sent a text message to Ms McKinley stating: “Hey had an issue at work. When ever your free give us a call or whenever you come back to work please. Thank you [smiley face]” The Applicant said Ms McKinley did not respond.

1. The Applicant submitted that by sending him home after a second test resulting in a negative, the Batchfire drug testing policy was not followed by his Supervisor or the SSE. Along with this and the initial non-negative result, after having performed a negative test at home only a few hours before, and then the receiving another negative test when he was retested, he submitted he was beginning to think that things were not right and became suspicious.

1. The Applicant was asked about his evidence in his reply statement where he said Batchfire did not have grounds to drug test him for cause on this day, and Batchfire should have allowed him to return to his duties.  The Applicant said the decision to test him for cause on the first day was the paramedic, and on the second day it was the supervisor.  He agreed they were not WorkPac employees. He said the reason given on the first day was because he shared accommodation with someone who provided a non negative test.  

1. Ms McKinley was referred to the second dot point in clause 5.6 of the Batchfire Fitness for Duty – Drugs Policy.  Ms McKinley was asked whether this raised a flag for her that  the process followed was inconsistent with Batchfire’s policy.  Ms McKinley said she was not aware this was Batchfires policy.  Ms McKinley agreed she was told that there was one non negative test and then one negative test and he was then sent home. 

1. It was put to Ms McKinley that in the circumstances Batchfires policy said that he could return to work after the negative result.  Ms McKinley said she was told Batchfire made the call to send him home and that he could return after the following shift.  Ms Kinley said she only found out about this after he had already returned for the following shift (the next day).  Ms McKinley said she did not question Batchfire’s decision.  Ms McKinley said Batchfire runs its own testing procedure, and it is not at the discretion of Workpac. 

1. At approximately 2:00pm on 26 January 2025, the Applicant received a text message from his supervisor which said, “if you haven’t been called, come to work for night shift” which was for his usual rostered shift.

1. On 27 January 2025, the Applicant attended work for his usual rostered night shift at the Mine, as instructed by his Supervisor the day before.

1. Due to the incident the day before, out of precaution, the Applicant submitted he performed another Batchfire supplied take home drug self-test before attending work that evening at approximately 5:30 to 6:00pm. This test produced a negative result. The Applicant arrived at work at 6:30pm that evening.

1. When the Applicant arrived, he was instructed to meet his Supervisor in the drug and alcohol testing room to take another drug test before he was allowed to start work.

1. The Open Cut Examiner (OCE) performed this test, and the Supervisor was there as a witness. The Applicant said he wasn’t asked if he wanted a witness or a support person, the Supervisor was chosen to be his witness for him.

1. The Applicant’s evidence was that he performed the drug test, waited for the appropriate time and was then informed by the OCE and Supervisor that the test was negative. The test that was shown to him showed a negative result. The Applicant said he was then requested to sign the required paperwork to state that the test was negative. He said he confirmed the “negative” box was checked and the Supervisor signed this paperwork confirming the same. He said he was then allowed by the Supervisor and the OCE to proceed to work.

1. The Applicant submitted that in his understanding, a negative test should then be disposed of in a bin and the employee is allowed to proceed to work as usual. On the other hand, a positive test is required to be put in a bag and sealed in front of the employee and the employee is then required to perform a second test immediately.

1. The Applicant said neither of these things happened. Instead, the OCE picked the test up from the table and that was the last the Applicant saw of that test. He said he was then allowed to leave the testing room, and he did not know what happened to, or with, the test after he left the room.

1. As he left, his evidence was that he remembers that two other people walked into the testing room but cannot recall exactly who. He then walked over to the pickup area where he waited for about 20 minutes for a light vehicle to collect him and take him to his truck. He recalled that he was standing there for about 20 minutes, long enough to have a cigarette and chat to a worker. He was then picked up by another worker and travelled in the light vehicle towards the location of his truck.

1. During this trip, he was contacted by a Supervisor on the 2-way radio and told to return to the bathhouse. The worker turned the light vehicle around and drove him back to the bathhouse. When he got back to the bathhouse, his evidence was he was taken to the OCE’s office. The OCE’s office is a different room to the room he had initially been drug tested in.

1. When he walked in, the OCE had a non-negative drug test sitting on top of his desk next to an unused test. The Applicant recalled that the unused test was sitting in a bag that was open. He recalled noting that this test was not sealed in its original package and this was not the usual procedure. Usually, tests are opened in front of the person being required to take them to ensure procedural fairness. The Applicant was then informed that the test he had performed that morning had turned non-negative for THC, and that he was now required to take another test. His evidence was that he was surprised by this as he had believed that the negative test had been disposed of when he left.

1. The time between when the original test had concluded and he was called on the 2-way radio was well over 30 minutes, and even longer by the time he was presented with the non-negative test by the OCE.

1. The Applicant submitted that according to SECURETEC, the manufacturer of the drug tests, the test results are only able to be read for up to 10 minutes after the conclusion of the test. After 10 minutes, the tests are no longer valid, and the results cannot be relied upon. The Applicant provided a copy of the manufacturer’s instructions with his statement, which was referred to above was the incorrect version, however provided the correct version at the hearing.   

1. The Applicant said the OCE then showed him the form that he had signed confirming earlier that the test was negative. But the form had now been changed from “negative” to a “non-negative” and the change had been initialled, but not by the Applicant. When he saw this change, he objected to the paperwork being changed without his permission after the witness and himself had signed to confirm the negative test was true and correct.

1. Believing that he was complying with Batchfire policies, he then agreed to perform a second test as he was told he had to do.

1. In this test the OCE picked up the unused test from his desk that the Applicant had already noted was not in a sealed bag. He removed the test from the already open packaging, pulled off the prong and placed the test back on top of the packaging. He then handed the Applicant the test on top of the packaging. The Applicant performed the test and handed it back to the OCE who then activated it by cracking it.

1. After a few moments the test produced a non-negative result for THC, which again caused the Applicant to be alarmed, as the first test on that day had been negative when he had left the room and had only apparently changed well past the manufacturers 10-minute validity time limit.

1. Due to the unusual procedure and the previous non-negative result, the Applicant said he was very confused, and he was very suspicious by this time and requested to do another test, which he knew he had a right to do.

1. The OCE denied this request. This confirmed to the Applicant that the correct procedures were not being followed, and he felt targeted. The Applicant said he was frustrated from being ignored and having to fight to stand up for himself to people in a position of power who were controlling the situation. He said he just wanted to get out of there and go home.

1. Two supervisors and the OCE discussed his request with each other. After a long period of time one of the supervisors confirmed that he did actually have a right to request another test, and he could do one if he still wanted to.

1. By this stage the paramedics were already on their way, and the Applicant’s evidence was he knew they would require a B sample, which he firmly believed would come back negative. So, he told the Supervisor not to bother, and he would complete the B sample instead. The Applicant was then required to perform a B sample which was supposed to be sent away to the laboratory for analysis.

1. Over the period of 26-27 January 2025, the Applicant said he conducted a total of 4 x tests onsite and 2 x B samples.

1. Ms McKinley’s evidence was that during the day on Monday, 27 January 2025 she received a telephone call from Mr Jim Bulten of Batchfire, who informed her that on the day before (Sunday, 26 January 2025) at the start of the morning shift Mr Parks was ‘for cause’ tested by Batchfire because Mr Parks’ housemate had tested positive for on a drug test. Mr Parks had returned a non-negative result and had been sent home for that day.

1. Ms McKinley said she was subsequently informed by Mr Martin Gardiner, Supervisor for Batchfire C-Crew, that when Mr Parks attended site for his next scheduled shift in the evening of Monday, 27 January 2025, Mr Parks produced two further non-negative results. Ms McKinley stated she was also told that tests from both 26 January 2025 and 27 January 2025 were being sent for pathology testing.

1. Ms McKinley’s evidence was that Mr Matthew Scales, Mine Manager for Batchfire, also later provided this information to WorkPac on the basis that as Mr Parks was a WorkPac employee, it was WorkPac’s decision on what action to take.

1. At 9:07am on 28 January 2025, Ms McKinley responded to the Applicant’s text message from 26 January 2025, stating “Hey Max, just in an ICAM I’ll give you a call back :).”

