Mr John Mulder v BHP Billiton Worsley Alumina Pty Ltd
[2010] FWA 3150
•20 APRIL 2010
[2010] FWA 3150 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Mulder
v
BHP Billiton Worsley Alumina Pty Ltd
(U2009/14760)
DEPUTY PRESIDENT MCCARTHY | PERTH, 20 APRIL 2010 |
Termination of employment – positive drug tests.
Background
[1] This matter concerns an Application for unfair dismissal remedy (“the Application”) lodged by Mr John Mulder (“the Applicant”) regarding the termination of his employment by BHP Billiton Worsley Alumina Pty Ltd (“the Respondent”). The Applicant had been employed for over nine years by the Respondent and at the time of his termination was employed as a Maintenance Service person at the Respondent’s alumina refinery.
[2] The Application states that the Applicant’s employment was terminated because of a “third positive AOD (alcohol and other drug) test in five months.” A letter of termination was attached to the Application which stated that a discussion was held with the Applicant regarding his third positive drug test in five months, that his conduct was in breach of his obligations to the Respondent and that his employment was terminated immediately.
[3] The Application also outlined in some detail the reasons why the Applicant considered the termination of his employment to be unfair. These reasons stated that the Applicant admitted to a drug test in August 2009 where he tested positive to THC 1 and to another test on 4 December 2009, where he tested positive to THC. A third test conducted on 5 December 2009 was positive for amphetamines.
[4] The Respondent lodged an Employer’s Response to Application for Unfair Dismissal Remedy (“the Employer’s Response”). The Employer’s Response stated that the employment was terminated for a conduct which breached his obligations to the Respondent.
[5] The Employer’s Response outlined the Respondent’s AOD policy, which provides that if an employee returns three “positive” drug test results within the space of three years before, then that employee is subject to discussions of a disciplinary nature, which include the likelihood of termination of employment.
[6] The Respondent says that the Applicant returned the following positive test results:
1. On 15 August 2009, the Applicant was AOD tested. That test was positive for THC (“the first positive”);
2. On 4 December 2009, the Applicant was AOD tested. That test was positive for THC (“the second positive”); and
3. On 5December 2009, the Applicant was AOD tested. That test was positive for amphetamines (“the third positive”).
[7] The Employer’s Response then outlines details of meetings held on 9 and 10 December 2009 where it says the Applicant was given an opportunity to provide an explanation for his “second positive” and “third positive” tests. The Applicant was also informed of the possibility that his employment may be terminated.
Consideration
[8] Many of the facts in this matter are not contested. Significantly it is not contested that the Applicant tested positive to THC on two occasions and positive to amphetamines on one occasion.
[9] What Fair Work Australia (“FWA”) must consider is whether the termination which occurred as a consequence of those positive tests was harsh, unjust or unreasonable. In making a determination FWA must take into account the matters prescribed in s.387 of the Fair Work Act 2009 (“the FW Act”).
[10] In assessing whether there was a valid reason for termination because of an employees conduct, it is necessary to examine whether the conduct occurred. 2 The conduct giving rise to the termination here, viz the positive test returns, is not disputed as having occurred. Even if it had not been conceded by the Applicant that he returned a third positive test, it is patently clear that he did. I find from this that the conduct that gave rise to the termination did occur. I make it clear that this finding is not a finding that the Applicant knowingly took amphetamines. Nor at this juncture does it mean that I have found that the conduct constituted a valid reason for termination of the Applicant’s employment.
[11] What the Applicant argues is that the third test was positive, as a result of an unwittingly consumption of a drink that contained the offending substance, and was through no fault of his own. The Applicant states that he unknowingly consumed a glass of orange juice into which his wife had crushed her medication, which happened to be an amphetamine. He argues that as a consequence the positive test could not be a valid reason for his termination.
[12] The Respondent argues that it assessed the explanation given by the Applicant and did not accept it. They took the Applicant’s explanation into account, that of the Applicant’s wife, and the domestic living circumstances of the Applicant. In making the conclusion they were influenced by what they believed were conflicts and inconsistencies between the Applicant’s account and the account the Applicant’s wife gave.
[13] The Respondent argues further that the test that should be applied in these circumstances is whether the employer had reasonable grounds to form the view that they did.
[14] I find that the Respondent did have reasonable grounds to disbelieve the Applicant’s version of how he came to have a positive test result on the third occasion. Furthermore, I do not accept the Applicant’s version and explanation. Neither the Applicant’s nor his wife’s evidence influenced me that the presence of amphetamines arose in the manner they suggested.
[15] The argument by both parties also raises the issue of proportionality. That is, was the conduct sufficiently serious that there existed a valid reason for termination? In examining the proportionality of the matter it is appropriate to consider the Respondent’s AOD policy and its application in this instance. The policy was described by the Respondent as a ‘three strikes policy’ in that unless there is a third positive test within a timeframe of three years then an employees employment is not terminated. The inference here is that because an employee is given three chances then there is more likely to be a valid reason for termination than if there had been only one or two positive tests.
[16] The Applicant’s behaviour and conduct following the first positive test result is also relevant in considering proportionality. It appears to me that following the first positive test the Applicant wanted to argue about the work related safety risks for a user of cannabis rather than accepting the AOD policy and its application by the Respondent. Whilst the Applicant endeavoured to portray his approach to these issues as simply wanting to be educated, it appeared to me that he was in effect challenging the validity and appropriateness of the Respondents policy. This understandably must have adversely affected the Applicant’s chances of continued employment by the Respondent.
[17] In these circumstances I do not consider the decision to terminate the Applicant’s employment was disproportionate to the conduct that occurred. I find that there was valid reason for termination of the Applicant’s employment.
[18] I also find that the Applicant was notified of the reason for termination and that he had an opportunity to respond to the allegations regarding his conduct. I note the size of and human resource expertise within the Respondent’s operations and do not make any adverse findings regarding the procedure followed relating to the termination.
[19] The matters above I also consider relevant in determining whether the termination was harsh, unjust or unreasonable. Those matters are the history of the Applicant’s AOD testing and the apparent view of the Applicant that positive THC readings did not put the health or safety of himself or any other person at unnecessary risk. The evidence of established to my satisfaction that the policy was a reasonable and appropriate one for the Respondent to adopt and apply.
[20] I find and determine that the termination was not harsh, unjust or unreasonable.
[21] The Application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr J Mulder, on his own behalf
Mr A Power, with Mr D Scanlon, for BHP Billiton Worsley Alumina Pty Ltd
Hearing details:
2010.
Perth:
April, 6.
1 11-nor-delta-9-tetrahydrocannabinol-9carboxylic acid (CO-THC)
2 see Moore J in Edwards v. Giudice and ors [169 ALR 89 at 92]
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