Michael Donovan v Austcold Refrigeration Pty Ltd
[2013] FWC 4342
•24 JULY 2013
[2013] FWC 4342 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Michael Donovan
v
Austcold Refrigeration Pty Ltd
(U2013/5653)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 24 JULY 2013 |
Application for unfair dismissal remedy; drug and alcohol testing.
[1] Mr Michael Donovan (the applicant) made an application for an unfair dismissal remedy on 14 January 2013 in relation to the termination of his employment by Austcold Refrigeration Pty Ltd (the respondent) on 20 December 2012. The application was referred to me for determination and an arbitration hearing was conducted in Sydney on 1 July 2013.
[2] At the hearing the applicant was represented by Mr C Bolger, of counsel. The respondent was represented by Ms E Brus, of counsel. Mr Donovan gave evidence on his own behalf. Evidence was given on behalf of the respondent by:
- Ms Alana Eadie (HR Assistant);
- Mr Philip Wickham (Workshop Manager); and
- Mr Bryan Bourke (Finance Director).
[3] The respondent designs, manufactures, supplies and commissions screw compressor packages for gas compression and industrial refrigeration applications. The respondent is a subsidiary of Howden Australia Pty Ltd. Both companies share some staffing functions, including human resources, as well as company policies.
[4] The applicant was initially employed by the respondent in September 2003. While he was originally employed as a boilermaker he was working as a welder at the time of his termination. He normally worked an 8 hour shift, commencing at 5:30am.
[5] All the respondent’s employees, since 2010, have been required to undergo a random medical at least once a year, including a drug and alcohol test. These medicals take place in the second half of each year.
[6] The respondent has a policy on drug and alcohol testing. 1 The policy includes the following:
- The unauthorised possession or consumption of alcohol or other drugs on the worksite prior to or during the work period.
- Assessing your personal fitness for work, before the start of work to ensure fitness for work and at the end of shift to ensure fitness to commute home.
- In the judgement of the individual’s Supervisor that the individual's fitness for work is compromised due to fatigue, illness or altered emotional state.
- Refusal to participate in pre-access/employment testing, providing false information, or returning a positive drug and/or alcohol test result during testing.
- Any use of alcohol or other drugs which results in the potential impairment of an individual's fitness for work.
- Any positive alcohol or other drug test....’
‘All Employees of Howden Australia Pty Ltd are required to present themselves at Work Sites in a condition in which enables them to carry out their normal duties expected (sic), without placing either themselves or other people on the site at risk, and may on occasion be required to co-operate and participate in alcohol or other drug testing at random or when requested.
This requirement may include:
.....
By most work sites the following is considered a breach of the Site’s Procedure and evidence that an individual is potentially unfit for work:
[7] The policy provides scope, amongst other things, for testing of employees at random, or where there are reasonable grounds to suspect an employee has a problem consistent with the use of drugs and/or alcohol, as well as following an incident where ‘reasonable cause’ exists. Breath tests are to be carried out in relation to alcohol, while urine samples are to be taken for the purpose of drug testing.
[8] The policy further provides that:
- The work Site Management concerned will advise the employee of the situation.
- Refuse entry to the site and inform the Management of Howden Australia in writing the reason/s for the ban from site.
- For a breath alcohol reading of [0.0] and [0.025] the person will be banned from the site permanently, the person may then be re-employed on other sites.
- For a breath alcohol reading of [equal to or greater than 0.025 and less than 0.05] the person will be banned from working for Howden for a period of 6 months.
- For a breath alcohol reading of [greater than 0.05] then the person will be banned from working for Howden permanently.
‘Should an employee of Howden Australia fail a Drug or Alcohol test then:
Howden Australia will take action to ensure that the person is re tested at an appropriate time and work with the employee to ensure the breach is not repeated.’
[9] The applicant signed a contract of employment with the respondent on 3 June 2010. 2 The contract included the following:
‘Austcold has policies and procedures covering operational matters, which will be varied from time to time. You must comply with these policies and procedures. Failure to comply with policies and procedures may result in disciplinary action or dismissal. Austcold reserves the discretion to vary the application of the provisions of policies, in accordance with the circumstances of particular cases.’