1. Ms McKinley’s evidence was that Mr Brett Wallace, Safety Systems Superintendent for Batchfire, subsequently sent her an email on 31 January 2025 attaching the following documents (Pathology Results):

a.Pathology test results dated 30 January 2025 for a test dated 26 January 2025 for Mr Parks; and

b.Pathology test results dated 30 January 2025 for a test dated 27 January 2025 for Mr Parks

1. Ms McKinley said she determined that Mr Parks test results indicated there may have been breaches of the WorkPac policies, and WorkPac issued a Notice to Show Cause to Mr Parks on 31 January 2025.

1. Ms McKinley said she also called Mr Parks on 31 January 2025 just before she issued him the Show Cause Letter. She said she told him about the allegation of a positive test result for THC, that it was being investigated, and advised that he had the opportunity to respond. Ms McKInley said Mr Parks stated in that telephone call that he regularly smoked, but that he used self-testing units prior to commencing work. He argued that the self-testing units were different tests, with different detection levels, to the tests used at the mine itself.

1. Ms McKinley was asked what investigations she had conducted into concerns raised with her by the Applicant about his claim that Batchfire did not follow its own policies and protocols.  Ms McKinley said she asked whether the test was a random test and she was advised that the Applicants housemate had tested positive.

1. Ms McKinley said she was more concerned with sticking to Workpac’s policies than Batchfire’s policies once the testing had been completed. 

1. Ms McKinley said she was not aware of any difference between the tests being used being rated at 15ng/ml however the Batchfire Policy is 25mg/ml.  Ms McKinley said she was unaware of that.  It was put to Ms McKinley that she expects the employees to be aware of those policies.  Ms McKinley said WorkPac employees are expected to abide by the zero tolerance policy of Workpac.

1. Ms McKinley was asked where the zero policy is.  Ms McKinley was referred to clause 12 of the WorkPac Employment Guide, and the sentence in it that reads as follows:  “WorkPac has a zero tolerance to illegal drugs and or alcohol use in the workplace.”  It was put to Ms McKinley that the reference to zero tolerance referred to “in the workplace.”  Ms McKinley answered that the policy referred to a requirement to “present for work in a fit for work state”.

It was put to Ms McKinley that the WorkPac Fit for Work Policy talks about presenting fit for work but does not refer to zero tolerance.  Ms McKinley simply responded with “ok”.  

1. Ms McKinley said she was unaware that Batchfire provided self-testing kits for workers to self-test at home, but said she was aware of the self-test kits at work.   Ms McKinley was asked in the event of inconsistency between Batchfire and WorkPac Policies which policy does an employee follow.  Ms McKinley said WorkPac’s.  Ms McKinley was asked if that was set out somewhere and she answered that she was not sure. 

1. Ms McKinley was referred to clause 3.1 of the WorkPac Code of Conduct where it states as follows:  “..If you are undertaking work with our clients, they have safety policies, procedures and systems which must be complied with.”  Ms McKinley agreed that this means employees are required to comply with Batchfire policies.   

1. Ms McKinley was referred to clause 3 of the Casual or Maximum Term Employee (FTM) Terms and Conditions of Employment document where a list of the documents governing an assignment are set out, and clause 3.3 which deals with how inconsistencies are to be resolved.  Ms McKinley was then referred to clause 6 regarding Site Obligations, and a statement that site policies and procedures form part of the terms and conditions and Notice of Offers, and failure to comply may result in termination of employment and/or assignment. 

1. Ms McKinley was herself unable to point specifically to a document that showed that WorkPac policies superseded Batchfires. 

1. On 31 January 2025, the Applicant was issued a show cause letter, which indicated the Applicant had been subject to a random drug test:

Dear Max,

RE: Show Cause

WorkPac writes in relation to your current assignment with Batchfire Callide Management Pty Ltd (Client) at Callide Mine (Site) as a PROP – Mobile Plant Operator (Position).

Further to the conversation on 28 January 2025 with Krys McKinley, Recruitment Coordinator, and Jaimee McKinley, Site Manager, WorkPac has recently become aware of allegations concerning your conduct.

WorkPac want to ensure that you are given an adequate opportunity to formulate a well-considered written response to the allegations that have been raised against you. Considering this, the purpose of this correspondence is to formally set out all the allegations that are the subject of WorkPac’s investigation so that you may formally respond to same and show cause as to why your assignment with the Client should not be finalised.

Allegations

Allegation One:

It is alleged that on or around 27 January 2025, you attended site and undertook a random drug and alcohol test which returned initial reading of non-negative for THC. It is further alleged that confirmatory testing has resulted in a positive reading for THC.

How do you respond to the above allegation?

Explanation Opportunity:

1. Can you explain how the above behaviour, if substantiated, is consistent with the continuation of your employment with WorkPac?

2. Can you explain how WorkPac could have faith and confidence in your ability to perform your role going forward?

3. Can you provide any other reasons why WorkPac should not finalise your employment?

Breaches:

The above allegations concern an alleged material breach of the following policies and procedures relating to your assignment:

• The WorkPac Code of Conduct (‘The Code’) which relevantly states that employees must present fit for work and not under the influence of alcohol or drugs;

• The WorkPac Fitness for Work Policy (‘The WorkPac Policy’) which states “When reporting for work, our People must be fit for work, including being medically and mentally fit as well as properly rested, to ensure that they can perform their duties in a safe and efficient manner. Our People are prohibited from working when under the influence of alcohol or drugs, including both illegal and legal drugs”; and

• The WorkPac Employment Guide (‘The Guide’), which provides that you have a duty of care to ensure you work safety and do not put yourself or anyone else at risk of harm or injury.

Where your alleged conduct is in breach of the abovementioned policies and procedures, WorkPac considers your conduct further breaches the Terms and Condition of your Employment (‘The Terms’), your Notice of Offer of Employment (‘The Notice’) and the Guide which relevantly provide that you must comply with Client and WorkPac policies and procedures while on site.

Response Required

In those circumstances, you are required to provide a written response to the above allegations and justify why your assignment should continue. If you choose to provide a response to this correspondence, please respond in writing via email to Jaimee McKinley, Site Manager, by no later than 5:00 pm Monday 3 February 2025.

On assessing the merits of your response (if any) to this correspondence, WorkPac notifies you that it will be proceeding with an appropriate course of action, which may involve a formal disciplinary outcome, including termination of your employment.

If you choose not to respond to the allegations, WorkPac will have an understanding that you do not wish to provide a response and will therefore make a decision (without your input) on the appropriate disciplinary action.

This matter is confidential, and you are directed not to discuss or communicate with anyone in relation to this matter other than Jaimee McKinley or WorkPac’s ER Team. During the period you are stood down you are also directed not to contact any WorkPac or Client Employees.

WorkPac appreciates your cooperation in its attempt to resolve this matter as soon as possible. Again, if you require support or assistance during this time, I encourage you to utilise WorkPac’s EAP service.”

1. On 2 February 2025, the Applicant responded to the show cause letter as follows:

Can you explain the above behaviour, is substantiated, is consistent the continuation of your employment with workpac?

