MH v The Respondent
[2010] FWA 7860
•14 OCTOBER 2010
[2010] FWA 7860 |
|
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
MH
v
The Respondent
(U2010/9661)
COMMISSIONER BISSETT | MELBOURNE, 14 OCTOBER 2010 |
Application for unfair dismissal remedy.
[1] This is an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act).
[2] The Applicant (MH) has been employed by the Respondent as a truck driver. He has worked for the Respondent for 16 years although he only became a permanent employee in 1997. His employment was terminated on 31 May 2010.
[3] The application was subject to conciliation which failed to resolve the matter. It was referred to me for arbitration. The matter was heard on 15 September 2010.
[4] The Applicant was represented by Mr Massy. Witnesses for the Applicant were the Applicant himself and Mr JC.
[5] The Respondent was represented by Mr Moy. Witnesses for the Respondent were:
- Site Senior Executive (IC);
- Mining Manager (PK);
- Mining Supervisor (RG);
- Mining Superintendant (DC);
- a representative from Drug Safe Australia (DW);
- a technician from Alcolizer Technology (KF); and
- a doctor from Calvary Mater Newcastle (IW).
Background
[6] The Respondent operates a coal mine in Queensland. As such it is subject to the provisions of the Coal Mining Health and Safety Act (1999) (Qld)(the Coal Mining Act).
[7] The Respondent has had a drug and alcohol policy since at least September 2001. The policy states (in relevant parts): 1
1. POLICY
[The mine] is committed to provide a safe place of work for its employees and contractors...
2. STANDARDS
The standards for drugs and alcohol at [the mine] are clear:
Alcohol | : | Nil BAC |
Drugs | : | Nil |
Prescription Drugs | : | Used in accordance with medical practitioners or pharmacists advice... |
...Consumption of alcohol on site is strictly forbidden...
4. TESTING
[The mine] has embarked on a random testing programme for drugs and alcohol of all its employees...Selected testing of individuals may also be used. Testing for alcohol and drugs will also be performed on those persons involved in accidents. Testing will be in accordance with the Australian Standard.
It is mandatory that all persons working at or visiting [the mine] participate in the testing programme.
Self-testing facilities are available at...
5. DISCIPLINARY ACTION
Refusal to participate in the testing program will result in the employee or contractor being stood down without pay...
Employees or contractors choosing to use... alcohol and attend work with alcohol... levels that exceed [the mine’s] standards will immediately have their employment or contract suspended without pay.
The employee or contractor will remain suspended until such time that they can demonstrate that they can be tested for illicit drugs and alcohol and meet [the mine’s] standard...
In the event of a person testing positive, the Mine Manager will consult a senior representative... and the two Site Safety Representatives, if on site, to decide the disciplinary action to be taken on a case by case basis. Recommended disciplinary action is detailed in the attached table. However, failure to meet [the mine’s] drug and alcohol standards in any test may result in instant dismissal or termination of contract by the Mine Manager...
Disciplinary action will be decided on a case by case basis and will consider the severity of the case, including... the job requirements and the employee’s history...
Disciplinary action decided will be in the context of zero tolerance for alcohol...
“Personnel under the influence of...alcohol put themselves and their work mates at risk. Such behaviour is not tolerated.”
Recommended Disciplinary Action.
...Be aware that failure to meet [the mine’s]...alcohol standards in any test may result in instant dismissal or termination of contract...
READING | CONSEQUENCE | ||
FROM | TO | FIRST OFFENCE | SECOND OFFENCE |
0.00 | 0.000 | No action. | No action. |
0.000 | 0.010 | Verbal warning. | Verbal warning. |
0.015 | 0.030 | First and Final Written Warning plus Suspension for the remainder of the shift. | Dismissal or Contract Terminated. |
0.035 | 0.050 | First and Final Written Warning plus Suspension for the remainder of the shift and the next shift. | Dismissal or Contract Terminated |
0.055 | and Greater | Dismissal or Termination of Contract. | N/A |
[8] The policy appears to have been most recently reissued in May 2008 as part of a ‘fitness for work’ document. 2 The key aspects of the policy as relevant to this matter are those outlined above. These have not changed since the policy was first issued in 2001.
