Mr Craig Hancock v DP World Brisbane Pty Ltd
[2022] FWC 1406
•3 JUNE 2022
| [2022] FWC 1406 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Craig Hancock
v
DP World Brisbane Pty Ltd
(U2021/7533)
| COMMISSIONER SPENCER | BRISBANE, 3 JUNE 2022 |
Application for an unfair dismissal remedy – serious misconduct – breach of drug and alcohol policy – safety critical role – high range THC result – application dismissed.
INTRODUCTION
Mr Craig Hancock (the Applicant) lodged an application to the Fair Work Commission (the Commission) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the dismissal of his employment by DP World Brisbane Pty Ltd (the Respondent) was harsh, unjust or unreasonable.
The Applicant was engaged by the Respondent as a Stevedore and had been employed by the Respondent for 25 years when his employment was terminated, after testing positive for tetrahydrocannabinol (THC) – High Range, following a random drug screen on site.
The Applicant contended that his dismissal was harsh, unjust and unreasonable, and sought reinstatement and continuity of service and wages for the interim period pursuant to s.391 of the Act.
Legal representation
Mr Brendan Milne, Partner of HFW Australia, sought permission to appear on behalf of the Respondent pursuant to s.596 of the Act. Directions were issued seeking submissions addressing s.596 from both parties in relation to the Respondent’s legal representation. Permission was granted pursuant to s.596(2)(a), with reasons provided.
The matter was heard in Brisbane, with all witnesses providing their evidence there. The Applicant was represented by Mr Kirk Bond, National Legal Officer of the Maritime Union of Australia (the Union), assisted by Ms Ella Rowe, Industrial Officer for the Union. The Respondent was represented by Mr James McLean, of counsel, instructed by Mr Brendan Milne, Partner of HFW.
BACKGROUND
The Applicant commenced employment with the Respondent on 19 August 1996. At the time of his dismissal, the Applicant was engaged as a Stevedore to undertake work at the Port of Brisbane where the Respondent operates a container terminal (the Port). The Applicant was employed under the DP World Brisbane Enterprise Agreement 2020 (the Agreement).
On 11 August 2021, after working 7 hours of his rostered shift, the Applicant was randomly selected for a drug and alcohol test, in accordance with the Respondent’s Alcohol and Other Drugs Policy (the AOD Policy). The Applicant received a non-negative result for THC. The Applicant was stood down pending the outcome of confirmatory testing.
The Respondent stated that the subsequent laboratory test confirmed the presence of “11-nor-d-9-thc-9-carboxylic acid”, more commonly known as THC, in the Applicant’s urine, at a level of 562ug/L. The Respondent explained that THC is a compound formed in the body after the consumption of cannabis. The outcome of this confirmatory test was shared with the Applicant on 13 August 2021.
On 17 August 2021, the Applicant was issued correspondence inviting the Applicant to a show cause meeting on 20 August 2021 (the Show Cause Meeting). The correspondence is set out below:
“Dear Craig,
RE: Show Cause Meeting Invitation – Serious Misconduct: Breach of Alcohol & Other Drugs Policy
This letter is to confirm the outcome of a drug and alcohol test conducted on Wednesday 11 August 2021 and subsequent confirmatory testing. The results from the laboratory screening confirmed that you were positive for 11-nor-d-9-THC-9-carboxylic acid (THC) which was 562ug/L. High range under the DP World Alcohol and Other Drugs (AOD) Policy is a reading of >60ug/L. As a result, you have breached the AOD Policy, your contract of employment dated 3 May 2016, and the DP World Australia Critical Safety Commitments. Confirming as per your discussion with Greg Muscat, HR Manager on Friday 13 August 2021, you will remain off pay (excluding during your pre-booked annual leave) and are required to attend a disciplinary meeting.
Incident Details
In accordance with the Company’s AOD Policy and Procedure, you were randomly selected for a drug and alcohol test at approximately 1400 hours on your rostered day shift on Wednesday 11 August 2021. The test was conducted by Brassets in accordance with Australian standards AS/NZS 4308 and AS/NZS 4760. After providing a non-negative result for the swab test, you were then required to complete a urine test in line with the AOD Policy, which also showed as non-negative.
In accordance with the AOD Policy, you were stood down on pay and sent home pending the outcome of the confirmatory test and advised that we would contact you once a result was available. You were offered 2 cab charges to travel home safely, which you declined and elected to drive home yourself. Once the result became available and was confirmed positive for THC, you were contacted and advised by Greg Muscat on Friday 13 August 2021, and you were stood down without pay until such a time as a disciplinary meeting could be arranged.
The meeting therefore has been scheduled as per below:
Time: 1100 hours
Date: Friday 20 August 2021
Location: (redated)
This meeting will be an opportunity for you to respond and ‘show cause’ as to why the Company should not terminate your employment. You may bring along one support person if you wish. If you don’t attend the meeting as scheduled, the company will make a decision regarding your employment based on the information available to us.
Employee Assistance
We understand that is a difficult situation for you and as a general reminder, should you require additional support, you are encouraged to access DP World Australia’s CARE Program provider, “Assure.” This service is a confidential counselling and support service and is available on (number redated) or (number redated) via SMS.
If you have any questions about the above, please feel free to contact me.
Regards
Ben Hanley
Operations Manager
DP World Australia, Brisbane Terminal”
At the Show Cause Meeting, the Applicant was advised that the Respondent considered him to have engaged in serious misconduct and was considering terminating his employment. In response, the Applicant, confirmed that he was aware of his obligations under the AOD policy, but maintained that the presence of THC in his system, had not impaired his performance at work.
The Respondent determined to terminate the Applicant’s employment for serious misconduct, with immediate effect. A letter was provided to the Applicant advising of the termination, dated 24 August 2021. The letter set out as follows:
“RE: Termination of Employment
I am writing in relation to the outcome of the ‘show cause’ meeting held with you on Friday 20th August 2021 which you attended with Aaron Johnston (in support), Greg Muscat, HR Manager and myself. The meeting was convened to discuss your breach of the company Alcohol and Other Drugs (AOD) Policy whereby you tested positive for THC – High Range, following a random drug screen on site.
Incident Details
You were randomly selected for a drug and alcohol test under the Alcohol and Other Drugs (AOD) Policy on your rostered day shift commencing 0700 hours Wednesday 11th August 2021 at approximately 1400 hours. The test was conducted by Brassets in accordance with Australian standards AS/NZS 4308 and AS/NZS 4760. After providing a non-negative result for the swab test, you were then required to complete a urine test in line with the AOD Policy, which also showed as non-negative result.
As per the AOD Policy, you were stood down on pay pending the outcome from the laboratory test and offered 2 cab charges, which you refused, to travel home safely until such time as the laboratory results were confirmed. Subsequently, your results were confirmed as being positive for 11-nor-d-9-THC-9-carboxylic acid (THC) with a level of 562ug/L. This reading is High Range under the DP World [AOD] Policy, whereby a high range is a reading of >60ug/L.
Due to the serious nature of the breach and in line with Clause 8.9, Part A of the DP World Brisbane Enterprise Agreement 2020 (the Agreement), you were subsequently contacted by the HR Manager and stood down without pay. On 17th August 2021, the Company then issued you correspondence inviting you to attend a meeting to respond to the results and to ‘show cause’ why your employment with DP World should not be terminated. Your positive test result for THC constitutes serious and wilful misconduct and is a breach of the following:
· AOD Policy – It is the employee’s responsibility to be fit for work including being free from drugs and alcohol.
· DP World’s Critical Safety Commitment – I will present to work in a fit state to perform my duties and will be free from drugs and alcohol at work in line with the AOD Policy.
· Contract of employment dated 3 May 2016 - you are expected to comply with DP World policies and must not attend or perform work with the presence of drugs or alcohol in your system which may impact your capacity to work safely or competently: and
· DP World Australia Employee Handbook – it is the personal responsibility of our people to ensure they are fully fit for work and do not test positive to drugs or alcohol at work.
At our meeting you were provided with a copy of the results and were asked to provide any additional information that you believed to be relevant prior to DP World making a decision regarding your ongoing employment. During the meeting you provided the following explanations of your conduct as well as a prepared statement: -
1.You confirmed that you were aware of the AOD Policy and that it had been mailed to your home as recently as July 2020. You acknowledged that you had breached the policy but did not think it would cause any safety issues at work for you or others.
2.You claimed you were not impaired and/or under the influence of drugs at the time.
3.You stated that you had only been smoking “Marijuana” during the previous 2 weeks due to stress and anxiety caused by a history of medical depression, and you confirmed you had also taken Marijuana the day before.
4.You were surprised by the results as you only had a “small joint” the previous night.
5.You had never tested positive for drugs or alcohol in your career with the company.
6.You have not taken any more drugs since that incident and had taken steps to get help and counselling.
7.You provided a 100% commitment that this will never happen again if given a chance.
8.You are the main “bread winner” at home for your family and have three daughters.
9.You are happy for the Company to put you on any random testing regime and/or tested prior to you coming on site each time before each shift as required; and
10.You were happy to attend any rehabilitation courses as stipulated by the Company albeit to date you are not enrolled in any training.
Given the serious nature of this matter and the potential outcomes, the Company adjourned the meeting to give due consideration to your responses and all relevant information and the statement you provided.
Outcome
During an adjournment in the meeting, the Company considered your responses, a written statement you provided, your employment history as well as all relevant information available prior to making a decision.