On the 26th of January 2025 I was operating a ridged dump truck on a digger circuit before receiving a mine 2 way call around 8:00am by supervisor to stop operating and meet at the crib hut. I had met the field supervisor at the crib hut, I was informed another batchfire employee that I share accommodation with had failed a dna saliva test for THC, which I was confused from the outcome of the results. I was then informed that I was to participate in a drug and alcohol testing for a cause of suspicion since I reside at the same accommodation. The supervisor had asked if I had smoked any marijuana last night which in my case revealing my personal life and those details was intrusive because of the taboo that comes with substance abuse and self medicating with substance. I then proceeded to tell them the truth not to protect myself but others involved in the incident. I had informed the supervisor that I had smoke the night before at 8:30pm 25th of January 2025. I didn’t want my supervisor to think I would ever commence work and partake in that behaviour of taking drugs (illegal/legal) or alcohol endangering myself and others I work with. Even though I was embarrassed I had told the supervisor to protect my integrity and others involved. We proceeded to the bathhouse in a light vehicle with the supervisor driving the vehicle. At the bathhouse I participated in an alcohol and drug testing where I was questioned about what I had done the night before. The paramedic and supervisor was informed when I had finished work I had traveled home had dinner, smoked and showered then went to bed. The information I had verbally given I finished smoking marijuana around 8:30pm then I was asleep before 9:30pm. By the time I had explained about the night before I had a result BAC 0.00 for my alcohol and result for saliva test had a positive reading with THC. That time of participating in those testing I was so confused because in any other time that I have had the same routine after and before work and never failed before, plus I had told the paramedic I had self tested before I had even drove to work. I then informed the paramedic could the results be different because the self testing units are different from the drug testing units that are in possession and used for drug and alcohol performed from a qualified tester. The paramedic then proceeded to tell me the 2 test units don’t differentiate from each other which is false. The paramedic informed me they where more expensive then the other tests so they used them for there personal use, which is unfair in my opinion. Securetec drug swipe 6 s test units that are only obtained by a qualified testers have a 5ng/ml THC cut off strip in the unit, which that information I had obtain myself after the incident. The self testing units that I had obtain from batchfire self testing room Drug Check Saliva Scan has a 12ng/ml THC cut off which is still below the Australian standard. Australian standard is 15ng/ml THC cut off in laboratory which is information I had also obtain after the incident. Cut-off levels are important in drug testing because they help balance accuracy with fairness. They prevent individuals from testing positive due to incidental exposure or minimal drug use that doesn’t impair performance. For instance, candidates undergoing a drug test for a job should not be penalised for trace amounts of substances that do not affect their ability to work safely. From the positive THC result from the first test they proceed with the protocol and I participated in another test which was a negative. The paramedic was on the phone with the Site Senior Executive, which the paramedic was directed because of the incident coinciding with my incident just to send me home probably to protect others on the mine site in case of a false reading, that is my own allegation. I then was directed to do a b sample before I was driven home by another co-worker that was not involved in the incident/testing.  I was so embarrassed and disgusted in myself because I didn’t like anyone knowing that I partake in taking this substance every now and then for self medicating reasons which I’m not proud of, let alone failing my first test. I had no intentions of coming to work with any traces of anything in my system. I take pride in having a safe workplace for me and others in it. That’s why if I ever did take that substance that can impair co ordination or impair my cognitive thinking I would perform a self test before driving to work. If I had failed a self test I would not proceed to work for it is my duty of care. Which in the years of working with this client I have never not come to work from a failed self test unit provided by batchfire. After the incident on the 26th of January 2025 I immediately message my site manager Jaimee McKinley around 10:00am just to inform I had been sent home because of matter provided above. On the same day 26th of January 2025 I had received a message from the supervisor at 1:48pm directing me if I hadn’t been told back at work tomorrow night. I responded to the message explaining I will be attending, so I made sure i was fit for work for the first night shift on the 27th of January 2025. Before my night shift out of fear self tested with a self testing saliva unit provided from batchfire just to be sure weather I had no substances that could have the same situation arise at work again. Swiped on the worksite getting a green light at the start of shift. Walked straight into the pre-start without conversing with my co-workers out of embarrassment. Had a supervisor approach me and directed me to see them after my pre-start. Also received a message on my phone to meet with the supervisors after pre-start. After pre-start I had done as directed and was taken to the drug and alcohol testing room which I already had an idea they would take that precaution after the prior shift. I proceeded to participate with the drug and alcohol feeling pretty confident for passing my 2nd test the day before. I had a BAC 0.00 and tested negative for the drug saliva test. The open cut mine examiner performed the test and my supervisor was my witness. The OCE showed my supervisor both the test then they aloud me to proceed to work. I had waited for a light vehicle to take me out to field for work. Waited for about 15-20mins got into a light vehicle traveling out to the pit and received a mine 2 way radio call for me to return to the bathhouse. I did what I was directed to do and come back to meet the supervisors in the OCE office. I was informed that I had tested positive for THC which I was confused because I had left and 2 other people had gone in after my testing. We were in a different room from my first initial test with another test already sitting in front of the OCE and supervisor. I was very confused and frustrated by this point and proceeded to challenge the supervisor and OCE on how these tests work because I had done light reading on the tests. Only because I got a negative on my test the day before so I speculated that I definitely should be a negative on the suspicion on being under the influence of THC, so I participated with the second test. The second test come back positive for THC which by then I was upset and really confused because I self tested before coming to work. I told my supervisor I had self tested before work and haven’t even smoked since my last smoke at 8:30pm 25th January of 2025. My Supervisor sarcastically said if you didn’t smoke why would you self test. I said why wouldn’t I self test when the  paramedic said the day before it could stay in your saliva for 72 hours depending on food, metabolic state and dehydration. So why would I risk coming to work without testing after that comment. I asked if I could do another test and they said no, that the paramedic was coming to perform a b sample to get it sent to a laboratory to finalise the results. Sitting and waiting in the OCE office for 10 minutes one of the supervisors come in and said I was obligated to challenge the supervisor for them to test me. Which I was aware of this before when I ask and they said no, I was really upset by this point and why I resulting in a positive in the saliva test when I have never been that many hours after smoking and resulting positive for THC with a saliva testing unit. I responded to the supervisor I’m done with all these tests send it the laboratory so it can shine some light on the matter because I felt fine and not impaired at all. The paramedic had come into the room and we had proceeded with a b sample which was performed no different from the day before. When I participated in the b sample they had sent me home with another 2 co-workers that weren’t involved with the incident to drive me home. After I had been driven home and took a picture of my self test saliva unit provided by batchfire prior coming to work just so I have a some sort of evidence for personal reasons. I was disappointed and disgusted that I should of taken more precaution knowing they had change the saliva tests weeks before but I had not been smoking marijuana for weeks prior to this incident. But when I had known I could smoke the week before I had been tested positive for THC, that they must have the other tests still in the self testing room for a reason and where reliable test to use for my self testing.  Obviously I was wrong. The next morning on the 28th of January 2025 I called my site manager to inform Jaimee of what has happened since we had still not talked from my incident on the 26th of January 2025. My site manager was busy dealing with another matter so I called my coordinator Chris McKinley to At least have someone from workpac know, so no one is left out on the matter. After my coordinator and I had spoken about the matter Jaimee was not far off returning my call and she was informed on the matter. I informed Jaimee in any other situation that was similar to this, same routine before and after work but never once failed my Random tests at work. I also informed her this is not an everyday thing i don’t take this substance all the time and sometimes i could not even touched the substance for years. But being employed by Workpac and contracted to my client batchfire for almost 4 years I have never failed a site blanket test and random drug test or never failed smoking in a 24hour window. I also self tested with the same test used during the matter. Jaimee directed me to wait for the results and we will proceed from there. I had waited 3 days and had been anxious about the matter so I had called Jaimee on the 31st January of 2025 to see if she had heard anything about the results, which Jaimee informed me if she had heard anything she would call me. That afternoon Jaimee had called me informing me my test come back positive for THC. I was in shock in disbelief and still am. Jaimee informed me that she had sent me an email about allegations and if I wanted to respond to it. I am in disbelief but I am willing to accept the allegations if I have seen the results from the laboratory. If the allegations are substantiated about the positive laboratory test I will accept any disciplinary action towards me because the behaviour is embarrassing and disgusting. I’m already upset and embarrassed with the non-negative test at work because that behaviour is not acceptable in any workplace. So seeing the positive laboratory test can be educational and has a lot of closure for my mental state because I do not accept that behaviour.

Can you explain how Workpac could have faith and confidence in your ability to perform your role going forward?

I commemorate in both companies Workpac and batchfire for their policies and procedures for making my workplace a safe place to be apart of. I am very disappointed in myself from the allegations and findings against me. Therefore I will not partake in taking the substance I’ve been alleged to be under the influence whilst attending batchfire worksite. That is one of the policies that make me feel safe in my workplace and I never thought I would be someone to breach this policies for I have always been careful of being fit for duty. So I will not medicate myself with any substance but study and understand cognitive thinking therapy to help me in dealing with everyday challenges. I haven’t been dealing well with some of my personal challenges but I have come realisation that somethings need to be addressed differently, because even though I thought I was doing the right thing by trying to be sure I was fit for work that there is a likelihood of failure. So I believe you can have faith and confidence in me from experience of my failure and breaching this procedure and policies. So now because of this matter if my actions and behaviour have any likelihood of breaching these policies or procedures I will not act or behave in anyway. I strive on safety for myself and for wellbeing of others. My performance at work I am always learning and always bettering myself so I can be an asset for the company. So I plead to you that this mistake won’t keep me down, I will move forward and not let these allegations tarnish who I am as a person.

