Mr Leonard James Ruddell v Camberwell Coal Pty Limited T/A Integra Open Cut Mine
[2010] FWA 8436
•12 NOVEMBER 2010
[2010] FWA 8436 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Leonard James Ruddell
v
Camberwell Coal Pty Limited T/A Integra Open Cut Mine
(U2010/963)
COMMISSIONER MACDONALD | SYDNEY, 12 NOVEMBER 2010 |
Application for unfair dismissal - serious misconduct - dismissal on ground of knowingly producing a false urine sample in a random drug test - application for unfair dismissal declined.
[1] This decision arises from an application by Mr Leonard James Ruddell (the applicant) pursuant to section 394 of the Fair Work Act (the Act) for a remedy in respect of his dismissal by Camberwell Coal Pty Limited t/as Integra Open Cut Mine (the respondent).
[2] The dismissal was for serious misconduct and the dismissal occurred on 18 June 2010.
[3] The unfair dismissal application was lodged with Fair Work Australia (FWA) on 18 June 2010.
[4] The unfair dismissal application was dealt with by an FWA Conciliator but did not settle. The Hearing took place before myself in Newcastle on 21 and 22 September 2010.
[5] The applicant was represented by Mr Alex Bukarica of the Construction, Forestry, Mining and Energy Union - Mining and Energy Division (CFMEU). Assisting at the bar table was Mr J McWilliams. Mr Bukarica called the following witnesses:
Leonard Ruddell - the applicant
Dean (aka “Dingo”) Andrews - Acting Open Cut Examiner
[6] The respondent was represented by Mr A Morris, solicitor, from Blake Dawson, Lawyers. Assisting at the bar table was Ms T Ross, solicitor. Mr Morris called the following witnesses:
Scott Sands - Director, Safety Plus Training Pty Limited
Michael Gallegos - Operations Manager (the respondent)
BACKGROUND
[7] The respondent is in the business of open cut mining, in the Hunter region, Newcastle. There are approximately 217 employees, 150 of whom are mining technicians or equivalent.
[8] Within the open cut mine area, there are six loading units and up to 26 mining trucks. Light vehicles are used to transport mining technicians to and from the loading units and ancillary equipment. Surveyors, mining supervisors, maintenance technicians and other staff also utilise light vehicles to transport people around the mine. Therefore, there is a large amount of mobile machinery operating in a small geographical area (7.3Ha).
[9] The respondent has a Drug and Alcohol Procedure (D & A Procedure) which is intended to protect personnel from unsafe conditions relating to the effects of drugs and alcohol in the workplace, being a mining industry.
[10] The applicant was a Mine Technician at the time of his dismissal, having commenced employment in 2001.
[11] On 21 May 2010, the applicant was required to undertake a random drug and alcohol test by the respondent, which engaged the services of an outside provider for that purpose. The name of that provider is Safety Plus Training Pty Limited. Its sole director and Operations Manager is Mr Scott Sands who was also the Tester on that day for drug and alcohol testing of staff. The testing procedure occurred in the first aid room. Located within the first aid room, is a toilet/cubicle.
[12] The D & A Procedure sets out the procedures for testing employees, contractors and visitors for drugs and alcohol in accordance with the Australian Standard AS4308:2008.
[13] If an employee tests positive for drugs or alcohol, the D & A Procedure encourages the employee to seek counselling and rehabilitation. It also sets out the potential disciplinary consequences for positive test results. The D & A Procedure provides that if an employee tests positive twice in a 12 months period, they will be on a Level 2 breach of the policy. If the employee records a third positive result within 12 months of the second positive test, the employee’s continued employment will be reviewed.
[14] Clause 5.3.2 of the D & A Procedure provides that a test (sample) is considered invalid if it does not reach the required temperature; does not reach the required level on the testing cup; or is found to be abnormal by the use of an adulteration test device. If a test is invalid, a second sample will be required. If an employee is found to have deliberately adulterated or falsified a sample, the employee will move straight to a Level 2 breach of the D & A Procedure and may be subject to dismissal.
[15] When the applicant presented for a urine sample for the random drug and alcohol test, he was provided with a specimen cup (an example was provided to FWA - Ex 3). The applicant proceeded to the toilet/cubicle for the giving of the urine sample. The cubicle door was left open for that purpose. The applicant returned the specimen cup (a specially made plastic container). The specimen cup contains inbuilt measuring/testing devices - such as for recording the temperature of the urine sample.
[16] The applicant provided Scott Sands (the Tester) with the urine sample/container. However, the urine sample was observed by the Tester not to have reached required temperature on the temperature indication strip located on the outside of the specimen cup. More than that, the Tester said that the specimen cup was cold to the touch.