It was clear to the Company, that you understood the policy and the requirements to attend work in a safe manner, in particular your role as a representative of the Employee Representative Committee which involves assisting your co-workers in similar situations.
It is the view of the Company that based on the test result, you attended for work having recently used an illicit substance in clear contravention of our Alcohol and Other Drugs Policy. Noting the significantly escalated THC levels on the test, there was no reasonable basis upon which to conclude as you claim, that you posed “no risk” to yourself or others and you were not impaired. Whilst you stated that you were suffering from medical depression, you chose not to ask for support (despite understanding the policy), rather you came to work and tested positive for high range THC.
We are satisfied that the test was conducted in accordance with Australian Standards and the issue regarding the incorrect DOB does not impact the validity of the sample or the chain of custody. The sample was compliant to Australian Standards AS4308:2008.
We formed a view therefore that this breach of the AOD Policy was serious and wilful misconduct and fundamentally inconsistent with your ongoing employment with DP World Brisbane. Accordingly, this letter is written confirmation of our decision to terminate your employment with DP World with immediate effect from Friday 20th August 2021 as communicated to you during the meeting of the same date. Under the terms of your employment and in line with Clause 8.9, Part A of the Agreement, you will not be provided with pay in lieu of notice.
The Company will process any remaining entitlements in your termination payment which will be paid as soon as possible into your nominated bank account. A separation certificate will be forwarded to you once available. I remind you that all DP World property must be returned to the Company.
…
Yours sincerely
Ben Hanley
Operations Manager – DP World Australia
Brisbane Terminal”
RELEVANT LEGISLATION
Pursuant to s.394 of the Act:
“394 Application for unfair dismissal remedy
(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.
Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.
Note 2: For application fees, see section 395.
Note 3: Part 6 1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.
(2) The application must be made:
(a) within 21 days after the dismissal took effect; or
(b) within such further period as the FWC allows under subsection (3).
(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:
(a) the reason for the delay; and
(b) whether the person first became aware of the dismissal after it had taken effect; and
(c) any action taken by the person to dispute the dismissal; and
(d) prejudice to the employer (including prejudice caused by the delay); and
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.”
Further, ss.385, 386 and 387 of the Act relevantly provides as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated as the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of a person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
“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.”
As to any remedy to be ordered, s.390 of the Act provides:
“390 When the FWC may order remedy for unfair dismissal
(1) Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).
(2) The FWC may make the order only if the person has made an application under section 394.
(3) The FWC must not order the payment of compensation to the person unless:
(a) the FWC is satisfied that reinstatement of the person is inappropriate; and
(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.
Note: Division 5 deals with procedural matters such as applications for remedies.”
Furthermore, s.392 of the Act provides:
“392 Remedy—compensation
Compensation
(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.
Criteria for deciding amounts
(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:
(a) the effect of the order on the viability of the employer’s enterprise; and
(b) the length of the person’s service with the employer; and
(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and
(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and
(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and
(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and
(g) any other matter that the FWC considers relevant.
Misconduct reduces amount
(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.
Shock, distress etc. disregarded
(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.
Compensation cap
(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:
(a) the amount worked out under subsection (6); and
(b) half the amount of the high income threshold immediately before the dismissal.
(6) The amount is the total of the following amounts:
(a) the total amount of remuneration:
(i) received by the person; or
(ii) to which the person was entitled;
(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and
(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”
Regulation 1.07 of the Fair Work Regulations 2009 provides the definition for serious misconduct, stating:
“Meaning of serious misconduct
(1) For the definition of serious misconduct in section 12 of the Act, serious misconduct has its ordinary meaning.
(2) For subregulation (1), conduct that is serious misconduct includes both of the following:
(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
(b) conduct that causes serious and imminent risk to:(i) the health or safety of a person; or
(ii) the reputation, viability or profitability of the employer's business.
(3) For subregulation (1), conduct that is serious misconduct includes each of the following:
(a) the employee, in the course of the employee's employment, engaging in:
(i) theft; or
(ii) fraud; or
(iii) assault; or
(iv) sexual harassment;
(b) the employee being intoxicated at work;
(c) the employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.
(4) Subregulation (3) does not apply if the employee is able to show that, in the circumstances, the conduct engaged in by the employee was not conduct that made employment in the period of notice unreasonable.”
SUMMARY OF THE APPLICANT’S SUBMISSIONS AND EVIDENCE
The Applicant’s position was that the Respondent did not have a valid reason for his dismissal. Further, the Applicant submitted that the Respondent denied him procedural fairness by failing to genuinely consider his responses to the allegations or the 25 years of “exemplary” service he had provided to the Respondent. Additionally, the Applicant contended that the dismissal was harsh because termination was disproportionate to the gravity of the alleged misconduct, and also because of the personal and economic strain that the dismissal has had on him. The Applicant considered the only proper remedy was re-employment, with orders for continuity of employment and restoration of lost pay.
The Applicant provided a witness statement in support of his application. The statement sets out in detail, the relevant background for the Applicant, to this matter.
The Applicant is 43 years old and commenced working with the Respondent in August 1996. The Applicant was first employed by the Respondent as an Australia Vocational Trainee. After he obtained his Certificate 4 qualification the Applicant commenced as a stevedore, initially as a casual employee, then permanent part-time for 12 months and eventually full-time. The Applicant explained that the majority of work he performed was that of a Grade 4 Clerical Employee under clause 2.10(b) of the Brisbane Part B section of the Agreement. The main duty of a ‘Toggle’ or ‘Controller’ is to monitor the computer system used at the terminal which directs automated cranes to containers, where they then load and unload the containers on to trucks or organise them in the container yard. The Applicant stated that the role is office based and clerical, however an understanding of how the Terminal functions is required.
The Applicant would either be allocated as Controller to “Road” or to “Ship” where he was either responsible for patrolling trucks coming in and out, loading and unloading containers, or overseeing and co-ordinating the straddle carriers to unload the vessels and stack the containers in the container yard. The Applicant explained that on occasion if the computer system malfunctioned, it was his responsibility to override the system and complete the task manually, meaning he would override a crane to complete the unloading of a truck or repositioning the container inside the module or waterside zone.
The Applicant stated since around 2001 or 2002 he has been elected to represent his colleagues in the Employee Representative Committee (ERC) at the Respondent. The Applicant stated he was elected by the ERC to participate in Part A negotiations for the 2016 and 2020 enterprise agreements. Being a representative also involved attending as a support person in disciplinary meetings and advocating for members. The Applicant stated that he was also elected to be a member of the Health and Safety Committee (HSC) from 2002 until approximately 2015.
The Applicant said that on the morning of Wednesday 11 August 2020 he felt “completely like [himself]” and drove to work as he normally does. At approximately 2:00pm that day he was randomly selected for a drug test.
The Applicant said that he was surprised to return a non-negative result to the swab test. The Applicant was unaware that tetrahydrocannabinol (THC) remained detectable in saliva for that long after consumption. The Applicant was then required to undergo a urine test. After returning a positive result to the urine test, he was sent home on pay, pending an investigation. The Applicant stated that he drove home, feeling as though he was not impaired at all.
The Applicant received a show cause letter on 17 August 2021, as referred to. On 20 August 2021 he attended a show cause meeting with Mr Aaron Johnston, MUA Queensland Branch Assistant Secretary as his support person. Mr Greg Muscat, Human Resources Manager of the Respondent and Mr Ben Hanley, Operations Manager also attended. The Applicant provided a copy of the Show Cause response letter. The letter detailed the Applicant’s battle with his mental health during the COVID-19 pandemic and his “massive error of judgement” by accepting some marijuana from a friend, under the impression that it may help him relax and sleep. The letter stated that the Applicant, had booked ongoing sessions with his GP and counsellors and had “expanded the conversation into dealing with this new development. Further to these points, the Applicant recalled at the meeting, saying words to the effect of:
“I have worked at your company for 25 years. My mental health has taken a turn for the worse. The lockdown and family stress has really put my mental health into decline. For two years in a row our family holiday has been cancelled due to a last-minute lockdown of the state and I have been feeling extremely low. Being unable to go anywhere and do anything this time, I felt low and wanted an escape. My friend offered me some marijuana and to help with my anxiety and sleep. I regret ever using it. I was shocked that I failed the test. I have been to some counselling to look into the reasons behind my use and intend to keep the counselling up. The last smoke I had was the last of the amount of marijuana I had purchased, and it was my intention to never smoke it again. I am the main income provider for my family and my job is important to me.”
The Applicant’s letter in response to the Show Cause letter also stated as follows:
“With this incident I was shocked that I returned a positive swab. I was fit for work on the morning of the 11th August and was not impaired in any way. I did not believe that I would fail a test due to the time frames I had adhered to. Unfortunately, I was wrong. I admit I had a small joint at around 6pm the previous evening some 13 hours prior to my next start time. The high urine sample is a result of the preceding 3 weeks where I had been off and struggling with being home alone all day. It is in not an indicator of impairment nor my current usage which I have altogether ceased. I take workplace safety seriously and I maintain I have never been drug or alcohol affected whilst at
work.
Over my long 25 year career at Fisherman’s Island I have a good record of employment, I have never failed a test before and am not on any current warnings. I have a thorough
understanding of the operations at DP World with particular expertise in the clerical area and control section. As the main bread winner in my family it would be economically devastating to my family in the midst of this pandemic and thus it is crucial to me and my family that I retain my job.I am willing to comply with and participate in an Employee Support Plan including
mandatory attendance at EAP counselling supplementing my own counselling, additional testing regimes and any other steps the business considers necessary including Alcohol and other Drug education programs. I can provide a 100% commitment that this will not occur again.”
