Michael Sheldon-Collins v Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum
[2018] FWCFB 5764
•13 SEPTEMBER 2018
| [2018] FWCFB 5764 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Michael Sheldon-Collins
v
Broadspectrum (Australia) Pty Ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum
(C2018/3569)
VICE PRESIDENT CATANZARITI | SYDNEY, 13 SEPTEMBER 2018 |
Appeal against decision ([2018] FWC 3420) of Deputy President Clancy at Melbourne on 8 June 2018 in matter number U2017/12308.
[1] On 29 June 2018 Michael Sheldon-Collins (the Appellant) lodged a notice of appeal in the Commission against a decision of Deputy President Clancy issued on 8 June 2018 1 (Decision) in which the Deputy President dismissed Mr Sheldon-Collins’ application for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (FW Act). The Deputy President determined that the dismissal of the Appellant by his former employer, Broadspectrum (Australia) Pty Ltd T/A Broadspectrum (Broadspectrum, the Respondent), on 8 November 2017 was not harsh, unjust or unreasonable.
[2] An appeal under s.604 of the FW Act is an appeal by way of rehearing and the Commission’s powers on appeal are only exercisable if there is error on the part of the primary decision maker. 2 There is no right to appeal and an appeal may only be made with the permission of the Commission.
[3] This appeal is one to which s.400 of the FW Act applies. Section 400 provides:
(1) Despite subsection 604(2), the FWC must not grant permission to appeal from a decision made by the FWC under this Part unless the FWC considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.
[4] In the Full Federal Court decision in Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 as “a stringent one”. 3 The task of assessing whether the public interest test is met is a discretionary one involving a broad value judgment4. In GlaxoSmithKline Australia Pty Ltd v Makin a Full Bench of the Commission identified some of the considerations that may attract the public interest:
“... the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters.” 5
[5] It will rarely be appropriate to grant permission to appeal unless an arguable case of appealable error is demonstrated. This is so because an appeal cannot succeed in the absence of appealable error. 6 However, the fact that the Member at first instance made an error is not necessarily a sufficient basis for the grant of permission to appeal.7
[6] On 9 August 2018, we heard the parties on permission to appeal and the substantive appeal. Mr J Murphy of the United Firefighters Union-Victorian Branch appeared for the Appellant, and Ms B Rauf of counsel sought permission to appear for the Respondent. Pursuant to s.596(2)(a) of the FW Act, we have determined to grant permission to appear for the Respondent as it would, in our view, enable the matter to be dealt with more efficiently taking into account the complexity of this appeal.
The Decision
[7] The Appellant commenced employment with the Respondent in 2001 as a firefighter. Following a seizure at work in April 2014 his licence to drive heavy or medium rigid vehicles was cancelled by VicRoads. When he resumed work he performed alternative duties as a watch room operator, without loss of pay. 8
[8] In 2017, following proceedings in the Commission, the Respondent agreed that the Appellant could return to firefighting duties, subject to the Appellant undergoing a full medical test, which included a drug test. 9
[9] On 16 September 2017, during paid time, the Appellant attended a medical centre and provided a urine sample, which subsequently tested as ‘non-negative’. On 26 September 2017 he provided a further urine sample which similarly indicated the presence of THC. This second sample was retested and the positive result confirmed. 10
[10] The Respondent, after having given the Appellant an opportunity to respond to a series of concerns it held about him as a result of the positive drug test, dismissed the Appellant for misconduct.
[11] The Deputy President found that the Appellant had committed a reckless breach of the Respondent’s Drug and Alcohol Procedure (the D&A Procedure) and that this provided a valid reason for his dismissal. 11
[12] The Deputy President noted that all the Respondent’s sites, workplaces and facilities are required to participate in the testing regimes outlined in the D&A Procedure and that the procedure provides for urine testing in certain circumstances, including transfer into a safety sensitive role. 12 The Deputy President also noted that it is a breach of the D&A Procedure to return a laboratory confirmed positive drug test, and that investigations are conducted according to the Respondent’s Fair Play model ‘to determine culpability and recklessness of the breach’.13
[13] The Deputy President noted that the Fair Play model, inter alia, provides a guide for the discussion of behaviours identified, patterns of behaviour, the underlying motivation and any extenuating circumstances. 14
[14] The Deputy President continued:
‘The Fair Play model addresses “reckless behaviour” and states:
“When team members break a well known rule to gain a benefit or advantage or through simple disregard for known risks and/or work standards, then it is reasonable that there should be a personal consequence.
The consequence for human error must be different from a violation. An error may result from a lack of skill, training or knowledge. A violation is a deliberate act that knowingly contravenes our systems, processes and policies.”
