Mr H v The Employer
[2010] FWA 532
•4 FEBRUARY 2010
[2010] FWA 532 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
The Employer
(U2009/10723)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 4 FEBRUARY 2010 |
termination of employment - arbitration.
[1] On 24 July 2009 Mr H lodged an application pursuant to section 394 of the Fair Work Act 2009 (the Act). Through this application he sought relief with respect to the termination of his employment with The Employer.
[2] The names of the parties to this matter have been withheld as a consequence of the provisions of section 398 of the Act.
[3] Mr H's application was the subject of conciliation on 8 August 2009. The application was not resolved and was referred to me for arbitration. It was the subject of a further conference with me on 17 September 2009 at which the possibility of a settlement was considered prior to discussions over the method of arbitration. Again, the matter was not resolved and was, as a consequence, the subject of arbitration on 14 and 15 December 2009.
[4] At this hearing, Mr Hs was represented by Ms Presdee of the Rail Tram and Bus Union and The Employer by Mr Jacobs and Mr Farrant of counsel.
[5] The background to the application is summarised below.
[6] Mr H worked as a line haul train driver. He had worked for The Employer since 2002. Notwithstanding a relatively minor incident in 2006, there are no performance issues associated with Mr H's employment. Mr H was, for a time, actively involved in employee safety management issues.
[7] In May 2009 The Employer issued a safety notice confirming the importance of compliance with its established Drug and Alcohol Management Policy. There is no dispute that Mr H was generally aware of this policy as a result of his initial induction and refresher training in 2009.
[8] The Employer Drug and Alcohol Management Policy requires that employees not attend for, or undertake work, affected by drugs or alcohol. It provides for random drug and alcohol testing and for a maximum allowable alcohol level of 0.02gm of alcohol per 100 ml of blood (0.02%). The policy reflects, although it does not replicate, a legislative requirement relative to drug and alcohol obligations with respect to train driving.
[9] Mr H was rostered off work from Sunday 5 July 2009. He was rostered to work on the evening of 8 July 2009 and was advised on that afternoon, of a specific start time of 6:35pm. He arrived for work at approximately 6:35pm and was immediately subjected to a drug and alcohol test. He recorded an alcohol concentration of 0.045%. The test was then repeated with the same outcome. Mr H was then asked to remain at the work area with the testing officer for a further test consistent with the policy requirements. Some 25 minutes later, Mr H was again tested and recorded an alcohol concentration of 0.025%.
[10] He was subsequently stood down and then asked to meet with The Employer management and to respond to allegations put to him. Mr H was invited to obtain representation. He responded to The Employer about the incident in writing on 13 July 2009 and also met with senior management on that day.
[11] The final decision to terminate Mr H's employment was made by Mr T, the General Manager responsible for Mr H's work area on 13 July 2009 and was confirmed to him in writing.
[12] Mr H's position is that after being unwell with vomiting and diarrhoea the evening before and, as a consequence, not eating, at or around 12:30pm on 8 July 2009 he drank two stubbies of full strength beer with a light lunch before sleeping for some three hours. Mr H used a mouthwash just prior to leaving home for work. He contends that he was fit for duty and was not affected by alcohol. Mr H further contends that The Employer Drug and Alcohol policy was itself flawed and was not properly or consistently applied.
[13] The Employer position is that its Drug and Alcohol policy is appropriate to address its business operations and legislative obligations and that this policy was properly applied in Mr H's circumstances such that The Employer was entitled to conclude that Mr H had presented for work above the specified maximum alcohol level. Further, that Mr H was appropriately reminded of the policy and the consequences of non-compliance in May and June 2009 through a safety notice and subsequent briefing. Finally, The Employer position is that it was entitled to conclude that Mr H had not been truthful in his initial assertions in that he later indicated that he was unsure of how much beer he had consumed and the time over which this had occurred.
[14] Whilst I have only briefly summarised the evidence provided to me, I have taken all of the evidence and material before me into account in reaching a conclusion on this matter.
[15] Mr H gave evidence about the events of 8 July 2009 and the following days. His evidence extended to his actions on 8 July 2009, the alcohol testing process and his actions following the positive test and in response to The Employer investigation process.
[16] Mr P is a Driver Trainer with The Employer. His evidence went to his conduct of briefings with respect to the Drug and Alcohol policy and his conduct of the random alcohol test on Mr H on 8 July 2009.
[17] Mr C is The Employer National Operations Manager with general responsibility for Mr H's work area. His evidence went to The Employer Drug and Alcohol policy approach, the safety notice issued to employees in May 2009, and his active involvement in the events which followed the positive test recorded by Mr H on 8 July 2009 culminating in the termination of his employment.