The Applicant recalled that Mr Johnston and Mr Muscat were debating the purpose of the Respondent’s AOD Policy. The Applicant submitted that following a brief recess, the was advised that his employment had been terminated. The Applicant recalled that Mr Johnston stated to Mr Muscat and Mr Hanley words to the effect of:
“It is unjust that after twenty-five years of service to your company that no other options have been considered for Craig. He has put his hand up for counselling, regular testing, treatment, whatever it would take to reassure you but you have decided to terminate his anyway.”
According to the Applicant Mr Hanley replied with words to the effect of:
“It has been deemed wilful misconduct, there are no other options.”
The Applicant was sent a letter on 24 August 2021 confirming that his employment had been terminated.
The Applicant said that he felt “devastated” and panicked about how he was going to provide for his family. The Applicant’s evidence is that he began drafting his resume and looking for employment elsewhere that weekend, but found it difficult as he had worked with the Respondent for 25 years, with no other experience.
The Applicant explained that he has suffered from mental health issues since witnessing a traumatic event during his childhood. The Applicant stated that about 12 years ago he was clinically diagnosed with an anxiety disorder and depression. He recalled a “major panic attack” that he suffered which resulted in a hospital admission and a week off work. When he returned to work, he informed Mr Muscat verbally of what had happened during his absence. The Applicant said that a few weeks later, after being prescribed medication for his anxiety, he verbally disclosed this to Mr Muscat, as well as the event that triggered his anxiety during his childhood. The Applicant said that recent health issues with his wife had left him feeling stressed and anxious. The Applicant recalled that Mr Muscat had thanked him for sharing the information.
The Applicant explained that while he was initially on a high dose of anti-anxiety and anti-depressant medication, as his mental health improved his dose was reduced. During the most recent enterprise bargaining negotiations, the Applicant stated that he suffered an increase in anxiety, due to the high expectations of members and the stressful nature of the meetings.
The Applicant stated that prior to the incident that led to his termination, the last time he smoked marijuana was when he was “about nineteen or twenty”. According to the Applicant his most recent use of marijuana, surrounds the mental health deterioration he has been experiencing. The Applicant set out that in addition to not being able to go on his annual family holiday for the second year in a row to visit his wife’s family in North Queensland due to COVID-19 lockdowns, he was also unable to see his elderly parents in NSW and was worried about their health. The Applicant purchased some marijuana directly from a friend. The Applicant stated that smoking marijuana relieved stress and allowed him to sleep. The Applicant continued to use marijuana for the next week and a half of his leave, but decided when his supply ran out, he would stop.
The Applicant stated that he has never been trained in the AOD policy or talked through the policy by anyone at DP World but acknowledged that bulletins are sent to employees about updated work policies including the AOD policy. According to the Applicant, the Respondent has never used the term “zero tolerance”. The Applicant stated that phrases like “two strikes” were used in reference to the AOD policy in addition to a focus on “rehabilitation” in the policy. The Applicant said that he had been randomly drug tested between fifteen and twenty times.
The Applicant stated that he began work at Buccini Transport (Buccini) on a month after the dismissal, where he was employed as a reach stacker operator, loading and unloading containers. For 2 weeks prior to this, the Applicant worked as a casual welder. The Applicant noted that during the application process at Buccini, he was required to undertake a urine drug test, which he passed.
In the role at Buccini, the Applicant stated that he worked approximately 40 hours a week, from 4pm until midnight. The Applicant’s wife works full time to supplement their household income. The Applicant’s annual salary at DP World was approximately $110,000 and he is currently earning approximately $69,000 in his new role at Buccini.
The Applicant stated he is the main income earner and provider for his family and has been using the entitlement payout he received from the Respondent to pay bills and household expenses, otherwise he would not be able to keep up with payments.
In addition to his termination, the Applicant explained that he has been navigating some difficult personal family circumstances. In particular, the Applicant has three teenage daughters who have been going through their own mental health battles and he has also been supporting his wife of 17 years. Additionally, COVID-19 restrictions have negatively impacted his family, including not being able to see his elderly parents located in NSW for 2 years. The Applicant’s view is that gaining further employment in the maritime industry with another employer would be extremely difficult due to COVID and his lack of experience in other workplaces.
s.387(a) valid reason
The Respondent terminated the Applicant’s employment for breaching the Respondent’s AOD policy. The Applicant submitted that the Respondent’s AOD policy is lawful, however it is not reasonable. As it was submitted that the Respondent did not make it clear that a breach of the policy would likely result in termination of employment.
Reasonableness of the policy
The Applicant argued that the Respondent’s AOD policy is a 15-page, complex document that is confusing, filled with contradictions, and unclear about what conduct an employee can engage in during personal time without breaching its terms.
The AOD policy fails to inform employees what conduct will result in a high-level result
The Applicant stated that, by way of comparison, most people understand that they could drink heavily on a random weeknight night and still test negative for alcohol the following morning. That is because the body metabolises alcohol quickly. On this basis, the Applicant argued that when a DP World employee goes to bed after drinking several beers, they could feel confident that, if randomly selected to take a drug and alcohol test the following morning, they would test negative for alcohol.
The Applicant argued that the same insight is not obtainable in relation to recreational and medicinal users of marijuana. That is because, unlike alcohol testing, urine tests are basically useless for measuring impairment, and having cannabis in your system does not equate to being impaired by it. In this regard, a ‘peer-reviewed’ article set out:
“Cannabis has a long half-life in humans (67 days). In chronic cannabis users, it is particularly difficult to determine whether a positive result for cannabis represents a new episode of drug use or continued excretion of residual drug. Algorithmic models have been devised to determine whether THC levels represent new use or the carry-over from previous use. However, these models are not very accurate in discriminating new use and carry-over in chronic users.”[1]
The Applicant submitted that the cut-off levels contained in Appendix B of the Respondent’s AOD policy, are meaningless to anyone who has not been educated as to their meaning and relevance. Table 2 sets cut-off levels for THC at 15 ug/l, and table 3 sets 60 ug/ml as a “high range detection level”. However, the AOD policy does not explain how (other than not consuming THC) a DP World employee can avoid testing at a high level. Therefore, an employee has no way of determining in advance whether smoking a single joint the night before work will result in a high-level test result, or whether smoking regularly three weeks previous during a holiday in Canada where marijuana use is legal would result in a high-level test result.
The effect of the AOD policy is that someone who hadn’t smoked cannabis for over a week could test in the high range detection level, while someone who smoked a joint before work on the day they provided a urine sample might test below the high range detection level. Thus, the Applicant submitted that under the AOD policy, a person who is not impaired could lose his job, while a person who is impaired might not.
A policy that fails to inform employees what conduct they must avoid to ensure that they do not breach its terms, is inherently unreasonable. If the Respondent was committed to a 100% drug free workplace, it could enact a zero-tolerance policy, in which employees would be terminated if they tested positive for banned substances, that are detected at any level, as a result of testing. While such a policy would be severe, if the Applicant understood that he would lose his job if he tested positive for THC, at least he would have been afforded an informed choice, whether to smoke cannabis during his free time.
The AOD policy is unreasonable because testing for THC does not further the policy’s purpose
The AOD policy stresses throughout that the company’s cardinal commitment is that employees “present to work in a fit state to perform [their] duties”. The policy emphasised that:
“All Employees must ensure that they are ‘fit for work’ – that is, they are in a fit and healthy state which enables them to competently perform their duties without compromising the health and safety of themselves and others.”[2]
The Applicant submitted that, as noted above, a positive test for THC – even at high range detection levels – is of no use in determining whether an employee is fit to perform the duties of their job. A positive test informs the Respondent of nothing more than that an employee ingested THC within the last 30 days, or so. In the absence of any evidence that an employee is, in fact, impaired, the test provides the Respondent with nothing more than an arbitrary and capricious basis upon which it can terminate an employee’s career.
The Applicant contended that the Respondent will no doubt rely on the case of Sydney Trains v Gary Hilder[3] (Sydney Trains) as support for the position that Craig Hancock’s positive test result, provided the company with a valid reason to terminate his employment. The Applicant’s position is that the case of Sydney Trains, that the Applicant’s positive test did not provide the Respondent with a valid reason to terminate his employment, given a ‘zero tolerance’ to drugs and alcohol had not been conveyed.
In Sydney Trains the employer implemented what the Full Bench described as a “zero tolerance” approach to breaches of the employer’s drug and alcohol testing AOD policy.[4] That is, if employees tested positive above proscribed levels, the AOD policy expressly provided that they would be subject to summary dismissal. The Applicant argued that the Full Bench, in holding that the employer’s zero tolerance drug and alcohol AOD policy provided the employer with a valid reason to terminate the employee, reasoned as follows:
“Not every established breach of a requirement of workplace AOD policy will constitute a valid reason for dismissal. If the AOD policy requirement pertains to a matter which is trivial in nature or inessential to the fundamental requirements of the employee’s employment, an established breach of the AOD policy on a single occasion is unlikely to constitute a valid reason for dismissal. But that is plainly not the situation here. Sydney Trains’ operations are safety-critical. The AOD policy here is designed to ensure that employees do not perform safety-critical functions with drugs or alcohol in their system. Mr Hilder’s duties required him to perform safety-related functions. Compliance with the AOD policy was therefore a fundamental element of his employment.”[5]
The Applicant in this matter, also performed, as in the Sydney Trains case, safety-critical functions in his employment, with a proscribed level of THC in his system. The Applicant in this matter argued that he did not perform safety-critical functions in his position as a Controller for the company. The Applicant in this matter stated that he was a clerical worker, who worked in an office and monitored an automated computer program.