Can you provide any other reasons why Workpac should not finalise your employment?

I’m a hard worker and strive on safety no matter the hurdles and challenges in front of me I keep trying, attacking my goals never quitting. The last 3 years have been somewhat one of the most challenging time of my life but I have not lost site of my goals and what needs to be done in my life. If Workpac and Batchfire have faith in my words I will not let you down and achieve one of my goals which is to be one of the faces leading in the Industry to mould the foundation on every attributes that make the industry so successful.

1. The Applicant was asked about his evidence in his first statement where he said on 26 January 2025, he believed he was fit for work on that day because of his negative self-test.  The Applicant was asked if he was still of that view that he was fir for work and he answered yes.  The Applicant also said he believed he was fit to work on 27 January 2025 as well.  The Applicant agreed he also maintained that Batchfire should have allowed him to return to work on 27 January 2025. 

1. Ms McKinley’s evidence was that after receiving Mr Parks’ Show Cause Response, she discussed the situation with Mr Goodin at the time, together with Ms Alexa Burchall from WorkPac’s internal Employment Relations team. It was left to Ms McKinley to determine what the appropriate response was in the circumstances.

1. Ms McKinley said she was satisfied that Mr Parks had breached the WorkPac policies, as she was satisfied that the combination of the Pathology Results, the Show Cause Response, and Mr Parks statements to her by phone, all confirmed that Mr Parks had illegal drugs in his system when he presented to work on 26 January 2025 and 27 January 2025. In those circumstances, Ms McKinley said she determined that a serious breach of policy had occurred given Mr Parks’ role as a mobile plant operator, and immediate termination of his employment was appropriate. She said she determined it was not appropriate for Mr Parks to serve out his notice period in the circumstances given the safety risk associated with operating mobile plant at the Mine.  

1. During cross examination Ms McKinley agreed it was up to her to decide the course of action to determine the outcome regarding the Applicant.  Ms McKinley agreed that there were other options she could have potentially taken.  Ms Mckinley said there was a process to follow for disciplinary matters, and it could include a first and final warning or second and final warning.  Ms McKinley maintained that termination was appropriate because of the test results.   

1. On 4 February 2025, the Applicant was issued a termination letter due to producing two non-negative tests for THC:

Dear Max,

RE: Investigation Close Out – Termination of Employment

WorkPac writes in relation to your current assignment with Batchfire Callide Management Pty Ltd (Client) at Callide Mine (Site) as a PROP – Mobile Plant Operator (Position).

WorkPac further refers to the following:

•The ‘Show Cause’ letter issued to you and dated 31 January 2025 (Show Cause Letter); and

•Your email to Jaimee McKinley, Site Manager, on 3 February 2025 within which you responded to the allegation (Show Cause Response).

Investigation Findings

Having regard to the above circumstances, WorkPac has made the following findings in respect of the allegations in the Show Cause Letter.

Allegation One:

It is alleged that on or around 27 January 2025, you attended site and undertook a random drug and alcohol test which returned initial reading of non-negative for THC. It is further alleged that confirmatory testing has resulted in a positive reading for THC.

WorkPac has reviewed all information relative to the investigation inclusive of your Show Cause. WorkPac further notes the typographical error in the above allegation. Specifically, the allegation states that the initial non-negative occurred on 27 January 2025, however, in accordance with the confirmatory test results and your Show Cause Response, WorkPac confirms that the initial non-negative occurred on 26 January 2025 and a further non-negative occurred on 27 January 2025.

In consideration of your Show Cause Response, WorkPac confirms that, by your own admission, you had attended for Site after consuming marijuana, and whilst you believed yourself to be fit for work, you did in fact produce two (2) non-negative results on two (2) consecutive days. Further, upon confirmatory testing, these two (2) nonnegative tests produced positive results for THC, with the second test producing higher readings than the first.

In circumstances where it is WorkPac’s position that you must be fit for work and not under the influence of drugs or alcohol when attending for work, WorkPac confirms that Allegation One has been substantiated.

Breaches:

For the above actions, WorkPac considers that you have breached the following policies and procedures that relate to your employment:

•The WorkPac Code of Conduct (‘The Code’) which relevantly states that employees must present fit for work and not under the influence of alcohol or drugs;

•The WorkPac Fitness for Work Policy (‘The WorkPac Policy’) which states “When reporting for work, our People must be fit for work, including being medically and mentally fit as well as properly rested, to ensure that they can perform their duties in a safe and efficient manner. Our People are prohibited from working when under the influence of alcohol or drugs, including both illegal and legal drugs”; and

•The WorkPac Employment Guide (‘The Guide’), which provides that you have a duty of care to ensure you work safety and do not put yourself or anyone else at risk of harm or injury.

Where your substantiated conduct is in breach of the abovementioned policies and procedures, WorkPac considers your conduct further breaches the Terms and Condition of your Employment (‘The Terms’), your Notice of Offer of Employment (‘The Notice’) and the Guide which relevantly provide that you must comply with Client and WorkPac policies and procedures while on site.

Outcome of Investigation

In determining an appropriate outcome for this investigation, WorkPac has had regard for all available information including your responses. Where you have materially breached WorkPac and Client policies and procedures by attending Site under the influence of THC, WorkPac considers your conduct inconsistent with the continuation of your contract of employment.

Considering all available information WorkPac considers the substantiated conduct warrants termination of your employment effective immediately.

This correspondence therefore serves as confirmation of your discussion with Ms McKinley on 4 February 2025, during which you were advised that your employment with WorkPac has been terminated for serious misconduct effective immediately.

WorkPac also encourage you to reach out to its Employee Assistance Program (brochure attached) should you require any additional support at this time.

Please don’t hesitate to contact your local WorkPac Business Centre should you have any questions in relation to this correspondence.”

1. The Applicant said in his statement in reply that the cannabis he consumed was prescription cannabis which was provided to him by someone he knew as they could see his mental health was spiralling and the stress and anxiety he was under on 25 January 2025 due to a personal family situation with his children, where he had been separated from his children. 

1. The Applicant said it is accepted that his second test on 26 January 2025 was a negative test, and the validity of the first non-negative test on 27 January 2025 is disputed as it was initially negative and visually confirmed and signed off by his Supervisor, and Mr Gardiner and himself as negative. 

1. The Applicant said the chain of custody was broken for the initial test on 27 January that was signed off as negative, and was claimed by the employer to have later turned non negative.   Further the second test on 27 January 2025 was already opened on the OCE’s desk and could therefore it could not be verified as being untampered.  The Applicant said the Respondent never looked into his claims regarding the testing procedures. 

1. Due to the above concerns, he did not trust the non-negative results produced by some of the tests completed on both 26 and 27 January 2025. The Applicant further states his firm belief he was fit and prepared for work and not under the influence of alcohol or drugs on either the 26 or 27 January 2025.

1. In summary, the Applicant argued that it was also extremely unclear based on the plethora of documents and policies between the Respondent and Batchfire, that he was required to be aware of and comply with, which took precedence over the others. He submitted that he was in compliance with Batchfire policies in being under the prescribed limit for the presence of drugs. He also argued that WorkPac policies and documents did not state a “zero tolerance” as is now being relied upon for the dismissal.

1. The Applicant submitted that his WorkPac ‘Notice of Offer of Employment’ states that he is required to comply with “WorkPac and/or their clients’ fitness for work policies and procedures”. Batchfire’s policy states that testing regimes must comply with the “relevant Australian and New Zealand Standards”. He maintained the “relevant standards” are located in Appendix 1 of the policy and are the AS 4760/2006 standards.