The flow chart forming part of the Fair Play model, asks a series of questions regarding individual behaviour, including “[d]id the team member intentionally not follow the procedure without thinking or caring about the consequences?”
It then describes the behaviour type in which an affirmative answer is given to this question as a “reckless violation”.’ 15
[15] The Deputy President rejected the contention that the Appellant was not at work when he provided both the first and second urine samples. 16 The Deputy President also rejected as irrelevant to a breach of the D&A Procedure the Appellant’s submission that he was not under the influence of marijuana either at the time he worked his last shift or when the test was taken, pointing out that it is a breach of the D&A Procedure to return a laboratory confirmed positive drug test.17
[16] The Deputy President also dismissed a submission from the Appellant that the D&A Procedure, to the extent that it imposed additional obligations on him beyond those contained in the enterprise agreement governing his employment 18 (the agreement) with respect to alcohol and drug testing, had no effect on his employment and could not be relied upon to provide a valid reason for his termination. In adopting this position the Deputy President adopted the reasoning of the Full Court of the Federal Court in Wagstaff19.
[17] The Appellant relied on clauses 1.6(ii) (which provided that up to the nominal expiry date of the agreement neither the employees nor the employer would seek any changes to conditions of employment) and 3.2.3 (which, inter alia, prohibits employees reporting for duty while affected by any drugs or alcohol).
[18] In Wagstaff Buchanan and Katzmann JJ considered a ‘no extra claims clause’ that provided that the agreement in question was intended to deal comprehensively with all the matters which pertained to the employment relationship between the employer and its employees, and that neither party would during the term of the agreement pursue any further claims and demands however described whether or not the matter was specifically addressed in the agreement. They stated that, despite this clause, the agreement in question could not be construed as dealing comprehensively with all matters relating to the employment relationship. In particular they found that it was not the intention of the agreement to inhibit either party taking steps to improve safety at the workplace.
[19] The Deputy President noted that the agreement, as in the agreement dealt with in Wagstaff, did not, in express terms, prevent drug testing, nor did it provide any mechanism for drug testing. The Deputy President found that clause 3.2.3 was not an exclusive or exhaustive statement of the powers available to the Respondent to manage drug and alcohol issues in the workplace, and that for the reasons outlined in Wagstaff the agreement should not be construed as dealing comprehensively with all matters relating to the employment relationship between the Appellant and the Respondent. 20
[20] Adopting a similar approach to that taken in Wagstaff the Deputy President noted that the agreement contained clauses which recognised that the implementation of OH&S programs is an integral part of the continuous improvement process and that required consultation where the Respondent intended to introduce major changes that are likely to have ‘significant effects’ which were defined to include ‘the implementation of a drug and alcohol testing program’. 21
[21] The Deputy President found that the agreement did not prevent drug testing and that the D&A Procedure applied to the Appellant’s employment. 22
[22] The Deputy President also found that the Appellant having to provide a urine sample when transferring into a safety sensitive role was not a misapplication of the D&A Procedure. 23
[23] The Deputy President acknowledged that the investigation was required by the D&A Procedure to apply the Fair Play model to determine culpability and recklessness. The Deputy President considered the question included in the flow chart in the model: ‘[d]id the team member intentionally not follow the procedure without thinking or caring about the consequences’, but considered that this could not sensibly apply, if read literally, to a rule that an employee not return a laboratory confirmed positive drug test. 24 He continued:
‘Although the Fair Play model speaks of an employee intentionally not following a procedure, it goes on to refer to the employee not thinking or caring about the consequences. This seems to go beyond simple intention to embrace the essence of recklessness. Indeed, the Behaviour Type appearing below the relevant wording is “Reckless violation.” If the Fair Play model applies to the Drug and Alcohol Procedure rule that an employee not return a laboratory confirmed positive drug test, the intention appears to be that it extends to recklessness.’ 25
[24] The Deputy President then went on to analyse the conduct of the Appellant in making a conscious decision to smoke marijuana knowing he was going to be subject to a drug test less than two days later as ‘the embodiment of reckless behaviour.’ 26
[25] The Deputy President found that the Appellant had been notified of the reason for his dismissal, had been given an opportunity to respond, and had not been unreasonably refused a support person. The Deputy President considered various potentially mitigating factors but found they did not outweigh the seriousness of his misconduct. The Deputy President found that the dismissal was not harsh, unjust or unreasonable.
Consideration
[26] In seeking permission to appeal the Appellant submitted that the appeal raised issues of general importance and general application, including the extent to which conduct outside of work can be used to constitute a valid reason for dismissal, and the application of drug and testing procedures and the extent to which they must be applied according to established guidelines.