[10] The contract also included the following:
‘You agree to submit to random, incident related or planned drug and alcohol testing at any time as directed by Austcold. You agree that you will take whatever action is necessary to ensure that the medical practitioner or testing facility’s report can be provided to Austcold. You agree that you will sign any authority that the medical practitioner or testing facility may require before releasing the information to Austcold. You acknowledge that Austcold has a zero tolerance to drugs and alcohol and any breach of this may result in termination of employment.’
[11] Mr Bourke instructed Ms Eadie to organise the yearly medical for all staff at the Glendenning factory (where the applicant was employed) to take place on Monday 3 December 2012. Ms Eadie telephoned Mr Wickham early on the morning of 3 December 2012 to advise him that all employees had to attend the Mt Druitt Medical Centre that day at scheduled times to undergo their medical.
[12] Prior to providing his urine sample, the applicant told Mr Wickham that he was worried that he would not pass the test because he was at a party on the weekend and it was likely that his drink was spiked. In the event the applicant’s urine sample tested positive for methamphetamine. The applicant was stood down on full pay. The sample was then sent away for further analysis. On 7 December 2012 the Medical Centre indicated that the subsequent testing had returned another positive result, confirming the presence of methamphetamine. Ms Eadie contacted the applicant on his mobile phone to arrange a meeting to discuss the results. The applicant indicated that he had to go to Queensland for a family funeral and so would not be available during the following week. It was agreed that the meeting would take place on 17 December 2012.
[13] On Monday, 17 December 2012, at about 9am, a meeting was held with the applicant, Mr Bourke, Mr Wickham, and Ms Eadie. According to Ms Eadie, Mr Bourke told the applicant that they were obviously there because of the positive drug test. He asked the applicant whether he had anything to say. According to Ms Eadie’s statement, the applicant replied:
‘I know what I have done was silly but I haven't been out very much lately with my friends, and I was out having a good time but it was getting late and I wanted to leave but my friends didn't want me to leave, so they held me down and they put something in my mouth to allow me to stay up. I've told my friends what has happened since and they all feel really bad because they know I have my life sorted out at the moment. I know it was stupid and I really want to keep my job, it won't happen again.’
[14] The management representatives held a discussion while the applicant was outside the room. Mr Bourke called the applicant back in and told him that they had decided to give him another chance - but it was a final chance and if he was in this situation again he would be dismissed. According to Ms Eadie’s written statement, Mr Bourke then said:
‘Before you start work again you will need to produce a negative sample so you will need to do another drug and alcohol test. Before we arrange another lot of tests, tell me now if you are likely to come back with a positive result for the methamphetamine and we will postpone both tests so that it is out of your system.’
[15] The applicant assured Mr Bourke that there would be no problem. According to Ms Eadie’s statement, Mr Bourke told the applicant that Ms Eadie would be in contact that afternoon with details of an appointment first thing in the morning... ‘so you can return to work straight after if you produce a negative result’. 3
[16] Ms Eadie attached to her statement a typed version of the handwritten notes she made during the meeting. According to her statement she typed up these notes a few days after the meeting. 4 The notes include the following:
- Pass another D&A test before being reinstated
- Be subject to further random drug and alcohol tests as determined by Austcold.
‘During the meeting Michael provided an explanation for his positive result being that on the Saturday before the test he was out with friends whom he hadn't seen in some time. As the night progressed he told his friends that he would be going home as he was tired. They tried to pressure him into staying as they hadn't seen him in a while but after trying to leave again and telling them he was tired and feeling drunk they sat him down opened his mouth and put something in to make him stay awake.
Michael recognised it was a silly thing to do as he was aware of the yearly medical being due. He apologised and asked to be given another chance. He indicated that it would never happen again.
The meeting was suspended whilst Bryan Bourke, Alana Eadie, and Phil Wickham discussed the next steps.
It was determined that Michael be given a final warning and be re-instated as a Boilermaker with the following conditions:
Michael was then asked to return to the room where he was advised of this outcome. Michael was also advised that failure to return a positive result (sic) may end in termination and failure to attend a test as requested would be considered a positive test result.