1. These state that the cut off threshold concentration for the detection of THC is “25 ng/ml”. He submitted the  SecureTec test that are currently being used on site are calibrated to current AS 4760/2019 Australian Standards, which now have a lower cut off threshold of “15ng/ml.” The Applicant submitted that this means that any tests resulting in non-negatives at the lower threshold of 15ng/mL are actually false readings as they are detecting lower traces of THC than the level specifically written in the policy. It is the sensitivity limit of when the tests should show a positive result. By implementing testing kits that produce a positive result at a level of 15 ng/ml, these tests are effectively producing false“non-negative” for anyone with a level under the prescribed limit of 25 ng/ml but has trace levels over 15 ng/ml.

1. The Applicant said upon further research it has become evident that the SecureTech DrugWipe 6 S actually has a detection threshold of 10ng/ml which is even below current Australian Standard AS 4760/2019.  The Applicant said in his show cause it was 5ng/ml but that was from the German manufacturing for the police.  The Applicant accepted there was no document in evidence confirming the 10ng/ml number.

1. It was put to the Applicant that table 2 and table 3 of AS 4760/2019 state the cut off cut off concentration for THC is 5ng/ml for a chromatography-based screen test, and 5ng/ml for confirmatory tests and he agreed.  The Applicant accepted that the 5ng/ml figure is the figure on the Pathology Report at page 163 in the Digital Court Book. 

1. The Applicant was asked if he was suffering from a mental health illness on 26 and 27 January and he agreed.  He was asked when the mental illness started, and he said it was situational as he was not seeing his children for a few months before then and this was an ongoing matter. 

1. The Applicant agreed that he disclosed during his Coal Board medical in 2021/2022 a bi-polar disorder which was in remission and the medications he was taking for that condition.  The Applicant said he was no longer taking those medications.  It was put to the Applicant that the Coal Board medical approved him to work based on him following that treatment plan. He said it was based on seeing a specialist.  He agreed he had an updated Coal Board Medical in December 2024 which no longer had a comment about him following a specialist report and he was fit for work.  Ms McKinley confirmed that the Applicant disclosed his condition of bi-polar at the time of commencement of employment.  Ms McKinley said she was not aware as at January 2025 of any medical condition suffered by the Applicant. 

1. The Applicant agreed his recent mental health condition arose between December 2024 and January 2025.  It was put to the Applicant that given he had medications previously for a mental health condition he did not need to self-medicate with cannabis.  The Applicant said specialists had said to him medications are not healthy for him.   The Applicant agreed he did not disclose his medical situation to the Respondent.  The Applicant agreed the cannabis prescription medication was not his.  He also agreed he was not present when it was prescribed, however he said the medication had a pharmacy label on it.  The Applicants recollection was that it said 35% THC content.  He was unable to say what that was in milligrams.  The Applicant said he smoked half a joint. 

1. The Applicant clarified that he had stopped taking medication in relation to a mental health condition approximately three years ago.  He said he had not seen his children from early January 2025 who had been taken away from his care, and his evidence was to the effect that it was in the later part of January that it was affecting him.  He said he did not think his mental health would stop him from working however he was under stress having lost his partner and children.  The Applicant said that Batchfire and WorkPac were aware of his personal circumstances, and he had not tried to hide it.  Ms McKinley agreed that the Applicant did discuss the situation he was having concerning his ex-partner and his children with her but did not recall the exact time. 

1. The Applicant contended that by providing tests to take home, Batchfire encouraged employees to perform self-testing to ensure fitness for work prior to attending the site. In performing a self-test prior to attending work that day the Applicant said he was ensuring that he was fit for work. He said he was also under the honest and reasonable, but mistaken, belief that if a drug self test returned a negative result, he was in fact 0%. It was not until he did further research into the matter after the events of his termination, that he said he became aware that tests have a cut off limit at all and would produce non-negative results only at certain levels.

1. The Applicant was referred to his reply evidence where he said in his case the small amount of cannabis he consumed over 10 hours before self-testing and returning a negative result, which would be under 10mg of THC and therefore he would not have experienced any residual effects.  It was put to him he did not know whether he consumed more or less than 10mg as 1 mg is one thousandth of a gram, and 1 ng is one millionth of gram.  He said he believed he had zero percent his system based on the negative result from the self-test provided by Batchfire. 

1. It was put to the Applicant that the test results from the laboratory showed on 26 January the level was 15ng/ml, and on the 27 January it was 17ng/ml.  The Applicants evidence was he could not understand how this could be the case.  The Applicant confirmed in his oral evidence he did not consume any cannabis between the two tests. 

1. The Applicant was referred to his reply material and a document titled “Medical cannabis and driving”, and extracts he set out in his evidence where he said 20 mg of THC is a typical dosage.  The Applicant was referred to a statement in the article to the effect that cannabis-positive drivers are 1.1 to 1.4 times more likely to be involved in a crash relative to a sober driver, and it is similar to low range blood alcohol concentration.  The Applicant accepted he would not be permitted to drive with a low range blood alcohol concentration at the mine, and he accepted that his belief that he had a zero-level concentration of THC when he reported for work was mistaken. 

1. The Applicant still maintained that he would have been fit to drive trucks and said he did not feel intoxicated.  The Applicant was referred to the “Medical cannabis and driving” article where it as observed that users of medical cannabis often believe their use of medical cannabis does not impair their driving even though THC can still impair driving when a person does not feel intoxicated.  The Applicant also accepted that the Laboratory Test results don’t say what a high or low level of THC is, or what an intoxicating level of THC is. 

1. The Applicant was referred to his show cause response where he said he was surprised by the result of the saliva test on 26 January because he had followed the same routine before and never failed a test.  He agreed that he had smoked prescription cannabis medication the night before attending work on previous occasions. 

1. The Applicant agreed the self-test kits were provided by Batchfire and not WorkPac.  He said he took the self-test unit home on 25 January.  He agreed he knew he was going to smoke cannabis that night when he took the self-test unit.  He said he did the self testing because he was educated to do that, and it was an honest mistake that he believed he was fit for work. 

1. In the Applicant’s submission it was put that the policy inconsistencies and lack of procedural fairness and transparency between WorkPac and Batchfire policies are setting up WorkPac employees to fail at Batchfire. If an employee takes a test supplied by Batchfire home and gets a negative reading, it is reasonable to believe that they are fit for work. But as Batchfire used a test with a 15 ng/ml threshold like what was used to justify the Applicant’s dismissal, when their own policies state a much higher threshold of 25 ng/ml must be used, it is impossible to do the right thing or comply with their processes.

1. The Applicant referred to the Full Bench decision in Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 32 at 79[8] which stated:

“This Full Bench has some experience of applications involving the application and efficacy of such workplace policies. We are not persuaded that urine testing, the agreed method of drug testing at Harbour City, is a guide as to the actual presence for marijuana in an employee’s system or any impairment arising as a consequence. It is a testing system which in this case indicated past use and not present impairment.”

1. The Applicant submitted that this is further supported by the recent Fair Work Commission case of Lee Witherden v DP World Sydney Limited[2025] FWC 294 at [157] where it was stated:

“However, where the purpose of testing is to manage the risk of impairment, I have some difficulty with a testing regime that can eliminate the possibility that a person is intoxicated by cocaine (by the person testing negative to cocaine) but can deem a person unfit for work on the basis of prior cocaine use without explicitly advising the employees of this possibility”

1. Regarding the manner of the testing, being by saliva, the Applicant argued that the wording in his Casual or Maximum Term (FTM) Terms & Conditions of Employment document states “employee must not have a blood alcohol level or drug concentration level (whether tested by breath, urine or blood) above 0%”.

1. He argued that it is therefore outside of the scope of this policy for the Respondent to then attempt to infer the term ‘or saliva’ into this agreement.

1. Further, the Applicant submitted that using tests with cut off limits, it would also suggest that WorkPac’s policy was not that of “zero tolerance” as they assert, as any drug test with a cut off limit that did not show a result above zero, should result in disciplinary action, as in the Applicant’s case. Therefore, he argued it is safe to say that the Respondent, being unable to identify people with a level of less than 15ng/ml cut off limit of the tests being conducted, did not terminate their employment as they did his, and therefore do not offer procedural fairness that they assert, treating every individual that breaches their alleged ‘zero tolerance’ policy in the same way that the Applicant was instantly terminated.