[9] As part of their drug and alcohol policy, and in accordance with the Coal Mining Act and its related Regulations, the Respondent has a ‘self-testing’ facility. This facility allows employees to self-test for the presence of alcohol in their system prior to presenting for the commencement of their shift.
[10] On 31 May 2010 the Applicant was subject to a random alcohol test at the beginning of his shift. At the test the Applicant registered a blood alcohol concentration (BAC) in excess of .055.
[11] As a result of this reading and in accordance with the Respondent’s policy the Applicant’s employment was terminated.
Evidence for the Applicant
[12] The Applicant gave evidence that on the evening prior to the termination of his employment he had commenced consuming alcohol at approximately 4.30pm. Between then and 9.30pm when he went to bed he estimates he had consumed about 9 (standard) drinks. Each of these drinks was a 30ml nip of bourbon. He also had a ‘fairly substantial dinner’. He did not ‘feel intoxicated or overly intoxicated’ and did not believe he was ‘particularly intoxicated’ when he went to bed. 3
[13] The Applicant maintains he was aware he had a shift at work the following morning commencing at about 5.30am, was conscious he should not be intoxicated at work and was therefore ‘cautious about [his] alcohol consumption, and ensured that [he] ate a decent meal and went to bed at a reasonable hour’. 4
[14] The Applicant was aware that there was a zero limit for alcohol in his system when he was at work 5 but did not think he had any alcohol in his system.6
[15] The Applicant agrees (by virtue of sighting the signed attendance sheet) that he attended a number of sessions where the drug and alcohol policy and/or related matters were discussed. These included a meeting on 12 November 2001, 7 a meeting on drugs and alcohol in the workplace on 26 February 2001,8 a presentation on 27 August 2008 including a toolbox talk on the fatigue and fitness for work policy,9 a drug and alcohol training session on 21 October 200910 and he was present when his crew were advised on 24 May 2010 that the self-testing facility was operational.11 While agreeing that he had been at these sessions the Applicant did not agree that he remembered the content of the sessions.
[16] JC gave evidence that that drug and alcohol policy had been subject to some disagreement between the union and management. 12 He also gave evidence that the policy was being reviewed and that the proposed revised policy did not allow for summary dismissal.13
Evidence for Respondent
[17] The evidence for the Respondent is that on the morning of 31 May 2010 at around 5.25am DC walked past the Applicant and another employee and believes he smelt alcohol on them. He advised RG of this and stated that the crew should be breath tested. 14 RG’s evidence is that another crew member had also suggested to him that a breath test be carried out on the crew.15
[18] The breath test was conducted on the crew at the ‘muster area’ where the crew were waiting to go to the light vehicle - about 20 metres away - for transport to the worksite. The evidence of RG is that when he finished testing the crew he could not find the Applicant. He then sent another employee to get the Applicant who had gone to the light vehicle. 16
[19] When the Applicant was tested his BAC reading was .089. He was then retested with a BAC reading of .09. The Applicant was then taken to the first aid room by DC and RG where, about 40 minutes later, he was tested again. On this test his BAC was .07. 17
[20] PK and IC were both summoned to the site to deal with the situation. When they arrived DC and RG left the room. The Applicant was then interviewed by PK and IC.
[21] When PK and IC arrived at the first aid station the Applicant was asked if he wanted representation at the meeting. The Applicant declined the invitation to have a union representative but management insisted that he have some representation. 18 A union representative was then called to attend the meeting.
[22] The content of the drug and alcohol policy was printed out and provided to the Applicant. The Applicant denied knowledge of the content of the policy. When asked why he did not self-test at the facility provided the Applicant responded that he did not believe there was a problem. He explained that he had been drinking with his partner the evening before but had stopped drinking at about 9.30pm. 19
[23] On reviewing the situation, management considered that the ‘only possible response in order to maintain an effective drug and alcohol regime on site was to terminate [the Applicant’s] employment.’ 20 They also had concerns that the Applicant ‘had no remorse and could not acknowledge the breach’ of the policy.21
[24] IC agreed that the circumstances by which alcohol came to be in an employee’s system would be a consideration in determining the disciplinary action taken as a result of the reading, 22 and that if there had been a reason given and remorse shown it would be different.23
[25] The Respondent also gave evidence that, in addition to the training and awareness sessions conducted with respect to the drug and alcohol policy, random and blanket drug and alcohol testing was carried out. A ‘blanket test [is conducted] approximately every three months, in which case we do everyone on the mine site.’ 24 Random testing is undertaken where ‘somebody has cause to suspect that there may be a group or a particular crew that needs to be tested. Or alternatively we may just decide, “Okay, we’re going to check one particular contractor”.’25
Submissions for Applicant
[26] The Applicant submits that there is no valid reason for the dismissal, that the process leading to the termination of the Applicant’s employment was flawed and that the termination itself was harsh.