[27] The Appellant also submitted that the Decision was manifestly unjust and counterintuitive in the way that it ‘put aside the employer’s own requirement that they establish the employee’s intentions in determining whether a breach of procedure could be considered reckless…’ 27 During his oral submissions, the Appellant’s representative expanded on what he described as ‘the heart of the matter’, that is, the decision by the Deputy President that the dismissal was not unfair ‘despite a tacit acknowledgement in his [D]ecision that a literal reading of the company’s Fair Play model would have provided that no disciplinary action was appropriate for the Appellant’s alleged breach of the Respondent’s [D&A Procedure].’28 In particular it was submitted that the Deputy President was in error in effectively modifying the Fair Play model ‘to take intentions away from the centre of that model’.29
‘I think at the heart of the matter is that the Fair Play Model does require consideration of an employee’s intentions. If someone didn’t intend to breach the policy, which [the Appellant] clearly didn’t intend to do, then the model suggests that they shouldn’t be disciplined. They made a mistake.’ 30
[28] The Appellant also submitted that the decision was disharmonious with other decisions of the Commission, such as Endeavour Energy. 31
[29] We do not consider that this case attracts the public interest. In particular, we do not consider that this case raises issues of general importance. There have been a number of other Full Bench decisions dealing with employees dismissed for failing to pass drug tests. 32 The decision of the Deputy President is not inconsistent with the approach taken in those decisions. Nor do we consider that the Deputy President’s Decision is inconsistent with Endeavour Energy. That decision did not concern an employee being dismissed for failing to pass a drug test; rather it concerned whether it was unjust for the employer in question to introduce a system of random drug testing using urine rather than oral fluid.
[30] Finally we do not agree that the Decision is manifestly unjust or counterintuitive. In particular we consider that the manner in which the Deputy President dealt with the Fair Play model and its application to the circumstances before him was entirely reasonable. The Deputy President sought, quite properly, to apply the Fair Play model and the principles contained therein in a practical and sensible way. In particular that model makes a distinction between making an error or breaking a rule of which the person is unaware (which is generally to be dealt with by coaching) and reckless behaviour (which attracts disciplinary action). The Deputy President found – based on the evidence – that the conduct of the Appellant that led to his dismissal was reckless. He knew he was to be drug tested as part of his return to firefighting duties – yet he made a conscious decision to smoke marijuana less than two days before the test. That he thought he might get away with it does not mean that this behaviour was not – to use the Deputy President’s words: ‘the embodiment of reckless behaviour’. 33
Conclusion
[31] For the reasons set out above, we are not satisfied that it would be in the public interest to grant permission to appeal pursuant to s.400(1) of the Act. The application for permission to appeal is therefore dismissed.
VICE PRESIDENT
Appearances:
Mr J. Murphy of the United Firefighters Union-Victorian Branch, for the Appellant
Mr B Rauf of Counsel instructed by Ms D Parmar (Dentons) for the Respondent
Hearing details:
2018
Sydney
August 9.
1 Michael Sheldon-Collins v Broadspectrum (Australia) Pty ltd [formerly Transfield Services (Australia) Pty Ltd] T/A Broadspectrum[2018] FWC 3420.
2 This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
3 (2011) 192 FCR 78 at [43].
4 O’Sullivan v Farrer (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78 at [44] -[46].
5 [2010] FWAFB 5343, 197 IR 266 at [27].
6 Wan v AIRC (2001) 116 FCR 481 at [30].
7 GlaxoSmithKline Australia Pty Ltd v Makin[2010] FWAFB 5343 at [26]-[27], 197 IR 266; Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth[2010] FWAFB 10089 at [28], 202 IR 388, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663 at [28].
8 Decision at [4].
9 Decision at [5].
10 Decision at [6] – [8].
11 Decision at [87].
12 Decision at [22] – [24].
13 Decision at [29].
14 Decision at [34].
15 Decision at [35] – [37].
16 Decision at [56].
17 Decision at [57].
18 Transfield Services Defence Base Services (Vic) and the United Firefighters’ Union of Australia (Victorian Branch) Fire and Rescue Enterprise Agreement 2015.
19 Construction, Forestry, Mining and Energy Union v Wagstaff Piling Pty Ltd (2012) 222 IR 73.
20 Decision at [61].
21 Decision at [62] – [63].
22 Decision at [64].
23 Decision at [65] – [66].
24 Decision at [82].
25 Decision at [83].
26 Decision at [84].
27 Appellant’s outline of submissions at [40].
28 Transcript of Proceedings dated 9 August 2018, PN24.
29 Ibid PN84.
30 Ibid PN92.
31 Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian municipal, Administrative, Clerical and Services Union; and the Association of Professional Engineers, Scientists and Managers, Australia[2012] FWA 1809.
32 For example, Harbour City Ferries Pty Ltd v Mr Christopher Toms[2014] FWCFB 6249.
33 Decision at [84].
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