1. The Respondent submitted that these matters are irrelevant to the present application for two separate reasons. First, the Applicant states that the obligation under the Employment Contract is to comply with the Batchfire Policy “and/or” WorkPac’s policies and appears to suggest that compliance with WorkPac policies is therefore not essential. However, while those words do appear on page 7 of the Notice of Offer, an additional term on page 8 of the Notice of Offer expressly states that it “is a term of employment that you comply with all WorkPac Policies as found on the WorkPac public website:

1. The same obligation is also contained in clause 14 of the Terms and Conditions of Employment. To the extent there are any inconsistencies between the WorkPac Policies referred to in the Employment Contract and the Batchfire Policy, WorkPac Policies take precedence. Therefore, it is not the case that the Batchfire Policy takes precedence over WorkPac policies. As set out in the Show Cause and Termination Notice, the Respondent relied on the breaches of WorkPac policies, not the Batchfire Policy.

1. Second, the “Prescribed Limit” is defined in the Batchfire Policy as “the levels at which the saliva screening by the drug testing unit will return a positive result”, which refers to the sensitivity of testing units only. The Respondent submits that the level of 25 ng/ml described is not relevant to the question of whether the Applicant was in fact impaired or under the influence of THC at the time of attending work. The Respondent is not aware of any documentation that suggests a level below 25 ng/ml means a person is not impaired or under the influence, and no such evidence has been submitted by the Applicant. The Australian Standards referred to by the Applicant do not say anything at all about when a person becomes impaired or under the influence.

1. The Respondent submitted that the Applicant admitted to having consumed marijuana at several points: to the paramedic, Mr Quarmby; in his show cause response; and in his submissions to the Commission. The admissions (of past drug use without failing a test) from the Applicant was corroborated by the independent Pathology THC Test Results which indicate that he recorded a level of 15 ng/ml for THC on a sample collected on 26 January 2025, and a level of 17 ng/ml for THC on a sample collected on 27 January 2025.

1. The Respondent submitted that the Applicant relies on whether the level of THC in his system was more or less than certain indication thresholds. In particular, the Applicant alleges that under the “Batchfire Fitness for Duty – Drugs” policy, any level below the “prescribed limit” of 25 ng/ml is not a breach and therefore not grounds for termination. The Respondent stringently disagrees.

1. The Respondent further submitted that the WorkPac Policies also expressly prohibit any breaches of law. (WorkPac Code of Conduct, part 3.4) Driving a motor vehicle of any kind at the Mine, including a Dump Truck, with any presence of drugs in a person’s system, is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld), s.79(2AA).

1. Where the other elements of the offence are proven, the court must convict a defendant if there was a relevant drug (which includes THC) “present” in the defendant’s blood or saliva (Transport Operations (Road Use Management) Act 1995 (Qld), s.79(5)). There is no threshold level required. Any presence at all compels the court to convict.

1. Finally, the Casual or Maximum Term Employee (FTM) Terms & Conditions of Employment at 7.19 requires that “The employee (FTM) acknowledges and agrees that the employee (FTM) must not have a blood alcohol level or drug concentration level (whether tested by breath, urine or blood) above 0% at any time that the employee (FTM) performs work or duties under an assignment. Breach of this requirement will be grounds for immediate termination of the employee (FTM)’s employment.”

1. The Respondent contended that the presence of THC in the Applicant’s system is, in itself, sufficient evidence that he was under the influence of drugs at the relevant time. The policy documents do not state or require any particular level of influence or intoxication to be proven.

1. The Respondent submitted that in those circumstances there was a valid reason for termination, namely the breach of the WorkPac Policies and breach of the Employment Contract because the Applicant presented to work to operate heavy machinery for the Assignment at the Mine two days in a row with THC in his system.

1. The Respondent relied on Craig Hancock v DP World Brisbane Pty Ltd[2022] FWCFB 142, at [25] and [39] to [44] where the Full Bench upheld the finding of a valid reason for termination. Despite a challenge to the testing process and employer’s policy which provided for dismissal, a valid reason was held to have been present in circumstances where there was evidence of the chain of custody and the employee had openly admitted consuming cannabis prior to attending work.

1. The Respondent also relied on Rodney Roach v Pacific National Services Pty Ltd[2022] FWC 103 where Saunders DP held at [55] and [60] that where the employee had smoked cannabis two or three days earlier, the decision to attend work and perform a safety critical role so soon after consumption was reckless behaviour and potentially placed him and his team members at risk of serious harm. Given the Applicant’s Assignment required him to operate heavy machinery for a 12.5 hour shift, this is submitted to be an analogous safety critical role.

1. The Applicant referred to the case of Reece Goodsell v Sydney Trains[2023] FWC 3209, where the Commission held that there is a distinction between a valid reason for dismissal (such as a positive drug test), and the fairness of the dismissal process. That although a positive drug test may justify a dismissal, it does not guarantee that it will be considered fair, especially in the case of a long and unblemished work history with the company. This is further supported in the case of Lee Witherden v DP World Sydney Limited[2025] FWC 294 at [3], [4] and [230-232].

1. The Applicant also argues that the words in the Respondents policy “(whether tested by breath, urine or blood)” in reference to readings above 0% does not refer to saliva testing.  The Respondent submits the fact that the use of the words does not include the word saliva, the intent of the policy  at 7.18 is that someone is not to report to work with drugs in their system. 

1. The Respondent acknowledged that there was a dispute about whether the Applicant should have been tested for cause on 26 January 2025.  The Respondent submitted however there was at least one non negative test on both 26 and 27 January. 

1. The Respondent also acknowledged the Applicant took issue with the procedure Batchfire followed and the manner in which its testing was undertaken, however the Respondent submitted that it did not undertake the testing process, and Ms McKinley was not there at the time. 

1. The Respondent submits that a substantial and wilful breach of policy will generally constitute a valid reason for dismissal however accepts all the circumstances need to be taken into account. 

1. The Respondent submits that under the Employment Contract the Applicant was required to comply with WorkPac’s Policies and Procedures which included the Code of Conduct, the Fitness for Work Policy, the Employment Guide in addition to the terms and conditions of the contracts. 

1. The Respondent submitted there were a series of breaches of policies including:

• The Applicant was not fit for work;

• The Applicant was under the influence of drugs,

• The Respondent has zero tolerance of Reporting for work with drugs in your system,

• The terms and conditions of employment says you can’t have a drug concentration level above zero percent.   

1. The Respondent submits that in that context, the Respondent was provided pathology results from Batchfire which confirmed a positive result for THC on both days and therefore it is unsurprising that a show cause was issued on 31 January 2025. 

1. The Respondent submits the show cause response from the Applicant admitted to smoking marijuana before attending work, admitted that testing occurred on both days, and admitted that non negative results arose on each day.  The Respondent accepted that the Applicant disputed the veracity of two of the initial tests, however said the Applicant then provided B samples to the paramedic on both days, being the third test on each day.

1. The Respondent submitted that the Applicant relied on the fact that he had used the self testing units to say he was okay for work, however submitted the termination notice found that the policy breaches was substantiated based on the facts. 

1. The Respondent submitted the Applicants evidence about having a mental health condition requiring self-medication should be treated with caution given he had not been to a doctor, and he previously had mental health issues and had obtained other prescriptions.

1. The Applicant noted several alleged procedural flaws with the testing process on both days, as outlined above, including:

1. the denial of choice of his witness for the testing and being assigned a Supervisor;

2. the reason given for the testing being changed from ‘for cause’ to ‘random test’ between what he was orally informed of and what appeared on the show cause letter and termination letter;

3. being tested for no valid reason – no ‘cause for concern’ factors were present, and he was given a green light when he scanned on to site at the commencement of the shift on 26 January 2025 so was not selected for a ‘random’ drug test

4. the correct process for a ‘cause for concern’ test was not followed

5. potential procedural failings with 27 January 2025 testing including having already opened testing kits and reading results well past their manufacturer’s instructed window

6. an alleged amendment to the result on declaratory paperwork from negative to non-negative, which was not initialled by the Applicant but someone else while he was not present

Relevant legislation

1. Section 387 of the Act sets out the considerations when considering if a dismissal was harsh, unjust or unreasonable:

“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.”