Michael was advised that a test would be arranged for him the following morning so that if there was a negative result we (sic) could go straight to work. Michael agreed to these terms and assured that it wouldn't happen again.’ 5
[17] During cross-examination, Ms Eadie said that she no longer had the handwritten notes she had taken at the meeting. She did not keep handwritten notes once they had been typed up into a file note. 6 She agreed that the focus of the meeting on 17 December 2012 was on the fact that the applicant had had a positive test for methamphetamine. She agreed that there had not been any concern about alcohol. However when it was suggested that the words ‘drug and alcohol test’ were not used, as opposed to ‘ we need to do a further test’ she replied
‘--- I can't recall exactly what was said, but it would have been drug and alcohol test, because that is the language that we use. It’s always ‘drug and alcohol test’. 7
[18] Mr Bourke, in his statement, said that the following conversation occurred during the meeting on 17 December 2012.
‘ “Thank you Michael for coming, as you are aware you returned a positive drug result on 3 December so we sent the results await away for further testing and when the further results came back they showed a positive for methamphetamine, what you have to say about that?”
"I was with some friends on the weekend that I had not seen for some time and I got extremely drunk and wanted to leave and go to bed, but they didn't want me to leave so they gave me something to stay awake so I could continue to party."
"It is against company policy to fail the drug and alcohol test so therefore I have no choice but to terminate your employment."
"I'm so sorry, I'm so sorry, I've got my life together now, I've just moved into a new house and I have been working really long hours trying to move and keep up with work. I love the company I don't want to leave, it was a one off and it will never happen again. I don't want to leave. I'm so sorry. It will never happen again. Please give me one more chance it will never happen again. I've got great mates here and I don't want to work anywhere else." 8
[19] Following a private discussion between the management representatives, the applicant was then invited back into the room. According to his statement, Mr Bourke said the following:
‘"I don't believe your story as to how the drugs got into your system but given your length of service and your obvious remorse that you have shared with us all, we are prepared to give you one more chance and reinstate you subject to a number of conditions. The first being that you pass a drug and alcohol test before you return to work, second that you submit to a drug and alcohol test at random at least once a month until further notice and if you fail any one of those tests you will be terminated instantly as there will be no more chances, and third, that a failure to attend any testing required of you will be considered a positive result."’ 9
[20] Mr Bourke then said that Ms Eadie would organise the test for as early as possible the next morning so that Mr Donovan could go straight to work and start earning money again. 10 During his cross-examination, Mr Bourke emphasised that drug and alcohol testing always went together. ‘The drug and alcohol is one. It’s considered one and it always happens together.’ He repeated that he had told Mr Donovan that he would be required to undergo a further drug and alcohol test.11
[21] Mr Bourke also said during his cross-examination that the applicant was told that he could go straight back to work from the medical centre, assuming the test results were negative. he results of the test would be available immediately after the test had been conducted. 12
[22] Mr Wickham, during his cross-examination, agreed that the concern at the meeting on 17 December 2012 was over the positive drug result. There was no concern about the use of alcohol. The purpose of the further testing was to make sure that the applicant was not going to test positive to drugs again. He agreed that the words ‘drug and alcohol test’ were not used, but what was said was ‘a further test’. 13 He said that he did not recall whether the words ‘return to work immediately’ were used. However he said that the applicant was told that if he passed the test he would return to work ‘so I guess the assumption was it would be that day’.14
[23] The applicant, in his statement, said that he was advised by Ms Eadie during the meeting on 17 December 2012: ‘that if you were to return another positive methamphetamine result, your employment would be terminated.’ 15 He said that Mr Bourke told him ‘you need to come clean of any substances before you come to work.’16 During his cross examination the applicant said that there was no mention of alcohol in the meeting, nor was he told he would have to undertake a ‘drug and alcohol test’.17 He said ‘I was there to submit a clean urine, which was the issue’.18 He denied that he was told he would go ‘straight to work’ after the test (assuming the results were negative) as opposed to ‘return to work’19