The Applicant argued that, like the employer in Sydney Trains, the employer in the current matter did not clearly communicate to its employees, that a breach of the AOD policy would likely result in the termination of their employment. The Applicant argued that the company did not hold meetings with employees to discuss the purpose of the policy, its terms, or what consequences would result in the event of a breach. The Applicant did concede that the employer did provide a bulletin to employees notifying them of updates to the policy, and posted the policy to a bulletin board for employees to read.
The AOD policy notified employees of the following:
“DP World has discretion to take the appropriate disciplinary action for breaches of this policy which may include termination of employment. Breaches of this policy may be considered serious misconduct which may result in instant dismissal in particular where there is a ‘high range’ level detected or where this is a second breach.” (emphasis added by Applicant)
The Applicant accepted that the AOD policy gave the company discretion to discipline and provided that a breach of the policy may be considered serious misconduct and may result in instant dismissal. The Applicant endeavoured to argue that the policy provided mixed messaging to employees by emphasising the company’s commitment to rehabilitation, providing:
“Rehabilitation guidelines
DP World recognises alcohol or other drug dependency as a treatable condition. Any person who suspects that they have an alcohol and other drug dependency condition is encouraged to seek advice and to obtain appropriate medical treatment. Employee’s also have a responsibility to report concerns about another work colleague’s ability to safely perform their duties. The use of any of the rehabilitation services contained in this AOD policy and any self-identification will remain strictly confidential.
. . .
Self-identification
Where an Employee comes forward of their own volition and asks for assistance with alcohol and / or other drug dependency issues prior to a test being conducted, DP World will support them. In these circumstances an Employee Support Plan will be developed and implemented to assist the Employee’s recovery and there will be no disciplinary action. Where an Employee tests positive (whether at the initial screening or confirmatory test), it will be at DP World’s discretion whether rehabilitation support is offered to the Employee. In these circumstances, disciplinary action may still be taken.”
The Applicant’s argument that the policy was confusing, given the reference to rehabilitation guidelines. The policy was clear and straightforward.
A valid reason must be defensible or justifiable on an objective analysis of the employee’s conduct, and objectively considered. The Applicant consumed cannabis for the period of his leave, including the night before prior to returning to his duties. His reading was in the high range, and in direct conflict with his obligations under the policy.[6]
Summary of the witness evidence of the Applicant
The Applicant provided a witness statement in support of his application. In his statement, the Applicant confirmed that he graduated from High School in 1995, and during his final year of high school, he accepted a stevedore vocational training position with the Respondent (then named P & O Ports Brisbane), which was due to commence when he finished his high school education.
The Applicant stated that he commenced working at DP World Brisbane Ltd (DP World) on 19 August 1996. Prior to his dismissal on 20 August 2021, he had been employed by DP World for 25 years. DP World is an intermodal container stevedoring terminal at Port Brisbane in the state of Queensland (the Terminal). Conditions of employment at the Terminal are covered by DP World Brisbane Enterprise Agreement 2020 (Agreement).
The Applicant stated that when he was first employed at DP World, he was employed as an Australia Vocational Trainee and worked towards gaining his Certificate 4 qualification. After he obtained that qualification, he was employed on a casual basis as a general duties stevedore for approximately 18 months, before being appointed to a Permanent Part Time (PPT) position with a guarantee of 35 hours a week. The Applicant stated that he worked as a PPT stevedore for 12 months before being appointed to a full-time position.
Prior to his dismissal, the Applicant stated that he was employed under the Grade 4 category of employment, under the Agreement. DP World operates as a 24-hour a day terminal. There are three shifts of 8 hours each day. DP World refers to these shifts as Day, Evening and Night shifts. The shifts are timetabled as follows:
a. Day 7.00am – 3.00pm
b. Evening 3.00pm – 11.00pm
c. Night 11.00pm – 7.00am
The Applicant stated that his roster at DP World consisted of:
a. One week of day shifts;
b. One week of afternoon shifts;
c. One week of night shifts; and
d. One week off.
The Applicant further confirmed that he was elected as an employee representative for MUA members of DP World in about 2000 or 2001. During his employment at DP World, the Applicant stated that the majority of the work he performed, was that of a Grade 4 Clerical Employee, under clause 2.10(b) of the Brisbane Part B section of the Agreement. The role of a Clerical worker at DP World is also known as a ‘Toggle’ or ‘Controller’ under the Agreement. The main duty of a Controller at DP World is to monitor the computer system used at the Terminal called ‘SPARCS’. The computer system directs automated cranes to the containers, where they then load and unload the containers on to trucks or organise them in the container yard. The role is office based and clerical, meaning it is an administrative role, however, people in this role are required to have knowledge of how the Terminal functions to ensure the containers are moved as efficiently as possible.
The Applicant stated that he was on a rotational roster where he would be on allocation as Controller one day to ‘Road’ and one day to ‘Ship’. On the day that the Applicant is allocated to Road, he is responsible for patrolling the trucks coming in and out of the terminal, loading and unloading containers, ensuring the operation runs as efficiently as possible. On the day the Applicant is allocated to Ship, he stated that he would oversee and co-ordinate the straddle carriers to unload the vessels and stack the containers in the container yard. He emphasised in his evidence that his role was to ensure the operation ran smoothly and efficiently.
The Applicant stated that on occasion, the computer system may malfunction. When this did occur, it was the Applicant’s responsibility to override the system and complete the task manually. This meant he would override a crane to manually complete the unloading of a truck or repositioning the container inside the module or waterside zone. This would happen approximately twenty times in a shift.
Employee representative
Since around 2001 or 2002 the Applicant stated that he was elected by his work colleagues to represent them in the Employee Representative Committee (ERC) at DP World. The ERC is comprised of two representatives from each employee category at DP World. There are Foreman, Clerical, Casual, General Operations, and Workshop representatives that make up the ERC. Every four years, one person from each category would be elected out of the ERC to participate in Part A negotiations. The Applicant stated that he was elected by the ERC to participate in Part A negotiations twice, for the barraging of the 2016 and 2020 enterprise agreements.
The Applicant’s evidence was that being an employee representative involves participating in enterprise agreement bargaining meetings, attending as a support person in disciplinary meetings, advocating for members on a daily basis and advising workers on their workplace rights, if they had questions about the Agreement. The Applicant stated that he took his role as employee representative very seriously.
In addition to being on the ERC, the Applicant stated that he was elected to be a member of the Health and Safety Committee (HSR Committee). He was in the HSR Committee from 2002 until approximately 2015. The HSR Committee focused on safety in the workplace, injury prevention, conducting risk assessments and the overall safety procedures of the Terminal.
Due to the clerical nature of his role, the Applicant stated that he worked in the office area and shared this space with the DP World managers. He stated that he would share a workspace with now retired DP World Terminal Manager, Glen Wayne, DP World Manager, Mark Hume and DP World Manager, Scott Eadie.
Drug Test and Following Events
The Applicant gave evidence that on the morning of Wednesday 11 August 2021 he felt completely fine and drove to work as he normally does. At approximately 2.00pm, Shift Manager Mr Peter informed the Applicant that he had been randomly selected for a drug test.
The Applicant stated that he was surprised to return a non-negative result to the swab test. He was unaware that tetrahydrocannabinol (THC) remained detectable in saliva for that long after consumption. The Applicant found out about his non-negative reading immediately, and as a result, he was required to undergo a urine test. After returning a positive result to the urine test, the Applicant was sent home on pay pending an investigation. The Applicant stated that he drove his car home from work that afternoon, feeling completely normal and not at all impaired.
On 17 August 2021 the Applicant received a letter from DP World dated 17 August 2021 (Show Cause Letter). On 20 August 2021 the Applicant attended a Show Cause Meeting at the DP World Terminal at 11.00am. He attended this meeting with Mr Aaron Johnston, MUA Queensland Branch Assistant Secretary as his support person. Mr Greg Muscat, Human Resources Manager and Mr Ben Hanley, Operations Manager attended on behalf of DP World. The Applicant stated that at the start of the meeting, he gave Mr Hanley a copy of his response to the Show Cause Letter.
The Applicant stated that in the meeting, he recalled saying words to the effect of:
“I have worked at your company for 25 years. My mental health has taken a turn for the worse. The lockdown and family stress has really put my mental health into decline. For two years in a row our family holiday has been cancelled due to a last-minute lockdown of the state and I have been feeling extremely low. Being unable to go anywhere and do anything this time, I felt low and wanted an escape. My friend offered me some marijuana and to help with my anxiety and sleep. I regret ever using it. I was shocked that I failed the test. I have been to some counselling to look into the reasons behind my use and intend to keep the counselling up. The last smoke I had was the last of the amount of marijuana I had purchased, and it was my intention to never smoke it again. I am the main income provider for my family and my job is important to me.”