[17] The Tester searched for a thermometer in order to record the temperature of the sample but was unable to locate a thermometer. He then wrote the word, “COLD”, he said on the lid of the specimen cup.
[18] The applicant was required to provide a second urine sample but was unable to do so at that point in time.
[19] The Tester telephoned his respondent contact on the job, Mr Tony Chalker, and advised of the applicant’s urine sample result. Whilst discussing that result and the procedure to then follow, the applicant left the first aid room. The applicant said he was given the OK to leave but this was denied by the Tester. The significance of this exit by the applicant is that one of the steps of the D & A Procedure had been breached. That is, the urine sample was no longer in sight of both parties and that, said the Union, raised the issue as to the integrity of the first urine sample and therefore the first urine sample should have been disregarded.
[20] Mr Chalker attended the first aid room with a copy of the D & A Procedure, which the Tester said advised that a second urine sample was required where the first urine sample was invalid.
[21] The applicant said he waited in the muster room until he was able to provide a second urine sample. The applicant returned to the first aid room with an employee witness, Mr Dean Andrews (who also gave evidence).
[22] The applicant provided a second urine sample and the Tester announced that one of the inbuilt measuring/testing devices had shown that the urine sample tested “non-negative”. (The term “non-negative” is applied at this point in the testing procedure. If the laboratory testing consequently also shows “non-negative”, then the term “positive” is applied to show a positive test result for one or more substances found in the urine sample.) For this second sample, as at the time of testing in the first aid room in the presence of the applicant and his witness, the Tester announced a non-negative test result for the presence of metabolites of THC (cannabis).
[23] The Tester then carried out the procedure, as per the D & A Procedure, for preparing this second (non-negative) sample for testing in a laboratory. There was no issue before FWA as to the correct procedures being carried out for this second, non-negative, test result.
[24] Having completed the procedures for the second urine sample, the Tester then turned his attention to the first urine sample specimen cup provided about one and one-half hours earlier.
[25] The Tester took a hold of the first specimen cup and turned it on its side, so that the urine sample would come into contact with the underside of the lid and in doing so, react with the various chemicals contained within the lid. There was no chemical reaction (unlike the second urine sample) and the Tester announced a negative result.
[26] Before carrying out the procedures, per the D & A Procedure, required for the first sample, the Tester cleaned up the desk area in order to put the D & A Procedure into full effect for the first urine sample. In that regard, he cleaned up certain items on the spill sheet and placed them and his spill sheet in a refuse bag temporarily attached to the desk. Having done so, he inadvertently picked up the first urine sample/specimen cup and placed it as well into the refuse bag.
[27] Having inadvertently put the first specimen cup into the refuse bag, the Tester, Scott Sands, deposed that:
“I immediately retrieved the cup from the disposal bag. When I went to retrieve the cup I saw that it was sitting on top of the plastic that I had placed into the bag following testing Mr Ruddell’s (the applicant’s) second sample. It was clearly separated from the other test cups containing urine in the bag by a spill sheet which I had placed in the bag just prior to Mr Ruddell’s second test. It also said “COLD” on the lid of the cup in black marker pen. This was the only cup on which I had written “COLD” that day. I was therefore certain that the cup I retrieved was Mr Ruddell’s first sample. The cup was in the disposal bag for no longer than 10 seconds.” 1
[28] He also deposed that he then asked the applicant and Andrews their agreement that this retrieved specimen cup was the correct cup and they both agreed. 2 The Union would contend that neither the applicant, nor Andrews, were in a position to definitely identify the sample cup as belonging to the applicant as the specimen cup had not been labelled and secured prior to it being placed in the refuse bag.
[29] The Tester finished off the required procedures for delivery of the urine samples to a toxicology laboratory for analysis.
FINAL SUMBISSIONS
For the Applicant
[30] Mr Bukarica, for the applicant, put the following in final submissions:
(a) The applicant relied upon the Applicant’s Outline of Submissions for his claim that his dismissal was unfair.
(b) The respondent claims that the first urine sample was allegedly adulterated or there was a substitution or falsification of the first sample in order to obtain a negative test result. The Union contended that the respondent was not entitled to rely upon the first urine sample as it was not tested in accordance with the respondent’s D & A Procedure . Thus, the respondent had failed to follow the Chain of Custody procedures and that is a substantive failure. That is, the first breach of the Chain of Custody procedure occurred when the applicant left the first aid room. In leaving the room, he did so before he (the donor) and the Tester had sealed the urine sample for despatch for laboratory analysis. The applicant left the room with the explicit or implicit consent of the Tester. The second breach of the Chain of Custody procedure occurred when the Tester inadvertently placed the first urine sample specimen cup into the refuse bag and out of sight of the applicant and Dean Andrews.