[18] Mr T is the General Manager with overall responsibility for the area in which Mr H worked. His evidence went to The Employer’s legislative obligations relative to drug and alcohol use by employees, The Employer’s Drug and Alcohol Management Policy, and his consideration of the circumstances of Mr H’s failed test, which led to his decision to terminate Mr H's employment.
[19] Dr Odell is a Senior Forensic Physician with the Victorian Institute of Forensic Medicine. His evidence went to the effect of the consumption of the two drinks asserted by Mr H, the effect of Mr H's use of mouthwash, the absorption of alcohol by the human body and to the reliability of the breath alcohol analysis device used by The Employer to test Mr H.
Findings
[20] On the evidence before me, I have made a number of findings of fact upon which I have based my subsequent conclusions.
[21] The Employer Drug and Alcohol Management Policy is broadly based on The Employer’s employment, social and specific legislative responsibilities. These policy requirements specify expectations on employees, and the processes and procedures to be followed. I have concluded that the specific testing requirements leave room for some doubt and variable understandings associated with the extent to which independent verification of positive test results may be required or sought. Further, that this issue is not consistently made clear to employees. Further, that whilst The Employer policy makes it clear that a breach of the requirement that employees attend for work not affected by drugs or alcohol is extremely serious, and could result in dismissal, this is subject to management discretion.
[22] I have concluded that Mr H was generally aware of The Employer Drug and Alcohol Management Policy through various induction and briefing processes but that this knowledge was limited in terms of the detail of the testing process. In general terms, Mr H was aware of the absolute requirement that he not attend for work under the influence of alcohol.
[23] Mr H was aware of the May 2009 Drug and Alcohol safety notice and had been briefed on 11 June 2009 with respect to the significance of drug and alcohol issues.
[24] The breath analysis test conducted on Mr H on 8 July 2009 was performed in a manner generally consistent with The Employer policy requirements although this test necessarily reflected the inherent uncertainty about the circumstances under which an independent verification could or should be obtained. Further, I have concluded that The Employer breath analysis testing apparatus is reliable and, subject to appropriate certification, should properly be relied upon by The Employer.
[25] In the absence of any evidence to the contrary, I have accepted all of Dr Odell’s expert evidence dealing with the rate of absorption of alcohol in the body.
[26] Mr H recorded an alcohol test result of 0.025 % on his third test. This was conducted at around 7:05pm. It followed two earlier tests which showed results of 0.045%.
[27] Mr H's use of mouthwash just prior to leaving for work does not explain the third and final test outcome.
[28] Mr H's stated consumption of two stubby size bottles of beer at lunch time, over a light lunch and following vomiting and diarrhoea the previous night, does not explain the third and final test outcome.
[29] Mr H was invited to respond to The Employer allegations that he had tested positive. He was offered representation. He responded in writing and then met with Mr C to discuss the incident.
[30] Section 387 states:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”
[31] I have considered each of these criteria.
Valid Reason
[32] I have applied the concept of a valid reason set out by North J in Selvechandron v Petersen Plastics Pty Ltd 1 in the following terms:
“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must “be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly”.
[33] The letter of termination of Mr H's employment confirmed that the reasons for this termination of employment were, firstly, his positive alcohol test and, secondly, the misleading advice given by him to The Employer.
[34] I have considered the extent to which these reasons, taken singularly or collectively, constituted a valid reason for the termination of Mr H’s employment. I am satisfied that the positive test result, in the context of the June 2009 drug and alcohol briefing and Mr H’s clear understanding of the drug and alcohol work attendance requirements, represented a valid reason for the termination of his employment.
[35] I am not convinced that The Employer testing policy was so flawed in its application to Mr H that it represented an unfair application, although, in different circumstances, the flaws in the policy could create such an injustice. Had, for instance Mr H sought an independent verification of the test, and been refused such a request, this would have represented such an injustice.
[36] Simply put, the evidence before me fully supports the integrity of the testing mechanism. Mr H knew the requirements. The Employer was under an obligation to act in order to preserve its legislative and human resources policy position.
[37] The only logical reason for the third positive test result is that Mr H consumed more alcohol or consumed alcohol at a later time. Irrespective of which of these situations applied, Mr H breached the clearly specified and well understood Employer policy requirement.
[38] The Employer could have chosen to discipline Mr H without terminating his employment, but this does not make the termination of employment decision inherently unfair or mean that it lacked a valid reason.