The Applicant stated that Aaron Johnson and Greg Muscat then had a conversation about the AOD policy at DP World. The Applicant stated that he recalled Mr Johnston and Mr Muscat were debating the purpose of the policy and how the company is able to measure impairment. Approximately forty minutes into the meeting, the group took a recess for approximately twenty minutes.
The Applicant stated that he and Mr Johnston were invited to resume the meeting where Mr Hanley informed the Applicant that DP World had made the decision to terminate his employment and asked him to collect all of his belongings from his work locker. The Applicant recalled Mr Johnston telling Mr Muscat and Mr Hanley words to the effect of:
‘It is unjust that after twenty-five years of service to your company that no other options have been considered for Craig. He has put his hand up for counselling, regular testing, treatment, whatever it would take to reassure you but you have decided to terminate him anyway.’
The Applicant recalled Mr Hanley replying to this with words to the effect of:
‘It has been deemed wilful misconduct, there are no other options. Craig you will need to clear out your locker, hand over your MSIC card and take your belongings.’
The Applicant stated that he was devastated to hear this news and began to panic about how he was going to provide for his family. That weekend the Applicant stated that he began to draft his resume and look for employment elsewhere. The Applicant stated that he found this task very difficult as he had worked at the same place for twenty-five years and had no experience outside of DP World.
Mental health
The Applicant stated that he has struggled with his mental healthy for a number of years. He stated that on 20 June 1991 there was a shooting at his secondary school, Orara High School. The Applicant was at school that day attending the yearly athletics carnival. In the afternoon a boy in his year arrived at school and sat on a hill overlooking the oval, where he began shooting people on the playing grounds. Some people were injured, and one person died as a result of the shooting. The Applicant stated that he is still haunted by that day, and he has vivid memories of running for cover and being scared for his life. During this time in life, the Applicant stated that he was also developing generalised anxiety, often vomiting before school sports and being worried about going to school. He stated that the school shooting heightened his anxiety and that period of his life saw the start of his mental health problems.
The Applicant stated that about twelve years ago, he was clinically diagnosed with an anxiety disorder and depression, after experiencing increased anxiety that became unmanageable. On one occasion he thought he was having a heart attack and called ambulance. The Applicant stated that he was admitted to hospital with chest pains and shortness of breath to later find out that he had experienced a major panic attack due to stress at work and personal issues.
The Applicant stated that when he had experienced the panic attack, he had a whole week off work to recover. When he returned to work, he informed Mr Muscat verbally at his office of what had happened to explain my absence.
The Applicant stated that a few weeks later, after he had been prescribed medication for his anxiety, he verbally disclosed this information to Mr Muscat. During this conversation he stated that he also informed Mr Muscat about what had triggered his anxiety from his childhood, namely the shooting at his school, and the recent health issues his wife was experiencing, which he stated left him to feel stressed and anxious. Whilst Mr Muscat did not say anything other than ‘thank you for telling me’, the Applicant felt it was important to disclose this and be honest with him. As someone who has suffered from mental illness for years, the Applicant stated that he made an effort to be open about his battle with anxiety as he was aware that there can be a stigma around mental health, especially amongst men.
The Applicant further stated that since he has been medicated for the last twelve or so years, his anxiety and depression has been more stable and manageable. For the first few years of being medicated, the Applicant was on a high dose of anti-anxiety and anti-depressant. However, as his mental health improved, his dose was reduced.
The Applicant stated that during the most recent enterprise bargaining negotiations, he suffered an increase in his anxiety due to the high expectations of members and the stressful nature of the meetings.
Alcohol and drugs policy
The Applicant stated that DP World has provided bulletins to employees about updated work policies including the Alcohol and Other Drugs Policy (AOD Policy). Whilst the policy has been posted in bulletin boards, the Applicant stated that he has never been trained in the policy or talked through the policy by anyone at DP World.
Mr Hancock stated that DP World has never used the term “zero tolerance”. It was a workplace understanding that the company was for rehabilitation due to phrases like “two strikes” being used in the workplace, in reference to the AOD policy, as well as the inclusion of the focus on “rehabilitation” in the policy.
The Applicant stated that he has been randomly drug tested between fifteen and twenty times during his employment at DP World and he has passed all of these tests.
Substance use
Prior to the incident that led to his termination at DP World, the Applicant stated that the last time he smoked marijuana, he was about nineteen or twenty years old. When he was this age, the Applicant stated that he thought it would help him sleep as he was suffering sleep paralysis. The Applicant stated that he stopped smoking marijuana when he was twenty years old.
The Applicant’s evidence was that the background to his most recent use of marijuana surrounds the mental health deterioration he had been experiencing. The Applicant had booked one week of annual leave from 26 July to 1 August 2021. He was then on a rostered week off from 2 August to 8 August 2021. The Applicant returned to work on 9 August 2021. At the end of July and early August he was supposed to be going on a family holiday to north Queensland to see his wife’s family.
Due to COVID-19, the Applicant stated that he and his family were locked down and he was feeling extremely low. Two years in a row they had been locked down due to the pandemic when they were due to go on our annual family holiday. The Applicant had been unable to see his elderly parents in NSW and he stated that he was concerned about their health and when he would next see them.
The Applicant stated that a friend offered to sell him some marijuana and he purchased it directly off him. The Applicant stated that he felt more relaxed after smoking it and it allowed him to sleep. He had been struggling with unrefreshing sleep and an anxious mind right before bed. The Applicant stated that he had been feeling incredibly stressed and the smoking seemed to relieve that stress. He stated that he used marijuana for the next week and a half but towards the end of the second week he decided when his supply ran out, he would stop using. The Applicant stated that his wife was aware of his use and advised him that she was not happy and did not want him to continue.
Effect of termination
The Applicant stated that he started work at a company called Buccini Transport (Buccini) on 30 September 2021, where he is currently employed as a reach stacker operator, loading and unloading containers. For two weeks before this, he worked as a causal welder until he was offered the job at Buccini. During the application process for his role at Buccini, the Applicant was required to take a urine drug test, which he passed. The Applicant stated that he was upfront with his current employer about his department from DP World.
In this role, the Applicant stated that he works approximately 40 hours a week, from 4pm until midnight. The Applicant said that his wife works full time at a distribution centre to supplement their household income. The Applicant’s annual salary at DP World was approximately $110,000.00. He stated that he is now currently earning approximately $69,000.00 in his role at Buccini Transport.
The Applicant stated that he is the main income earner and provider for his family. He stated that he has been using the entitlement payout he received from DP World to pay bills and household expenses, otherwise he would not be able to keep up with the payments.
The Applicant further stated that his personal life has been very stressful. In addition to his dismissal, he has been navigating some difficult family circumstances. The Applicant has three teenage daughters who have been going through their own mental health battles and he has been trying to support his wife of seventeen years throughout the process. Further, the Applicant stated that COVID-19 restrictions have negatively impacted his family. The Applicant has elderly parents who live in NSW, who he hasn’t seen in over two years. He gave evidence that the symptoms of his anxiety and depression have increased in the last year in particular, due to the stress of the pandemic.
The Applicant stated that gaining further employment in the maritime industry with another employer would be extremely difficult due to COVID and his lack of experience at other workplaces.
Summary of the witness evidence of Aaron Johnston
Mr Aaron Johnston provided a witness statement in support of the Applicant in the proceedings. Mr Johnston was a member of The Maritime Union of Australia Division (MUA) of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). Mr Johnston was appointed as a Relieving Assistant Branch Secretary for the Divisional Queensland Branch of the MUA. Prior to being appointed as an official of the MUA, Mr Johnston worked as a stevedore for DP World Brisbane Ltd (DP World), where he had been employed for 17 years. Mr Johnston had been a workplace delegate at DP World since 2008.
Mr Johnston stated that in his role as union official, he is responsible for representing and advancing the industrial interests of MUA members employed in the maritime industry. This includes representing members of the MUA employed by DP World. DP World is container terminal located at Port Brisbane, Queensland (the Terminal). Members employed by DP World at the Terminal are covered by DP World Brisbane Enterprise Agreement 2020 (Agreement).
Mr Johnston stated that he has over 13 years’ experience in representing employee interests at DP World. This has included attending disciplinary meetings as a support person, participating in national enterprise bargaining for workplace agreements and raising member grievances with senior management.
The Applicant
Mr Johnston stated that he has known the Applicant for approximately 10 years and have worked with him at DP World before Mr Johnston left the workplace to become an MUA official. Mr Johnston stated that he was appointed as a backup clerk in approximately 2012 working directly alongside the Applicant on a regular basis. Mr Johnston stated that he regards the Applicant as being one of the most knowledgeable and experienced employees in his specific area at the Terminal. Mr Johnston stated that he has worked alongside the Applicant in the clerical section where he has always been professional in his approach and ensured the complex computer systems and day to day operational functions of the terminal were maintained to the highest level.
This role is encompassed under the Agreement as ‘Ship Clerk’ and ‘Clerical/Toggle’. The position involves driving the remotely operated cranes, communicating with truck drivers, coordinating and directing the yard machines movements, liaising with quay crane foremen and straddle drivers to ensure productivity is maintained, and actively identifying and problem-solving potential issues. The Clerks work closely with the production team member and supervisor on shift. The employees share an office space, which is adjacent to the offices of DP World Managers.