(c) The respondent claimed that the applicant was dishonest in his response to the drug screening declaration when he declared (and signed) that he had not consumed any illicit drugs in the previous 24 hours prior to his random drug and alcohol test. The Union rejected this claim and referred to evidence that cannabis can stay in the body’s system for a number of days. Thus, the applicant could have taken cannabis days before his test and honestly answer the screening declaration that he had not taken drugs in the previous 24 hours to the drug and alcohol test.
(d) The applicant sought reinstatement.
For the Respondent
[31] Mr Morris, for the respondent, put the following in final submissions:
(a) The respondent relied upon the Respondent’s Outline of Submissions that the applicant had not been unfairly dismissed.
(b) The applicant was summarily dismissed for misconduct which was knowingly producing a false urine sample on 21 May 2010. “False” meant a urine sample that was not his sample. This first urine sample was cold and the human body (if alive) does not produce cold urine.
(c) The Unions’ claim that the Chain of Custody was broken for the first sample was rejected. The Chain of Custody procedure applies to urine samples that are positive (technically called a non-negative) but the applicant’s urine sample did not match that description because it was neither negative or positive and therefore the Chain of Custody procedure did not apply.
(d) As to the applicant leaving the first aid room after the first urine sample, he did so without the permission of the Tester/Sands.
(e) The first urine sample that was inadvertently placed in the refuse bag by the Tester was the same one that was pulled out of the refuse bag seconds later. The applicant signed documentation to that affect and he can not walk away from that signature.
(f) The Chain of Custody procedure took place for the second urine sample and that procedure has not been called into question by the Union.
(g) The respondent took the view that the applicant dishonestly responded to a question put to him by the Tester, as to the declaring of any substances taken.
(h) The dismissal was not unfair. The applicant had provided a false urine sample. The second urine sample showed a positive result for cannabis and that meant he had been working in a mining industry environment for a period of days, whilst over the prescribed cannabis limit. Reinstatement was opposed.
CONSIDERATION
[32] Section 396 of the Act, sets out four matters which must be decided, before considering the merits of an unfair dismissal application. Those matters are:
“(a) whether the application was made within the period required in subsection 394(2);
(b) whether the person was protected from unfair dismissal;
(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;
(d) whether the dismissal was a case of genuine redundancy.”
[33] The unfair dismissal application was made on the same day the applicant was terminated and was therefore made within the fourteen day time limit specified in section 394(2). This satisfies paragraph (a) of section 396 above.
[34] Section 396(b) requires cross-referencing to section 382 in order to be satisfied. Neither party raised paragraph (b) as an issue for my consideration. Therefore, the applicant is a person protected from unfair dismissal.
[35] Paragraph (c) and (d) of section 396 have no relevance in this case.
[36] The applicant claimed that he had been unfairly dismissed and sought reinstatement and money for lost remuneration.
[37] Section 385 of the Act provides that a person has been unfairly dismissed if FWA is satisfied as to four criteria:
“(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.”
[38] Paragraph (a) of section 395 is satisfied by way of the dismissal of the applicant. Paragraphs (c) and (d) have no relevance in this case. As to paragraph (b), the applicant said his dismissal was harsh and/or unjust and/or unreasonable.
[39] In order to determine whether the applicant’s dismissal was harsh, unjust or unreasonable, it is necessary for FWA to consider the factors set out in section 387. Those factors are:
“(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) he 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 matter that FWA considers relevant.”
(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);
[40] The first factor to be considered is whether there was a valid reason for the dismissal. In this case, the issue put against the applicant relates to his conduct and capacity (including its effect on the safety and welfare of other employees).
[41] The reason for dismissal was not set out in the letter of dismissal, dated 18 June 2010. The letter merely said, “Please consider this letter formal notification of your termination of employment in accordance with today’s discussions effective today, 18 June 2010.” The letter was signed by Steve Kovac, General Manager Integra Coal Operations. The letter is attached to the witness statement of Michael Gallegos. 3
[42] Under cross-examination, Michael Gallegos confirmed there were two (2) reasons for the applicant’s dismissal: (a) he had adulterated his first urine sample; and (b) he had lied about the consumption of cannabis in the previous 24-hour period prior to the test. 4
[43] In re-examination, Michael Gallegos explained “adulterated” to mean that the first urine sample was one provided by somebody else or had a different additive added to it to make it cold. 5 As to the dishonesty, the witness statement of Michael Gallegos refers to two (and not one) acts of dishonesty. Thus, the applicant had indicated on the Pre-Screening Declaration that he had not taken any illicit drugs in the preceding 24 hours and he had told the Tester that he had not taken any drugs, after he had tested positive (non-negative).6 I will now consider those two reasons for dismissal as to whether they constituted valid reasons for dismissal.