[27] With respect to whether there was a valid reason for the termination of employment the Applicant submits that
in order to determine whether a positive blood alcohol test amounted to a valid reason for termination, one must have regards [sic] to the circumstances that led to alcohol being in the employee’s system...To focus solely on the results of the test takes no account of an employee’s culpability for the test result. It’s the circumstances surrounding the employee’s consumption of alcohol that need to be examined, to determine whether or not they’re inconsistent with the contract of employment. 26
[28] The policy, the Applicant says, is flawed in that the imposition of disciplinary action is based on the result of alcohol consumption and is not related to the employee’s conduct leading up to the BAC reading. 27 In this case the employee stopped drinking at a reasonable hour the night before, ate a meal and went to bed at a reasonable hour. He was ‘mindful at all times of his obligation to be sober when he presented for work.’28
[29] It is not disputed that the Applicant consumed alcohol the day before he was due to work but the error the Applicant made was in calculating how long it would take the alcohol to be processed by his system. 29 On the Applicant’s submission the relevant question is whether this miscalculation of how long it takes to process alcohol through the system is a valid reason for the termination of the Applicant’s employment.
[30] The misconduct is this miscalculation, and this error, the Applicant submits, is not enough to provide a valid reason for the termination of the Applicant’s employment. 30 The policy on the other hand has a penalty that is determined by reference to what occurred after the misconduct - that is the blood alcohol level of the Applicant when presenting for work.
[31] The drug and alcohol policy of the Respondent was not known and not well explained to the Applicant. For the Respondent to rely on their policy as providing a valid reason for the termination of the Applicant’s employment there must be clear evidence that the Respondent has clearly communicated that policy to employees and that the employees could be reasonably expected to be aware of that policy 31 (see Debono v TransAdelaide32).
[32] The Applicant contends that in this case the policy was either obliquely referenced in meetings or that the employees were not taken to the detail of the policy at any of those meetings. 33 As such the employer cannot rely on the policy as providing a valid reason for the termination of employment.
[33] Finally, the Applicant submits that the sliding scale of penalties in the policy - that is varying penalties depending on the BAC level - means that the policy is not in such plain terms that an employer can know the consequences of their actions. If the policy is not black and white in terms of what conduct will have which consequences, the Applicant submits, it is difficult for the employer to rely on that policy to justify their actions. 34
[34] With respect to the issues of process the Applicant submits that the process was not fair to the Applicant in that the employer made decisions about the employee’s future based on answers given by the Applicant in the interview with the Respondent in circumstances where the Respondent knew the Applicant was intoxicated (in that he had a BAC of .07). The Applicant submits that knowing the level of intoxication, the Respondent should have stood the Applicant down without pay (as provided for in the policy) and not questioned him until he had a lower BAC. 35 The Respondent did not do this and proceeded to question the Applicant when he was intoxicated.
[35] Witnesses for the Respondent indicated that they did not necessarily accept the truthfulness of the answers given by the Applicant when he was questioned yet these concerns were not put to the Applicant to enable him to respond to those concerns or support his version of events. 36
[36] The Applicant submits that he is honest about his conduct on the day before his employment was terminated. This is supported by the evidence of IW whose report suggests that the Applicant’s BAC levels on 31 May 2010 were within the range expected given the amount of alcohol the Applicant says he consumed and the time at which he consumed it.