Mr Johnston stated that the Applicant had been a workplace delegate for over twenty years. Workplace delegates are elected by the workforce on each shift. A number of employees regularly fulfil this role due to their knowledge and the training that they receive from the Union. To become a member of the Employee Representative Committee (ERC), individuals nominate themselves and an election is held to appoint these positions. Mr Johnston stated that the Applicant has been an elected member on the committee for many years, due to the respect he commands in the workplace, because of his vast knowledge and experience. He has negotiated a number of EBA’s and regularly advocated for fellow employees. In doing so, he has frequently had to advocate against the same managers who he shares an office floor with.
Show cause and termination
Mr Johnston stated that on 11 August 2021 he was sent an SMS from the Applicant that read, ‘Hi mate just letting you know I failed drug test of THC’. The Applicant and Mr Johnston then had a conversation about his mental health and how he was coping with the news.
On 17 August 2021 the Applicant called Mr Johnston to inform he had been sent a Show Cause Letter. Mr Johnston stated that he asked the Applicant to send him the Show Cause Letter. Mr Johnston stated that he and the Applicant had several conversations prior to meeting with the Company. The purpose of those conversations was to check in on his welfare because Mr Johnston was concerned about his mental health. At that stage Mr Johnston had growing concerns for his wellbeing and wanted to ensure he was getting professional help and support in such a difficult and stressful time. Mr Johnston stated that they spoke about seeking help from his doctor and going to counselling, which he did. They talked about his time off in the previous three weeks prior to returning to work where his mental state had deteriorated, and he had unfortunately spiralled down into smoking marijuana regularly which resulted in a high reading.
Mr Johnston stated that during one of those conversations, he recalled that the Applicant told him that he was very cautious upon returning to work to ensure he was not impaired, and not at risk of failing a test. He believed he left adequate time between smoking and attending work and made sure that he had plenty of sleep and was well rested before returning to work. Further, they discussed the massive impact all of this was having on his wife and family because there were already significant pressures and stresses occurring at home.
On 20 August 2021 Mr Johnston attended the Show Cause Meeting at the Terminal. In attendance at the meeting was the Applicant, Mr Johnston, Mr Ben Hanley, DP World Operations Manager, and Mr Greg Muscat, DP World Human Resources Manager. Immediately after the meeting Mr Johnston stated that he made extensive notes of what occurred. His recollection of what occurred at the meeting is a result of his independent memories, along with a review of his notes. At that meeting, the Applicant presented a letter in response to the Show Cause Letter. During the meeting, Mr Hanley informed the Applicant of his drug and alcohol test result. Mr Hanley and the Applicant had a conversation to the following effect:
Mr Hanley:A reading of 564 is considered high under our Drug and Alcohol Policy. This is serious and you now have an opportunity to respond.
[handed Mr Hanley a letter]
The Applicant: To go right back to the start, I have had anxiety for over 30 years. It started when there was a shooting at my high school and a good friend of mine died. I started to get such bad anxiety I would vomit. It wasn’t until about 10 years ago that I started to get help. I was prescribed with anxiety medication and got professional counselling. I have been on high levels of medication ever since. As my letter explains, I am having mental health issues at the moment. The lockdown and some family matters have seen a decline in my mental health. I regrettably took some marijuana from a friend whilst I was on annual leave as he said it would help with my anxiety and to sleep. I wish I never had smoked it and I have since stopped. I have just had an appointment with my counsellor and we are talking about the reasons behind why I made that poor decision. I was not under the influence, but I accept the test shows traces were in my system. I was shocked to find out I had failed the test. I had smoked over 20 hours before. I regret ever smoking. I value my job and am the main bread winner in my family.
Mr Johnston stated that he recalled having a conversation with Mr Muscat to the following effect:
Mr Johnston: We maintain the position that smoking pot in one’s personal life is not serious misconduct in any way. The purpose of the drug and alcohol policy is to ensure that employees aren’t under the influence of illicit substances while at work and can competently perform their duties without compromising the health and safety of themselves and others.
Mr Muscat:He failed the test, we can’t have people at work impaired. What if was outside lashing? He could put people at risk. Luckily, he was upstairs and less risk in the clerical section.
Mr Johnston: Yes so you’re saying on this day if he was impaired he posed less risk, however we maintain he was not impaired at all. Other than the single test what other independent evidence is there that Craig was impaired whilst at work. Craig engaged with supervisors and managers throughout the day. He was competently performing his duties and his work was not called into question once that day indicating he was not impaired. Would you agree?
Mr Muscat:Yes - no one questioned his work that day or suspected he was under the influence of drugs.
Mr Johnston: The urine sample is merely an indicator of historical use and there is substantial literature that supports the fact that it in no way is an indicator of impairment.
Mr Muscat: We could not know for sure we are not doctors. We don’t know whether it indicates impairment or not, but we do know he breached DP World policy and that it was a high reading.
Mr Johnston: So at most, the urine test merely suggests that he had smoked pot in is time off which he a has admitted to and since ceased doing. To severely discipline Craig for smoking pot during his personal time without further substantial or independent evidence that he was impaired whilst at work is not justified. There is no case to terminate the employment of someone when they have no concrete evidence other than a single swab test that is relied upon to state they were impaired while performing their job. There are other options available in the policy. Craig is a 25-year employee, maintains a good work history with a large amount of knowledge in the clerical section, his work has never been called into question. He has received tremendous support from other employees, the production team and also some supervisors. He has outlined his mental health issues. He has accepted responsibility for his actions, realised the error of his ways and committed to ongoing help and counselling, he is able to demonstrate that the relationship of trust and confidence and his ability to continue his employment without ever failing another test. Understands the seriousness of the situation. As per the letter Craig will comply with all requirements imposed upon him, counselling, ongoing drug testing and attending a Drug and Alcohol awareness course.
Mr Johnston stated that the two men then took a break of approximately 20-30 minutes. When they returned to the meeting, a conversation took place to the following effect:
Mr Hanley:We have considered what you have said, and the letter provided. The policy is clear, the test complies with Australian standards and the Company has made it clear that employees have to self-declare. You are a senior member of the ERC you should be aware of the policy requirements. We deem this serious and wilful misconduct and cease your employment immediately. No notice period applies but we will pay you all your entitlements, clear out your locker and take your personal belongings.
Mr Johnston: It is absolute that the company always terminates someone with what you call a high range reading? The policy says if the result of the test is high range in accordance with the approved levels contained at Appendix B, then the employee may be subject to termination of their employment with the Company.
Mr Muscat: No, we consider it case by case.
Mr Johnston: Given this, under what circumstances if someone tested over the high range detection level would they not be terminated. Is there any? What if he self-declared?
Mr Muscat: Maybe, we can’t be sure.
Mr Johnston: What could Craig do to save his job?
Mr Muscat: He could have called us when he was on leave.
Mr Johnston: So, you are unable to provide us anything that could change the outcome?
Mr Hanley: We have to focus on safety and enforce the policy. We deem this breach serious and wilful. Therefore, we have decided on termination.
Mr Johnston: I believe this was predetermined and you have not taken into account what has been said. It is unjust to consider any other options considering his length of service. Craig has passed many other random drug tests in the past and his work has never been questioned. There are other options that have not been considered and the policy states ‘may be terminated’, but you have not seemingly considered them. Have gone for the most extreme outcome due to who Craig is in the workplace as a delegate.
Mr Hanley: We have considered other options but still consider this as serious and wilful misconduct, so we have no other option. you’ll need clear out all your belongings.
Mr Johnston stated that the Applicant was understandably quite distressed and confused given his previous record, and to be terminated without any other considerations seemed very harsh. He told Mr Johnston that he was extremely worried about the future, the impact on his family, and how he would provide for them. He told Mr Johnston that after the meeting he was disappointed as he knew of other employees at DP World who breached the Alcohol and Other Drugs (AOD) policy who were put on random and regular drug tests or were suspended without pay whilst they sought treatment.
DP World Alcohol and Other Drugs Policy
Mr Johnston stated that the Respondent’s policy had been subject to considerable contention over the years. In the Applicant’s case, there has been no liberty or alternative option provided to him, despite there being other less harsh options under the policy that the Company could have taken. Those options included placing the Applicant on unpaid suspension so he could seek help to ensure that he returned to work drug free, supporting a rehabilitation plan, testing him on a regular basis for 12 months to ensure that he was free of drugs, or a combination of those alternatives.
Mr Johnston stated that as a workplace delegate at DP World and now as a union official, he is aware of a number of instances where an employee has breached the policy and has not been terminated. In the last few years there have been instances where employees who had fewer years of service than the Applicant breached the policy and were not terminated. Whilst in those circumstances, the drugs involved and readings may have been different, I am aware that they were all afforded the option of a suspension without pay in order to seek treatment and rehabilitation or placed on a regime of targeted testing.
In particular, Mr Johnston stated that two of the employees involved who failed for THC were both placed on a regime of targeted testing. Mr Johnston stated that he believed that, given the Applicant’s length of service, his admission of having a problem, and commitment to rehabilitation, there was an option other than termination that could (and should) have been afforded to him.
Mr Johnston stated that in his experience as workplace delegate and union official, he was aware that the company has discretion to offer rehabilitation support to employees under the AOD policy. The policy states:
‘DP World recognises alcohol or other drug dependency as a treatable condition. Any person who suspects that they have an alcohol and other drug dependency condition is encouraged to seek advice and to obtain appropriate medical treatment.’
Whilst the Applicant did not self-declare, he did retrospectively realise the dependency he had developed in a short period of time. This is not an easy thing to confront, but he was committed to the treatment and counselling that he had commenced – all of which the company completely dismissed in deciding to terminate his employment. That decision, it was submitted, is not aligned with its policy of viewing drug dependency as a treatable condition and encouraging individuals to seek help.