Submissions

Valid reason

1. The Applicants Notice of Offer expressly states that it “is a term of employment that you comply with all WorkPac Policies as found on the WorkPac public website:

1. The same obligation is also contained in clause 14 of the Terms and Conditions of Employment. The WorkPac Policies take precedence.

1. The Applicant admitted to having consumed marijuana which was corroborated by the independent Pathology THC Test Results.  

1. WorkPac Policies prohibit any breaches of law. (WorkPac Code of Conduct, part 3.4) Driving a motor vehicle of any kind at the Mine, including a Dump Truck, with any presence of drugs in a person’s system, is an offence under the Transport Operations (Road Use Management) Act 1995 (Qld), s.79(2AA).

1. Finally, the Casual or Maximum Term Employee (FTM) Terms & Conditions of Employment at 7.19 requires that “The employee (FTM) acknowledges and agrees that the employee (FTM) must not have a blood alcohol level or drug concentration level (whether tested by breath, urine or blood) above 0% at any time that the employee (FTM) performs work or duties under an assignment. Breach of this requirement will be grounds for immediate termination of the employee (FTM)’s employment.” Presence of THC in the Applicant’s system was a breach of the policy.

1. I am satisfied in the circumstances there was a valid reason for termination, namely the breach of the WorkPac Policies and breach of the Employment Contract because the Applicant presented to work to operate heavy machinery for the Assignment at the Mine two days in a row with THC in his system.

Notification of reason

1. The Respondent submitted that its representatives called the Applicant on 28 January and 31 January 2025 to first note the Initial THC Test Results, and then to explain a show cause notice would be issued. Further, the Respondent issued a Notice to Show Cause to the Applicant on 31 January 2025. On 2 February 2025, the Applicant provided a response to the Show Cause.

1. The Respondent submitted that after considering the Applicant’s Show Cause Response and the other evidence, the Respondent issued the Termination of Employment letter to the Applicant on 4 February 2025.

1. The Applicant submitted that he agreed that the Respondent issued a Show Cause and Termination Notice notifying of a reason. Although he disagreed that it was a valid reason in the circumstances.

Opportunity to respond

1. The Show Cause was received by the Applicant on Friday, 31 January 2025 at 3:48pm. The Show Cause directed him to respond before 5:00pm on Monday, 3 February 2025.

1. The Respondent submitted that by issuing the Show Cause letter, the Applicant was given the opportunity to respond to the valid reason for dismissal, and did in fact respond in the Show Cause Response.

1. The Applicant disagreed that he was given an opportunity to respond. Although he was provided the Show Cause, he said he was only allowed a weekend and one business day to respond.

1. He submitted that on a weekend, WorkPac’s EAP Services run on a diminished capacity with only one clinician available on Saturday mornings. This effectively made it impossible for him seek out their services even though he was seemingly “encouraged” to by the Respondent. Due to the explicit words in the Show Cause directing him not to contact anyone, the Applicant’s evidence was that he was afraid to speak with anyone, seek legal or professional help, obtain any advice or even ask for evidence to support his claims. He said that by depriving him, of his right to discuss the matter with anyone he was unable to confide in a support person.

1. The Applicant contended that his Show Cause response was clearly clouded by his mental health issues as the whole situation had caused him excessive stress and anxiety. He said if he had been able to discuss this matter with a support person, or seek advice regarding his Show Cause Response, and was afforded reasonable time within business hours, it would have been move comprehensible.

1. His evidence was that in reflecting on his Show Cause Response, it is evident by the incoherent, grammatically incorrect, and rambling nature of his thoughts, that he was unable to put together a solid argument grounded in fact and evidence. He alleged that the Respondent was well aware of his mental health illness prior to these allegations, as it is a requirement of his employment that he is assessed annually.

1. He said he again demonstrated his transparency and willingness to participate in the investigation process where in his Show Cause Response he stated, “I was so embarrassed and disgusted in myself because I didn’t like anyone knowing that I partake in taking this substance every now and then for self-medicating reasons which I am not proud of, let alone failing my first test”. He alleged that the use of this statement by the Respondent to justify his termination should instead be further evidence of unfair dismissal.

1. The evidence indicates the Applicant was given an opportunity to respond to the allegations. 

Refusal of a support person

1. The Respondent did not require the Applicant to attend any discussion in person or via any technology, and the Respondent therefore submitted there was no unreasonable refusal to allow a support person. The Applicant was given the opportunity to respond in writing to the Show Cause.

1. The Applicant contended that he was prevented from speaking with or engaging in any discussion with anyone other than Ms McKinley or Workpac’s ER team. He submitted that this effectively amounted to the refusal by the Respondent for him to have a support person present to assist in any discussions. This included the times that Ms Mckinley called him to discuss the matter.

1. The evidence does not disclose any refusal by the Respondent for the Applicant to have a support person. 

Size of enterprise and availability of human resource specialists

1. The Respondent acknowledged that as a large employer with a large workforce, it is of size to apply appropriate procedures in relation to dismissal, and it has dedicated human resource management specialists internally. However, it is submitted that no deficiency in the Respondent’s process has been identified.  These are neutral considerations. 

Other considerations

1. The Respondent asserts that the only relevant matter is the equal treatment of the Applicant with other employees in similar circumstances.

1. However, the Applicant said there should not be a “one size fits all” determination that should be applied by the Respondent, and each individual’s circumstances should have been taken into consideration. The Applicant submitted that his personal factors that should have been taken into consideration were:

1. His mental illness which was previously known to the Respondent.

2. The use of the prescription medication was in correlation with his mental health illness.

3. His cooperation, transparency and remorse as previously established and confirmed in Lee Witherden v DP World Sydney Limited[2025] FWC 294 at [133] [138], [209]. As confirmed by the Respondent, prior to being tested on the first day, the Applicant submitted that he honestly advised that he had smoked a small amount of cannabis the night before due to mental health issues. He also cooperated with Batchfire’s alleged fictitious requirements to be tested, to his own detriment, when Batchfire did not comply with their own policies and instead used his ignorance, to obtain testing outside of their own policies. The Applicant said he had also spoken with Ms McKinley via text and phone calls in an endeavour to assist with all investigations under the mistaken belief that she was also investigating his claims. He said he was therefore cooperative, remorseful and honest throughout the process.

4. There have been no other breaches of any WorkPac or Batchfire policies in the four years that he was employed. Lee Witherden v DP World Sydney Limited[2025] FWC 294 at [218].

5. The Applicant said he has been a model employee for almost four years with WorkPac;

6. The amount of THC detected was a ‘trace’ amount, and not high levels which supports his assertion that he smoked the night before attending work and only consumed a small quantity.

vii.He was proactive in attempting to test at home to determine if he was fit for work prior to attending the site.

1. Workpac had closed the door to any of his submissions or his show cause, effectively refusing to give him the genuine opportunity to respond.

2. His concerns raised were not investigated by the Respondent.

3. WorkPac had other avenues available to them other than termination. This was supported by Ms McKinley, who  “determined the appropriate cause of action” was termination.

4. He has two young children to support financially and a mounting child support debt, which he believes to be in excess of $4,500 that has been caused by this harsh and unfair termination.

xii.The Respondent’s policies are both conflicting and unclear and often deflect to Batchfire’s policies but then tried to claim theirs take precedent.

1. I found the Applicant to be an honest witness who answered questions directly, and did not try to tailor his evidence in a self-serving way.  I have no doubt that he was genuinely shocked and surprised when he returned non-negative tests at work, because I accept his evidence that he had previously obtained a self testing kit from Batchfire to test whether he was fit to attend work, and had conducted a self test before work on 26 January 2025 that returned negative self-test results at home.  I have no doubt that had the self-tests provided to him by Batchfire returned a non-negative result he would not have attempted to work, and would have accessed personal leave as the Batchfire policy contemplates.   

1. The WorkPac Employment Guide at paragraph 12 refers to a requirement to present for work in a fit state, and free from the effects of illegal drugs or prescription drugs.  I have no doubt the Applicant believed he was incompliance with this requirement. 