[24] The applicant went out on the evening of 17 December 2012 and consumed ‘more than a few drinks’. 20
[25] Ms Eadie was not able to talk to the company responsible for organising drug and alcohol tests until the morning of 18 December 2012. They told Ms Eadie that Mr Donovan was booked in for a test at 9:45am. 21 Ms Eadie then rang the applicant and told him. He said he had been waiting for the call and indicated he would go to the Mount Druitt Medical Centre where the test was to take place. There was a mix up in verifying the applicant’s identity; as a result the test took place around 10:30am. While the applicant’s urine test was negative, his breathalyser reading was a blood alcohol concentration of 0.137%. According to the applicant’s statement, he originally objected to being asked to take the breathalyser test, but did so after being told that if he did not take the test he would get an ‘automatic high range reading’.22
[26] During cross examination the applicant agreed that he had had ‘quite a bit to drink’ knowing that he was attending or was likely to be attending the medical centre in the morning - though he added “to do a urine sample.’ 23 When asked ‘that was okay by you?’ he said that he did not think he was ‘over the limit’.24 He also said ‘It didn’t matter. I was there to do a urine test. That was it. That’s all that I was going there for...My good friend had a child that night, and we had a few drinks and celebrated...It was my day off....I knew I wasn’t attending work to work the next day. I went there to do the urine, which was the whole issue. That’s all I went there for.’25
[27] The drug testing company rang Ms Eadie and advised her of the positive test result.
[28] That morning the applicant had a phone conversation with Mr Wickham. According to Mr Wickham's statement, the applicant told him that he was ‘0.13 over’ but told Mr Wickham:
‘I didn't realise I was going for an alcohol test and that I was going home straight after the test?’
[29] According to his statement, Mr Wickham replied:
‘You were told during the meeting that you would be doing both tests, both drug and alcohol, and you were told he would have to return to work as soon as you passed both tests. You've lost your job Michael.
I only thought it was a drug test and that I would be going home straight after until Alana called me to tell me it was all good and I could return to work.’ 26
[30] The applicant then left a message on Ms Eadie’s phone saying: ‘I think I've lost my job, the alcohol test came back positive can you give me a call?’ 27 Ms Eadie and Mr Wickham spoke to Mr Bourke. The latter told Mr Wickham that as his manager he needed to call the applicant and tell him his employment had been terminated. Mr Bourke then instructed Ms Eadie to prepare both a final warning letter and a letter of termination for his approval. Both the warning letter and termination letter were express posted to the applicant's residential address ‘on or about’ Thursday, 20 December 2012.28 Mr Donovan said he received both of them on 21 December 2012.29
[31] The letter of termination (dated 20 December 2012) included the following:
‘I refer to our meeting on 18 December 2012 which was attended by you, Bryan Bourke, Phil Wickham and Alana Eadie. During the meeting we discussed the results of your recent drug and alcohol test which came back positive for Meth Amphetamine. You provided an explanation for how this result occurred.
Having considered your response it was agreed that you would be reinstated subject to a clean Drug and Alcohol test. You agreed that this would not be a problem and insisted that such an incident would not happen again. It was stated at this meeting also that any further positive result would lead to termination of your employment.
Following this appointment it was also agreed that you will attend work directly after should you pass the test.
During this test however you failed the Alcohol Breath Test and returned a reading of 0.137. Considering that directly after the appointment you were to attend work means that you would have knowingly been intoxicated at work. The reading returned would have made you so impaired that you were unfit to be entrusted with your employment duties.
We consider that your actions constitute serious misconduct.’ 30
Consideration
[32] It is not in contention that the applicant was protected from unfair dismissal at the time his employment was terminated. The Small Business Fair Dismissal Code has no application, and the dismissal was not a case of genuine redundancy. The issue to be determined therefore is whether the dismissal was harsh, unjust or unreasonable. Section 387 of the Act provides that in answering this question I 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.’