Additionally, Mr Johnston stated that the policy clearly states that termination ‘may’ result due to breaches, where the readings are deemed high. However, in this instance Mr Muscat and Mr Hanley were unable to explain to Mr Johnston what could have mitigated or changed the outcome for the Applicant, apart from possibly taking self-declaration into account. However, as soon as the Applicant had realised what a bad place he was in, he was open to DP World and declared that his mental health struggles led to his marijuana use. It would seem reasonable that what the Applicant disclosed there were mitigating circumstances that should have been seriously taken into consideration.
Impact of termination on the Applicant
Mr Johnston stated that the Applicant has undergone, and continues to undergo, counselling to ensure he does not regress and return to the poor mental state he was in.
The Applicant was open and up front with the Company about his mental health. As outlined in the letter that the Applicant wrote in response to the Show Cause Letter, it was known amongst the clerical workers with whom he spent the majority of his time at work, and some other operational employees that the Applicant had battled and continued to battle mental health issues, for which he had to seek professional help and receive treatment. The Applicant however had not reported such to management.
The Clerical division of workers at DP World is a small group of employees who spend the entire shift sharing the same office space with operational supervisors and the production team. Due to this, a relationship was often formed where employees would conduct conversations about their personal lives. During those discussions the Applicant disclosed his issues with mental illness and his troubles at home.
“The sample for donor Craig Hancock was collected in accordance with the Australian Standards –
- do you see that?‑‑‑Yes.
And then the next sentence:
The chain of custody and tamper‑evident seals were intact, ensuring the validity of the sample.
See that?‑‑‑Yes.
And you mentioned that you were familiar with Ms Deborah Brass?‑‑‑Yes, I know Deborah Brass.
And what's Deborah's - Ms Brass' capacity?‑‑‑I think it's the operations - I'm not too clear on her actual title, I think she might be operations or something like that, within the group.
All right. And then there's the last paragraph of that document, Dr Robertson:
The interpretation of the handwritten date of birth on the vacutainers does not impact the validity of the sample. The sample was compliant to the Australian Standards.
You see that?‑‑‑Yes.
All right. No further questions of the witness.”[63]
The Applicant’s submission in relation to the integrity of the test result focused on the collection process and chain of custody. However, during the hearing, Dr Williams explained, there was a discrepancy in the date of birth recorded on the specimen tubes (where the recording of a digit was smudged) that necessitated the binary COC field being marked “no”.[64] Dr Williams went on to confirm that she herself had seen photos of the tubes with the seals intact, with the photos that clearly illustrate the year of birth recorded on those tubes was poorly recorded.[65]
Dr Williams went on to clarify her position in relation to the validity of the test results:
“So, in light of what you’ve just told us, do you have any concerns about the integrity of the sample that is the basis of the test results annexed to your witness statement? --- No.”[66]
During cross-examination Dr Williams made it clear that the only reason for the procedural annotations on the laboratory analysis was that the test tubes (which the Applicant himself had signed) had been marked with an incorrect date of birth:
“It also says on a different line – bear with me: “Please note, sample tubes have the date of birth as 20/12/1979
Right? --- Yes.
So are you saying that that line is the reason that it wasn’t – that the sample wasn’t tested in accordance with Australian New Zealand Standards? --- Yes.
Because of the date of birth? --- Yes.
But that’s not what it says does it? --- But that’s what happens.
…
So, if you know that there is a – that the date of birth is one way that it didn’t comply, that doesn’t exclude any other way that it didn’t comply with the Australian Standards does it? --- Then it would be written on the report. If there was multiple ways that it wouldn’t comply, that would be documented on the report the same as it says, sample tubes have the date.”[67]
During cross examination, Dr Williams gave direct evidence that she had established, from her own enquiries, that despite the annotation on the report, the chain of custody and integrity of the sample had in fact been maintained.[68] Little weight can be attributed to the Applicant’s submission to diminish the integrity of the sample, having regard to the evidence of Dr Williams. On the evidence, the integrity of the actual sample was clearly not threatened.
The evidence in relation to the sample did not demonstrate a breach of the standards that affected the sample, in that it could not be relied on. The Applicant’s date of birth on the sample did not render the sample unusable. The evidence was steadfast as to the explanation of the notation on the sample and it did not disturb the reliability of the sample, with a cannabis reading in his system.
Out of hours conduct
The Applicant has maintained an argument that he was disciplined because of his “out of hours conduct”. The Respondent maintained that the Applicant was dismissed not for what he did in his personal time, but because of his breach of the DOA policy, in his presenting to the Respondent’s terminal to work and tested positive at a high range.
The Applicant’s submission that the dismissal in such circumstances for “out of hours” conduct, in some way being exempt is not compelling in the present matter, given the proximity of the consumption of the drugs in relationship to the Applicant’s presenting for work, and the resultant test result. The Applicant had used the substance daily over the course of his break, in the knowledge that he could have sought assistance from the company for the drug use, which he did not. He was aware of the Policy and the bulletin emphasising a zero tolerance position.
The breach of the Policy, in the context of all of the circumstances, provided a valid reason for the dismissal.
(b) whether the person was notified of that reason
The Applicant was notified of the reasons under consideration in the show cause and for the dismissal in in the termination letter issued on 24 August 2021. The termination letter is set out in full at the beginning of this decision. The Applicant conceded that he was fully notified of the reasons for his dismissal, both during the in person meeting on 24 August, and through the termination letter This factor is therefore considered neutral.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
The Applicant was provided with a show cause letter on 17 August 2021. This correspondence invited the Applicant to a show cause meeting on 20 August 2021. At the Show Cause Meeting, the Applicant was advised that the Respondent considered him to have engaged in serious misconduct and was considering terminating his employment. The Applicant was provided an opportunity to address the allegations at this meeting, and provided a response.
The Respondent noted that the Applicant properly conceded that he was notified of the reasons for his dismissal. That concession is an appropriate one in light of the following:
a.the Invitation to the Show Cause Meeting put the Applicant on notice that the Respondent was considering terminating his employment because of his non-negative test result; and
b.at the Show Cause Meeting, the Respondent again advised the Applicant that it was considering terminating his employment because of his nonnegative test result.
The Applicant had argued that he was not afforded an opportunity to respond, alleging that the outcome of the process was "pre-determined", and that the Show Cause Meeting was a "sham process". The Respondent argued that the Applicant's submission was, at best, inferential. The mere fact the Applicant's response to the Show Cause Letter did not result in an outcome other than dismissal does not mean the Applicant was deprived of an opportunity to respond. The insinuation that the process was a "sham" is a serious one, and in that regard the observations of the High Court in Briginshaw are relevant.[69] The Applicant was given a clear opportunity to respond, contrary to the circumstances in Chioma Okoye v SACARE Supported Accommodation and Care Services T/A SA CARE.[70] The Respondent submitted that the direct evidence from the decision maker demonstrated that the Respondent gave genuine consideration to the matters raised in mitigation by the Applicant.
In terms of the existence of a valid reason for dismissal in the present matter, the Applicant’s responses were taken into account, he admitted that he was aware of the Respondent’s Drug and Alcohol policy, and the requirements of the policy. Further, the Applicant admitted that he was familiar with the various additional materials reminding him of the Respondent’s requirement that he not attend for work with illicit drugs in his system. Despite this awareness of the policy, the Applicant conceded that he consumed an unknown quantity of cannabis the night before his shift, and proceeded to present for work the following day. The Applicant confirmed that he was aware that the conduct could result in termination. The circumstances as set out support a finding of a procedurally fair process, and does not support a finding that the termination was harsh, unjust or unreasonable.
Section 387(b)-(c)—procedural fairness
In the current matter the Applicant was provided with an opportunity to respond with the Unions support and representation and the case presented in hearing is similar to the matters raised for consideration in the show cause process. This matter does not weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.
(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
The Applicant was represented by the MUA throughout the process and conceded that he was allowed a support person from the MUA at all times. The Applicant conceded that there was no unreasonable refusal to allow him a support person in any meeting relating to his dismissal. This element in considering whether the dismissal was harsh, unjust and unreasonable is considered neutral.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
The Applicant was not dismissed for reasons pertaining to unsatisfactory performance. His length of service and record of performance as well as his service on the Health and Safety Committee have been taken into account. This factor is considered to be neutral in assessing whether the dismissal was harsh, unjust and unreasonable.
(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
The Respondent is a large employer, with over 3700 staff, including a dedicated human resources and access to legal advice.
The Respondent provided a procedurally fair process, commensurate with its size and resources. This matter is considered to be neutral in assessing the fairness of the termination.
(h) any other matters that the FWC considers relevant
The Respondent submitted that for the reasons explained above, the Applicant's decision to attend for work with cannabis in his system was plainly serious misconduct. The observations of the Full Bench in Parmalat are then relevant:
“… [h]aving found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”
The Respondent, having complied with the statutory requirements for procedural fairness, it is then, consistent with Full Bench authority, only if significant mitigating factors are present, that a conclusion of harshness is reasonably open.
Applicant’s length of service; remorse and apology
The Applicant emphasised that he was a dedicated employee with 25 years of service with the Respondent. The Applicant submitted that he was respected by his colleagues, elected to the HSC and ERC. The Applicant apologised for his conduct and accepted responsibility for it. The Applicant submitted that given the context in which it occurred and his insight into it, it is conduct that he submitted will not re-occur.