[37] Further evidence of process problems relate to the decision by the employer to call in a representative for the Applicant against his wishes. The Applicant submits that his ‘refusal to request a representative and indeed his protestations about having [the representative in question] suggests another ground of unfairness in the way in which the process was conducted.’ 37 The Applicant’s behaviour in this instance should have been a further indication that he should not have been answering questions due to his BAC level.38
[38] Finally, with respect to the harshness of the decision to terminate the Applicant’s employment, it was submitted that the termination was not consistent with the gravity of the conduct (see Bostik; 39 Byrne and Frew40), was disproportionate to the conduct (Selak v Woolworths41) and failed to take into account the Applicant’s ‘16 years of loyal service... [and that he will] have difficulty finding employment in his chosen field given his age...’42 Further the Applicant submits that his punishment was not consistent with how others in similar circumstances have been treated, in particular the treatment of Mr P who was tested and had a BAC of .09. Mr P was suspended without pay as provided for in the policy.
[39] The Applicant is seeking reinstatement.
[40] In summary the Applicant submits that:
the misconduct in this circumstance is his miscalculation on the evening of 30 May as to how much time was required to elapse to allow his body to process the alcohol that was in his system. He wasn’t reckless or careless about that matter. He adopted a reasonable approach which was consistent with what most members of the community would consider was a sufficient time. However it wasn’t, and that’s a mistake that he accepts, but in the circumstances the applicant says that it was a mistake that didn’t warrant the termination of his employment. It is indeed the type of mistake that would warrant a first and final warning. 43
Submissions of the Respondent
[41] The submissions of the Respondent are that the conduct of the Applicant which resulted in the termination of his employment was turning up for work over the limit and in breach of the Respondent’s policy. 44
[42] The Respondent submits that safety is vitally important in the context of a mining operation. 45 (Alexander v Rio Tinto Coal Australia;46 The Australian Workers’ Union of Employees, Queensland (for Charles Bellchambers) and Mount Isa Mines Limited47).
[43] The Respondent submits that, on the basis of the evidence of IW there is virtually no prospect that, having consumed the alcohol the Applicant agrees he consumed, he could have presented for work when he did and not have breached the policy. 48
[44] The Respondent submits that the Applicant:
- was trained and educated on the effects of drugs and alcohol at work as recently as 21 October 2009 and this training made clear that the acceptable level of alcohol on site was 0.00;
- was trained on the Safety and Health Management System including the drug and alcohol policy in late March 2008;
- did attend a meeting on the drug and alcohol policy on 12 November 2001;
- did attend a meeting on drug and alcohol in the workplace and screening on 26 February 2001;
- had access to the policy with hard copies located in every crib room and office on site. 49
[45] The Respondent submits that the Applicant was notified of the reason for his dismissal. On the matter of whether the Applicant was capable of responding to the questions asked of him the Respondent submits that the Applicant did not display any impairment and did not allege that he was impaired. 50 The process of testing the Applicant’s BAC and interviewing him occurred over a period of about one hour. In that time he was spoken to by four people, all of whom reached the conclusion that he was capable of answering questions.51 The Applicant’s level of impairment that affected his ability to do his job safely did not mean he was incapable of responding to questions and having a reasonable conversation and explaining his actions.52
[46] That the Applicant was questioned when he had a BAC of .07 does not mean the process lacks ‘procedural fairness because there is no requirement for the opportunity to respond to be done at a time...where the employee has returned to a point zero zero.’ 53
[47] The Applicant was not denied access to a support person and the Respondent, out of an abundance of caution, ensured he did have someone present.
[48] The Respondent submits that, contrary to the submissions of the Applicant, the consequences of breaches of the policy are clear. Whilst the employer could have chosen to take other disciplinary action under the policy this did not make the actions they did take unfair or mean that there was not a valid reason for the dismissal. 54
[49] On other matters the Respondent submits that, in the case of Mr P, the employee asked to have a BAC test done. He was, as a consequence of the BAC result, suspended without pay for two days and given a final written warning. 55 Mr P’s case can be distinguished from that of the Applicant in that Mr P displayed self awareness in that he felt he could be over the limit ‘and therefore a danger to himself and other employees and he voluntarily submitted himself to an alcohol test. On the contrary... the Applicant could not understand that he could be over the limit and a danger to himself and other employees.’56
[50] The decision to terminate the Applicant’s employment was not based on concerns that he may not have told the truth during his interview.
Consideration
[51] In determining if the Applicant’s dismissal is harsh, unjust or unreasonable I must have regard to each of the matters in s.387 of the Act.