1. The Casual or Maximum Term Employee (FTM) Terms and Conditions of Employment document at clause 3.1 identifies the Notice of Offer as coming first in the order of precedence and Clause 6 appears to incorporate the site policies of WorkPac’s client as part of the terms and conditions of employment and Notice of Offcr.  I agree with the Applicant that it is somewhat confusing, and even the Respondents witness had some difficulty explaining how the policies of WorkPac and Batchfire were intended to operate in the event of conflict, although she maintained WorkPac’s took predence. 

1. The evidence points to a number of procedural failures in the testing methodology used by Batchfire which has worked to the detriment of the Applicant.  The Respondent acknowledged there was a dispute about whether the Applicant should have been tested for cause.  The reason for the Applicant being  tested did not appear to fit within the meaning of for cause testing within the policy.   

1. His first test on 26 January was non negative and his second was negative.  According to the policy he should have returned to work under the Batchfire Policy.  The completion of the further sample that day does not appear to be consistent with Batchfires policy. 

1. He was directed to attend work the following day and he did this as directed.  He again undertook a self test before reporting for work on 27 January 2025 and it again produced a negative result.  He submitted to another test on reporting to work on 27 January and it again initially produced a negative result.  This was confirmed by the supervisor and they both witnessed the chain of custody document. 

1. Whilst there was no direct evidence called by the Respondent to address exactly what occurred in relation to this test, the Respondent’s case is that it changed from being a negative test result to a non negative test result, after the negative test had been recorded and the Applicant had returned to work.  It appears this probably occurred outside the window of time for a valid test and appears to be in breach of the chain of custody requirements and the paperwork was changed to a non-negative result without the Applicants knowledge. 

1. A further test was then conducted and on the evidence this test was already unsealed and not conducted in conformity with Batchfires policy as it did not comply with the chain of custody requirements and this test produced a non negative result.  The Applicant requested a further test as he entitled to do under the policy and this was initially denied. 

1. This decision was later reversed however by this point it appears from the evidence the Applicant became exasperated and simply submitted to a B sample test. 

1. Ms Mckinley’s investigation into the allegations did not look into the procedural failures that were raised by the Applicant and merely adopted the laboratory results as the reason for termination. While I have found the Respondent had a valid reason for termination, that is not the only consideration under section 387 and all of the circumstances need to be taken into account. I am satisfied that Ms McKinley did not take into account all of the circumstances despite having had an opportunity to take them into account following the Applicants show cause response. The Respondent accepted Ms McKinley was aware of the personal circumstances of the Applicant concerning his family at the relevant time, and that he said he had conducted negative self tests before coming to work on both days, and returned one negative result at work on 26 January, and one negative result on 27 January that Batchfire later maintained had changed after it had been signed off as a negative result.

1. I have found some support in the evidence for the Applicants argument that by completing and returning a negative self test on both 26 January and 27 January provided by WorkPac’s client, and also being directed to work his shift on 27 January by Batchfire, in circumstances where the self tests are calibrated differently to the tests at work, it sets an employee up for failure.   

1. I accept that Applicants evidence that he smoked approximately half of a joint of prescription cannabis medication on the evening of 25 January and went to bed at about 8.30pm that night.  I accept the Applicant self tested on both 26 and 27 January before attending for work on both days and I accept on both occasions that self tests returned a negative result. 

1. I accept the Applicants evidence that he did not consume any cannabis between 26 and 27 January 2025.  The Applicant had no prior issues during his employment. 

1. The Respondent called no evidence to address the Applicants criticisms of the testing procedure adopted by Batchfire, including the deficiencies in the chain of custody on 27 January.  I accept on the evidence that the second test on 27 January had already been opened when the Applicant arrived. 

1. It is clear the B sample laboratory tests for both 26 and 27 January produced positive results for the presence of THC in the Applicants system, however I have accepted the evidence of the Applicant that he did not consume any cannabis on the evening of 26 January or at any time before reporting for work on 27 January.  On that basis, the fact that the Applicant recorded negative self tests on both days using the employer provided self tests, and also recorded negative results at work, supports the conclusion that to the extent that there remained THC in his system on both days, it was a negligible amount as it was not detectable by several of the tests on both days before being sent to the laboratory.  The B sample laboratory tests found a small presence of THC at 15ng/ml and 17ng/ml. 

1. It is not in dispute that on 26 January 2025 after having been sent home that day, the Applicant was contacted by his supervisor and directed to report for work the next day. 

1. In circumstances where the Applicant had recorded both a negative and non negative result on 26 January 2025, and was sent home and subsequently directed to report for his shift the following day, it is completely understandable that the Applicant, having recorded a negative self test on the morning of 27 January, fully expected he was fit to work that day.

1. I have considered each of the authorities that both parties have referred to in support of their respective cases.  In my view none of the cases referred to are on all fours with the specific facts in this matter, and turned on facts distinguishable from the facts here and therefore are of little assistance. 

Conclusion on whether dismissal was Unfair

1. I have taken into account each of the matters that’s I am required to consider under section 387 of the Act. Whilst I have concluded that the Respondent had a valid reason for dismissal, the investigation conducted by the Respondent did not take into account all of the circumstances, and I have concluded the decision to terminate the Applicant was harsh given all of the circumstances, including the Applicant taking the proactive step of self testing before attending for work as he had been educated to do and returning negative tests, deficiencies in how the testing was undertaken, his unblemished work history, his personal circumstances, and the financial impact on him.

1. As Ms McKinley agreed during her evidence as the decision maker, there Respondent had other options open to it other than to dismiss the Applicant.  As I have determined the dismissal was harsh, I have determined it is also unfair in the particular circumstances of this case.    

Remedy

1. The Applicant submitted that he did not seek reinstatement on the basis that he recognised that the relationship between himself and WorkPac is irrevocably broken.  I am satisfied in all the circumstances of this case reinstatement would not be an appropriate remedy.  Consideration must now turn to the alternative remedy of compensation.  The Applicant sought the maximum amount of six months' pay. 

1. I have adopted the approach in Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21 to assess compensation. The Applicant submitted his hourly rate of pay was $70.90 and he worked 175 hours per month. The Respondent did not submit otherwise. His hourly rate of pay of $70.90 per hour multiplied by 175 hours a month equals $12,407.50 per month. $12,407.50 multiplied by six months equals $74,445. I am satisfied on the basis of the evidence and particularly his unblemished employment history that he would have remained in employment for at least another six months had he not been dismissed and therefore adopt the figure of $74,445 as the remuneration he would have received or been likely to receive had he not been dismissed.

1. The Applicant was not paid notice pay so no deduction will be made on account of notice pay.  The Applicant said that since his dismissal on 4 February 2025 he has applied for other roles however he not been successful in obtaining other employment and had no other income as at the date of the hearing on 16 May 2025.  I am satisfied that the Applicant has made reasonable attempts to mitigate his loss. 

1. I am satisfied that the Applicant presenting to work to operate heavy machinery for the Assignment at the Mine two days in a row with THC in his system was a breach of WorkPac policy that was a form of misconduct that contributed to the Respondents decision to dismiss him, and on that basis I intend to reduce the amount of compensation awarded by 50%.  That reduces the amount of compensation to $37,222.50. 

1. There has been no suggestion that an order of $37,222.50 in favour of the Applicant will threaten the viability of the Respondent.  There is no basis to further reduce the amount for contingencies as the amount to be awarded is less than the amount of income the Applicant would have earned had he not been dismissed between the time of his dismissal and the time of the hearing in May 2025. 

1. The Applicants period of employment with the Respondent was sufficiently long that the amount of compensation should not be further reduced on the basis of his length of his service. 

1. There are no other matters that I consider relevant in determining the amount of compensation.

Conclusion

1. I had determined to issue an order that the Respondent pay to the Applicant the sum of $37,222.50 gross taxed according to law and applicable superannuation on that amount within 14 days of the date of this decision.  An order to this effect will be issued separately and concurrently with this decision. 

COMMISSIONER

Appearances:

D Cruikshank, for the Applicant
D Gosewisch, for the Respondent

Hearing details:

2025
Brisbane (by video)
16 May.

[1] Exhibit 1.

[2] Exhibit 2.

[3] Exhibit 3.

Printed by authority of the Commonwealth Government Printer

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