[39] Secondly, Mr H's advice regarding the quantity of alcohol he had consumed and the time at which he had finished doing so changed over the investigation. Mr H's initial position was that he had consumed only two beers and had done so by 12:30pm on 8 July 2009. In his letter of response to The Employer of 13 July 2009, Mr H advised that he was, at that time, unsure of the quantity of alcohol he had consumed on 8 July 2009. At the hearing, Mr H advised that he asserted he was unsure of the amount and timing of his beer consumption following a suggestion from another employee that this may illicit a more lenient approach from The Employer. Mr H asserts that the statement could be taken as indicating that he had less than two stubby size bottles of beer. However, I do not consider this likely, given the allegations against him. Mr H had been broadly counselled to tell the truth in the letter of 13 July 2009 and I think that The Employer was entitled to understand at that point, that he was uncertain about the quantity of alcohol he had drunk and the time he had consumed that alcohol.
[40] Finally, in his interview with Mr C on 13 July 2009, Mr H indicated uncertainty about the time at which he had finished consuming beer on 8 July 2009.
[41] I consider that The Employer was entitled to rely on all of this information and to conclude that Mr H’s initial advice that he had consumed only two beers and had done so by 12:30pm was not likely to be correct.
[42] I am not satisfied that Mr H's behaviour immediately after the test was, or should have been taken as in any way conclusive of his agreement that he had drunk too much. Equally, I do not consider that Mr P’s behaviour subsequent to the positive test was in any way improper even though Mr P’s evidence was that this was the first positive test which he had conducted.
[43] I am not satisfied that the approach adopted by The Employer to other situations where employees have tested positive to alcohol, has been made out, such that it proves inherent inconsistency and unfairness in the application of the drug and alcohol policy.
[44] In summary terms, I am satisfied that Mr H occupied a position of substantial responsibility. He was aware of The Employer requirements with respect to the consumption of alcohol. He failed the requisite alcohol test and his subsequent advice cast doubt on the position he initially promulgated to The Employer. I am satisfied that the positive alcohol test by itself, and certainly in concert with the additional information provided by Mr H, represented a valid reason for the termination of his employment.
Notification of the reason
[45] I am satisfied that The Employer gave Mr H clear verbal advice with respect to his positive alcohol test and the possibility that this could give rise to disciplinary action including termination of employment. This position was confirmed in the erroneously dated letter of 10 July 2009 where The Employer asked Mr H to show cause as to why his employment should not be terminated.
[46] The letter of termination of Mr H’s employment of 13 July 2009 makes clear the reasons for this dismissal and I am satisfied that this advice was conveyed to Mr H on that day.
[47] I have noted that Mr H was involved in an incident in December 2006 and that, as a consequence of this incident, he had an altercation with Mr C. I do not consider that this issue was in any way relevant or taken into account in the termination of his employment.
Opportunity to respond
[48] I am satisfied that Mr H was given an opportunity to respond to the possibility that his employment could be terminated as a result of the positive alcohol test. Mr H utilised that opportunity. Further, Mr H was able to discuss the difficulties he had in preparing this response with Mr C on 11 July 2009. Finally, Mr H had the opportunity to discuss the matter in the meeting with Mr C on 13 July 2009.
[49] I am satisfied that Mr T’s decision to terminate Mr H’s employment was not made until Mr T had discussed the matter with Mr C after the meeting with Mr H on 13 July 2009 and until after Mr T had considered Mr H's correspondence of that date.
Opportunity to have a support person present
[50] Mr C's correspondence to Mr H of 10 July 2009 confirmed the meeting arranged for 13 July 2009. It also confirmed that Mr H was able to have an employee representative attend this meeting with him. Accordingly, I am satisfied that Mr H was aware that he could have a support person present with him in the discussions that he clearly understood had the potential to result in the termination of his employment.
Unsatisfactory performance
[51] I do not consider this factor to be relevant to these circumstances. There is no question about Mr H's work performance and in fact it appears clear that his work history was taken into account as a mitigating factor in the deliberations that led to the termination of his employment.
Employer’s size
[52] The Employer is a very large employer and it is clear that the procedures followed in effecting the dismissal of Mr H’s employment reflect established policies and procedures.
Absence of dedicated human resource management specialists
[53] I do not consider this factor to be relevant to these circumstances given the size of the Employer operation.
Any other matters considered relevant
[54] As I have already indicated, if Mr H had contested the efficacy of the test outcome at that time, this may have given rise to concerns about the way in which The Employer drug and alcohol policy operated in practice. However, the efficacy of the testing process was not challenged and in fact Mr H's subsequent advice of his doubts about the quantity and the time within which he consumed alcohol support The Employer position.
Conclusion
[55] For the foregoing reasons I am not persuaded that the termination of Mr H’s employment was harsh, unjust or unreasonable. His application must accordingly be dismissed. An Order [PR993279] to this effect will be issued.
SENIOR DEPUTY PRESIDENT
Appearances:
K Presdee Rail Tram and Bus Union for the applicant.
T Jacobs and D Farrant counsel for the respondent.
Hearing details:
2009.
Adelaide:
December 14 and 15.
1 (1995) 62 IR 371 at 373
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