In relation to the Applicant's length of service, the Respondent acknowledged the Applicant was a long standing employee; however, they as the Full Bench observed in Harbour City Ferries, whilst an employee's length of service may be a factor attracting a degree of sympathy, it is also a factor that demands a high level of compliance with policy;[71] and ultimately, a significant period of service cannot be a "licence" for significant breaches of policy that amount to serious misconduct, and particularly when that indiscretion has potential consequences for the safety of others. The Commission has recognised that an employee's length of service is not determinative in overturning dismissal matters.
Comparative differentiation and the Applicant’s personal circumstances
The Union argued comparative differentiation of treatment of the Applicant against other employees. This was not made out. The circumstances of each of the other employees referred to were markedly different to those of the Applicant, such that a like for like comparison could not be made out. Further, the evidence of Mr Hanley plainly set out, that since he took over as General Manager and since the Respondent issued the May 2021 bulletin referring to the Respondent’s ‘zero tolerance’ for employee’s attending work with drugs in their system, no employee had been given a ‘second chance’ following a positive drug test. The following exchange from the hearing deals with this matter:
“Now, the company also issued bulletins about the drug and alcohol policy from time to time, didn't they?‑‑‑Yes, this appendix C was found everywhere. The flow chart was behind on the safety - behind the glass petition there was - so it was there, like, all the time.
So, bulletins were posted on a notice board?‑‑‑Possibly. Probably, but I didn't - but, I certainly recall seeing appendix C regularly.
In the break room?‑‑‑In the break room, in the office. It was in the office from time to time, yes, appendix C for sure.
If I can ask you to turn to page 171 of the court book, Mr Hancock?‑‑‑Yes.
This is one of the bulletins that was put up, the bulletin about peppermint flavouring in oral swab tests?‑‑‑Yes.
You remember this one?‑‑‑Yes, I do.
Yes, okay. And, you see where it says 'zero tolerance' n the very bottom paragraph, Mr Hancock?‑‑‑Yes.
'As a reminder to all employees DPWB', being DP World Brisbane, operates a zero tolerance to any employee being under the influence of drug and alcohol in our facilities'. Do you see where it says that?‑‑‑I do. I don't recall reading it, but, yes.
And so in your statement, Mr Hancock ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑when you say DP World has never used the term 'zero tolerance', that's not correct, is it?‑‑‑Obviously if this ‑ ‑ ‑
I've just taken you to where they use it?‑‑‑ ‑ ‑ ‑bulletin was put out, for sure. That seems to be there on that one, but ‑ ‑ ‑“[72]
I am satisfied that the Applicant was not subject to any ‘differential treatment’ that rendered his dismissal harsh, unjust or unreasonable.
In relation to the Applicant's personal circumstances, the Applicant referred to mental health issues that led him to self-medicate with an illicit substance, in a manner which caused him to attend the Respondent's Terminal in a state that was in breach of the Respondent's AOD policy and potentially put the safety of himself and others at risk. The Applicant gave evidence that he had purchased a quantity of cannabis over two weeks prior to his attending work on 11 August. His evidence was that he had smoked a quantity of cannabis each night during that period prior to presenting for work on the 11th.[73]
It is not for the employer or colleagues to randomly check whether an employee is showing signs of impairment. No reliable evidence of the Applicant’s concerns or reporting to the employer about his mental health was provided. He, unlike other employees (in accordance with the employer’s drug and alcohol policy) did not volunteer that he was experiencing personal difficulties or initiate rehabilitation assistance under the policy, as other employees had. The misconduct and resultant hardship of the dismissal has been given due consideration.
Proportionality of the Employer’s response to dismiss the Applicant
The Respondent had argued that the current matter was distinguishable from Sydney Trains on the basis that the Applicant’s breach of the AOD policy in the current matter was trivial in nature, and unessential to the fundamental requirements of his employment. I do not accept this argument. The Applicant in the current matter had conceded that he was aware of the 5 May 2021 bulletin that set out the Respondent’s ‘zero tolerance’ approach to employee’s presenting for work under the influence of drugs or alcohol. Further, as set out earlier, the Applicant’s role was found to be safety critical in nature, and his attending to work with drugs in his system, having recorded a high range reading, was a significant breach of the policy. I am satisfied in the current matter that the Applicant’s compliance with the AOD policy was essential to the fundamental requirements of his employment. The Employer’s decision to terminate the Applicant’s employment in response to this breach is not considered harsh for the purposes of s.387(h).
Reinstatement
The Respondent submitted that there was a valid reason for dismissal and that reinstatement was inappropriate. The Respondent argued that neither of the decisions of Metcash nor Sydney Trains provided any support for a conclusion that reinstatement is the appropriate remedy. In this regard, the Full Bench in Sydney Trains pointed out the Full Bench did not need to consider remedy in circumstances where none of the grounds of appeal related to the orders for reinstatement.[74] Having regard to the decision, it cannot be said that the Full Bench endorsed reinstatement as the appropriate remedy; and further, in Metcash (separate to the current situation) a supervisor at the employee’s former site gave evidence that he was comfortable having the employee return.[75] More importantly, there is no suggestion the employee the beneficiary of the reinstatement order had continued to deny the safety critical nature of his role or the potential consequences that at least could have resulted from the conduct that he engaged in. This is a stark contrast with the repeatedly stated position of the Applicant in the present proceeding.
CONCLUSION
The Applicant in this matter was aware of the Respondent’s drug and alcohol policy, and the requirements of the policy, namely, the Respondent’s clear requirement that he not attend for work with illicit drugs in his system. The Applicant was aware that a breach of this policy could result in the termination of his employment.
Whilst disputed between the parties, the evidence has demonstrated that the Applicant’s role was inherently safety critical in nature. The requisite trust and confidence cannot be restored in the employment relationship.
Despite his awareness of the drug and alcohol policy, after consuming an unknown quantity of cannabis the night before his shift, the Applicant proceeded to present for work the following day and tested positive at a high level. The Applicant’s actions in this regard have been weighed with all of the other relevant factors and do not support a finding that the dismissal was harsh, unjust and unreasonable. On that basis the application pursuant to s.394 is dismissed.
I Order accordingly.
COMMISSIONER
[1] Sharma, P., Murthy, P., & Bharath, M. M. (2012). Chemistry, metabolism, and toxicology of cannabis: clinical
implications. Iranian journal of psychiatry, 7(4), 149–156 (citations omitted).
[2] Respondent’s AOD policy, point 2.
[3] [2020] FWCFB 1373 (Sydney Trains)
[4] Ibid at [8].
[5] Ibid at [35]
[6] Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835 at [73].
[7] [2015] FWCFB 1033.
[8] Ibid at [24].
[9] Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310 at [26].
[10] Ibid at [18].
[11] Roger Iannella v Engie Fire Services Australia Pty Ltd T/A Engie Services [2016] FWC 8389 at [42]; citing Kolodiashnii v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893.
[13] [2013] FWCFB 6191; (2013) 238 IR 1.
[14] Ibid [36].
[15] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [24].
[16] Ibid [26]-[27].
[17] Ibid [24].
[18] See Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249, [27].
[19] Ibid.
[20] Sharp at [2015] FWCFB 1033 at [33]-[34].
[21] OP World Sydney Limited v Lambley[2012] FWAFB 4810; (2012) 222 IR 277 at [26].
[22] Selak v Woolworths Ltd [2008] AIRCFB 81; (2008) 171 IR 267 at [35].
[23] Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685.
[24] Dalton v CBH Limited (PR919761) at [18].
[25] Nicholas Ward v Great Southern Rail Pty Ltd TIA Great Southern Rail[2019] FWC 5064 at [195].
[26] Paragraph [400] to [420] of the transcript.
[27] Paragraph [724] to [740] of the transcript.
[28] PN1102.
[29] PN465.
[30] PN467-473.
[31] PN1478.
[32] PN473-476.
[33] PN472 to PN478.
[34] PN1470-1471.
[35] PN1474 – 1476.
[36] PN690.
[37] Witness statement of Ben Hanley at [8].
[38] PN512.
[39] PN516.
[40] PN521.
[41] PN529-530.
[42] PN532.
[43] PN867-869.
[44] PN504-506.
[45] PN490.
[46] PN493.
[47] PN1476.
[48] Rodney Roach v Pacific National Services Pty Ltd [2022] FWC 103.
[49] Ibid at [55] to [57].
[50] PN587.
[51] PN578-579.
[52] CB214.
[53] PN593-594.
[54] PN645.
[55] Paragraphs [806] to [810] of the transcript.
[56] PN686.
[57] [2015] FWCFB 1033.
[58] Ibid at [12].
[59] Ibid at [28].
[60] Ibid at [24].
[61] CB234.
[62] PN179.
[63] Paragraphs [229] to [248] of the transcript.
[64] PN1100.
[65] PN1203-1204.
[66] PN1101.
[67] PN1160-1168.
[68] PN1147.
[69] Briginshaw v Briginshaw (1938) 60 CLR 336' [1938] HCA 34.
[70] [2020] FWC 704 (Okoye)
[71] Harbour City Ferries at (25].
[72] PN619 to PN629 of the transcript.
[73] PN725 of the transcript.
[74] Sydney Trains at [12] and [42].
[75] Hudson v Metcash Trading Limited (2021) FWC 2765 at [83].
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