A valid reason
[52] The Applicant was dismissed because he returned a BAC of greater than .055. The Respondent’s policy is clear. The consequence of returning a BAC greater than .055 is dismissal. The standards for alcohol on the site are clear in the policy and the consequences for a breach of the policy are unambiguous.
[53] A critical issue however is whether or not the Applicant was aware of the policy.
[54] On the evidence of the Respondent the Applicant had attended a number of training and/or information sessions where the drug and alcohol policy was discussed or matters associated with fitness for work were covered. These sessions date back to 2001 when the policy was first introduced. Whilst not all were directly or only on the content of the policy they did each raise issues about the policy, about fatigue and fitness for work and alcohol consumption, sufficient for the link to be evident.
[55] The Applicant knew, on his own evidence, that he should not present for work with alcohol in his system.
[56] I find that the Respondent took a range of measures to ensure that the Applicant (and other employees) were aware of the policy in operation at the mine. I accept the evidence of IC that when policies are discussed they are printed out and distributed to employees and that this occurred when the fitness for work policy was discussed at a ‘toolbox talk’ in 2008. I accept that hard copies of the policy are readily available in all crib rooms and offices. The fitness for work policy incorporates the drug and alcohol policy.
[57] In addition to the training and information sessions, the Respondent undertook random and blanket testing of the BAC of employees. Even if the Applicant was not aware of the policy in detail the level of random and blanket testing conducted by the Respondent must have initiated some curiosity as to what the policy was and why the blanket testing took place as often as it did. For the Applicant to maintain ignorance of the policy is not sustainable.
[58] The misconduct which resulted in the termination of the Applicant’s employment is not that he miscalculated how long it took his body to process alcohol. The misconduct is that he presented for work with a BAC in excess of that specified in the policy.
[59] I find there was a valid reason for the termination the Applicant’s employment and that was that he breached the Respondent’s drug and alcohol policy by presenting for work with a BAC in excess of .055.
Was the employee notified of that reason
[60] I find that the Applicant was notified of the reason for the termination of his employment. This was done in the discussion held with IC and PK following the taking of the third BAC reading.
An opportunity to respond
[61] I find that the Applicant was given an opportunity to respond.
[62] The Applicant was asked why he was over the limit, what he knew of the drug and alcohol policy and if he was aware of the self-testing facility. I accept that his responses to these questions were considered in determining the disciplinary action to be taken by the employer.
Support person
[63] Despite the protestations of the Applicant the Respondent insisted that the Applicant have a support person and found the union representative to undertake that role.
[64] The Applicant suggests that the support person found was not of assistance to the Applicant and that there may have been hostility between the Applicant and the union delegate. I do not consider that the support person brought in by the Respondent had a bearing on the decision to terminate the Applicant’s employment.
[65] It should be noted that the legislation does not require that the employer ensure that the employee have an independent person with them when being interviewed. Rather it requires that I take into account any unreasonable refusal of the employer to allow the employee to have a support person present. In this case the employer has not refused access to a support person. They have actively sought such a person. There is no evidence that the Applicant objected to this person or suggested there was someone else they would prefer.
[66] I find the Applicant was not unreasonably refused access to a support person.
Size of the employer’s undertaking/absence of dedicated HR personal
[67] It is not claimed that these had any effect on the procedures followed.
Any other matters
[68] This matter concerns an employee presenting for work with a BAC above the acceptable level specified in the Respondent’s policy. The Respondent’s policy is clear.
[69] The Respondent also has obligations under the Coal Mining Act. That Act does not set BAC levels that must be adhered to but rather imposes on employers, contractors and employees an obligation to not expose others to risk. 57 The related Regulations are clear. A person must not carry out a work activity at a coal mine if the person is under the influence of alcohol.58 Further the Regulation 41 (relevantly) states:
41 Safety and health management system for alcohol
(1) A coal mine’s safety and health management system must provide for controlling risks at the mine associated with the excessive consumption of alcohol.
(2) The system must provide for the following about alcohol consumption for persons at the mine--
(a) an education program;
(b) an employee assistance program;
(c) the following assessments to decide a person’s fitness for work--
(i) voluntary self-testing;
(ii) random testing before starting work;
(iii) testing the person if someone else reasonably suspects the person is under the influence of alcohol.