[33] It is not contested that the applicant tested positive for methamphetamine on 3 December 2012. Nor is contested that the respondent chose to give the applicant a second chance at the meeting on 17 December 2012, rather than dismissing him, subject to certain conditions. One of these conditions was that he undertake another ‘test’ prior to resuming work. Mr Bourke and Ms Eadie’s evidence was that he was specifically told that the test would be a ‘drug and alcohol test’ while the applicant said that there was no reference to alcohol. It is clear that the discussion at the meeting was about his positive drug test and that there was no focus on alcohol. I give little weight to Ms Eadie’s notes of the meeting, as these were typed up some days later and are a reconstruction of the meeting rather than verbatim contemporaneous notes. Mr Wickham agreed that the words ‘a further test’ rather than ‘a drug and alcohol test’ were used. I am satisfied that there was no discussion about the precise nature of the test that would be conducted. Having said that, a reasonable person would have presumed that ‘the test’ would be similar to the type of test normally conducted on behalf of the respondent. The evidence is that such tests were normally conducted together for both drugs and alcohol. As Mr Bourke said ‘the drug and alcohol is one. It’s considered one and it always happens together.’ In other words, while the respondent did not spell out that the test would be for drugs and alcohol, it should not have been necessary to do so. Just as it was not necessary to spell out that the test would encompass drugs other than methamphetamine, it was not necessary to spell out that there would also be a test for alcohol.
[34] In the event, the applicant recorded a blood alcohol concentration of 0.137%. Under the respondent’s drug and alcohol policy a result of 0.05% would lead to a permanent ban on being employed by the respondent. As well as submitting that he had not been told he would be tested for alcohol on 18 December 2012, the applicant gave evidence that he was not expecting to return to work that day. Thus he had not actually breached the drug and alcohol policy. However it was clear that the purpose of the test was to clear the applicant so that he could return to work. There was no reasonable basis for him to assert that ‘it was my day off’. He had been suspended after the initial test and then taken a week of leave to go to Queensland. The meeting with management took place on 17 December where it was agreed that he could return to work once he undertook another test. The test took place in the morning of 18 December 2012. The results of that test were available immediately. His shift did not finish until later that afternoon. A reasonable assumption would have been that if the test results had been negative he would have returned to work straight away. In any case, the second test has to be seen in the light of what occurred at the meeting the day before. The respondent had agreed not to terminate the applicant’s employment on condition that he passed the test, which was expected to take place the next day. He did not pass that test. Given all the circumstances, including the respondent’s drug and alcohol policy, and the provisions of the applicant’s contract of employment concerning drugs and alcohol, his failure to pass the test on 18 December constituted a valid reason for the termination of his employment.
[35] The applicant was told by Mr Wickham why he was being dismissed. The applicant was not given an opportunity to respond between failing the alcohol test and being notified of the decision to dismiss him. It would have been preferable if he had been given such an opportunity. However the failure to do so must be seen in the context whereby the applicant, having failed the drug and alcohol test on 3 December 2012, had been given an opportunity to put his case, and in effect been granted a reprieve on 17 December 2012 - only one day before he failed the second test.
[36] I am satisfied that the applicant was given an opportunity to have a support person present at the meeting on 17 December 2012. I have had regard to the applicant’s length of service. I do not consider there are any other factors that are relevant.
[37] I find that having regard to all the relevant factors, Mr Donovan’s dismissal was not harsh, unjust or unreasonable. His application is dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr C Bolger, of counsel, for the applicant.
Ms E Brus, for the respondent.
Hearing details:
Sydney
2013
1 July
1 Exhibit A3, Attachment C
2 Exhibit A3, Attachment B
3 Exhibit A1, paragraph 15
4 Exhibit A1, paragraph 16
5 Exhibit A1, attachment A
6 PN330-1
7 PN326, 341-2
8 Exhibit A3, paragraph 19
9 ibid
10 ibid
11 PN624-6
12 PN636-654
13 PN457-463
14 PN472, 482
15 Exhibit D1, paragraph 6
16 Exhibit D1, paragraph 8
17 PN105-107
18 PN111
19 PN114
20 PN125
21 Exhibit A1, paragraph 18
22 Exhibit D1, paragraphs 16-17
23 PN143
24 PN147
25 PN189-193
26 Exhibit A2, paragraph 18
27 Exhibit A1, paragraphs 24-25
28 Exhibit A1, paragraph 29
29 Exhibit D1, , paragraph 22
30 Exhibit A3, attachment E
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