[70] The Respondent has in its policy met its requirements under the Coal Mining Act and associated Regulations. It is clear it takes its obligations in this regard seriously. The actions of the Respondent are not inconsistent with the obligations placed on it.
[71] The Applicant made submissions to the effect that the breach in policy was not at the most serious end of the spectrum and that the ‘Applicant did not experience any sensation of impairment that would have indicated an increased safety risk.’ 59 This, it appears, demonstrates the lack of awareness by the Applicant of the potential effect of his alcohol consumption of which the Respondent complains and which sets the case of Mr P apart from this.
[72] The Applicant alternatively in this matter seeks to reframe the misconduct to be the behaviour of Applicant that led to him being over the acceptable limit at the site. This misreads the policy. The policy is not about behaviour outside the workplace and, except that it goes directly to destroying the employment relationship, it is not relevant to this matter. This case is squarely about having presented for work with a BAC in excess of that in the policy.
[73] The circumstances that led the Applicant to register a BAC in excess of .01 (and hence the behaviour of the Applicant) may well be relevant to the Respondent in exercising the discretion available to it under the policy. If the cause of the excessive BAC was a matter outside the control of an employee this should properly be taken into account in determining disciplinary action. But this is not the case in this matter. There are no extenuating circumstances put forward such that the discretion available to the Respondent should arguably have been exercised.
[74] I have considered the actions taken by the Respondent against Mr P who also had a BAC of .09. I find however that the decision of the Respondent to place the employee on a final written warning can be distinguished from this matter.
[75] I have considered the length of employment of the Applicant and other matters raised by the Applicant.
Conclusion
[76] In all of the circumstances I find that the dismissal was not harsh, unjust or unreasonable.
[77] The Applicant has not been unfairly dismissed. The application is dismissed.
COMMISSIONER
Appearances:
C. Massy, for the Applicant.
M. Moy, for the Respondent.
Hearing details:
2010.
Brisbane:
15 September.
1 Exhibit J1 attachment IC4.
2 Exhibit J2 attachment IC2.
3 Exhibit H1 paragraphs 16-17.
4 Exhibit H1 paragraph 18.
5 Transcript PN82.
6 PN78.
7 Exhibit J1 attachment IC2.
8 Exhibit J1 attachment IC3.
9 Exhibit J2 attachment IC4.
10 Exhibit J9 attachment DW2.
11 Transcript PN97-8, Exhibit J6 attachment DC1.
12 Exhibit H2 paragraphs 10-16, Exhibit H3 paragraphs 7-8.
13 Exhibit H3 paragraphs 9-10.
14 Exhibit J5.
15 Exhibit J7 paragraph 4.
16 Exhibit J7 paragraph 7.
17 Exhibit J7 paragraphs 6-9.
18 Exhibit J4 paragraph 9.
19 Exhibit J4 paragraph 12.
20 Exhibit J4 paragraph 17.
21 Exhibit J4 paragraph 17.
22 Transcript PN284.
23 PN333.
24 PN324.
25 PN325.
26 PN533.
27 PN534, PN564.
28 PN542.
29 PN 542.
30 PN543.
31 PN543.
32 AIRC Print R8699 (7 September 1999).
33 Transcript PN550.
34 PN564.
35 PN530, PN570.
36 PN572-3.
37 PN520.
38 PN520-2.
39 Bostik (Australia) Pty Ltd v Georgevski (No. 1) (1992) 108 ALR 254.
40 Byrne v Australian Airlines (1995) 131 ALR 422.
41 Selak v Woolworths Ltd [2008] AIRCFB 81.
42 Transcript PN581.
43 PN580.
44 PN615.
45 PN619.
46 AIRC PR958811 (10 June 2005).
47 (2002) 171 QGIG 1.
48 PN657.
49 Exhibit J11 paragraphs 8-12.
50 Transcript PN673.
51 PN681.
52 PN687.
53 PN687.
54 PN701. See also Mr H v The Employer [2010] FWA 532.
55 Exhibit J11 paragraph 34.
56 Exhibit J11 paragraph 36.
57 Section 39.
58 Regulation 40.
59 Exhibit H4, paragraph 35.
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