Adulterated Urine Sample
[44] The first urine sample, being the one described as cold to the touch by the Tester, is the urine sample described as adulterated and for which the applicant was dismissed.
[45] Having considered the evidence as to the first urine sample, I conclude that it was adulterated and as such, was a false urine sample. The evidence for that conclusion is set out below:
(a) The urine sample was cold, temperature speaking. Each specimen cup has an in-built temperature reading strip. By contrast, a valid urine sample, said the Tester, would record a temperature reading of 33 to 38oC. 7
(b) The first urine sample was immediately provided by the applicant to the Tester, with only a lapse of seconds between the two events. The urine sample did not have time to fall from a mid 30oC reading to a reading that caused the Tester to say it was cold to the touch.
(c) The applicant did not challenge the Tester’s observation that the first urine sample was cold to the touch.
(d) The laboratory report on the first urine sample, tested negative for metabolites of cannabis. 8 By contrast, and perplexingly, the applicant’s second urine sample taken about one and one-half hours later, tested positive in the laboratory for metabolites of cannabis.9 The perplexity of two different readings for the presence of metabolites of cannabis (not present and then present) is explained by the first urine sample, not being that of the applicant’s.
[46] I have found that the first urine sample was adulterated. That is, the applicant provided a false sample in order to avoid the detection of metabolites of cannabis in his body’s system. Mr Gallegos’ witness statement sets out various factors for the decision to dismiss the applicant: the applicant had deliberately provided a false sample knowing that he potentially had THC (metabolites of cannabis) in his system above the prescribed levels and he could have been sent back to work if the sample had not been detected as false; the applicant displayed no remorse for his conduct in providing a false sample or for the fact that he had subsequently tested positive for THC; and that the applicant was willing to try and deceive the respondent where important safety consequences may result .... he had put his own recreation ahead of the safety of the people around him and himself. 10
[47] The Union put forward a submission as to why the first urine sample and its adulteration could not be relied upon as a basis for the dismissal of the applicant. The basis for this submission went to the respondent’s policies and the relevant standard, AS 4308, which forms a foundation for those policies. Thus, the Union said that the respondent had not complied with its own policy in respect of “chain of custody” for the testing of urine sample. This was a substantive breach of the respondent’s policy submitted the Union and not a procedural breach. The “chain of custody” testing requirement was breached twofold: (a) when the applicant exited the testing room around 3.45pm; and (b) when the Tester inadvertently placed the first urine sample in the refuse bag.
[48] I will put these two issues into context by explaining the chain of custody concept. This concept refers to the eighteen (18) steps required for urine sampling and is found within the D & A Procecure. 11 The eighteen steps are listed under the heading: Urine Collection Guidelines (the Guidelines).
[49] The essential features of those Guidelines are as follows:
(a) the donor and Tester work through a form called the D&A Pre-Screening Declaration & Permanent Record (the Declaration Record) 12;
(b) the donor provides urine sample into specimen cup and hands to the Tester;
(c) the urine specimen cup has an in-built temperature indicator strip (attached to outside of cup) and the temperature reading is checked by the Tester.
(d) if the urine sample tests negative, then the donor has passed the test and is free to return to work;
(e) if the test is found to be “non-negative”, then the testing procedure continues;
(f) the Tester contacts the appropriate company supervisor to advise of a non-negative result;
(g) the Tester takes the non-negative urine sample and siphons it off into 2 or 3 vials (glass tubes), all of which should be sealed, labelled, dated and have the relevant signature;
(h) the Declaration Record is completed; and
(i) the vials are despatched for laboratory analysis.
[50] Throughout the 18 steps, there is a requirement for the urine sample to remain within sight of both parties until properly sealed for despatch (step 8). This requirement was not followed for the first urine sample, given that the applicant exited the testing room around 3.45pm. This exiting and therefore a break in the chain of custody is relied upon by the Union to say that the first urine sample should have been discarded from the testing process. If this submission is accepted by FWA, then the respondent’s first reason for dismissing the application would be no longer valid.
[51] The importance of the concept of chain of custody (maintaining the integrity of the testing process for all concerned) is recognised by all parties. Although, the Union submits that the exiting of the applicant from the testing room, broke the chain of custody, I conclude that the exiting incident is not relevant to the issue at hand. Thus the respondent dismissed the applicant for providing a false urine sample and it mattered not whether the chain of custody was broken. The provision of a false sample, and the intent to do so, can not be overridden by an argument as to breach of chain of custody. The respondent also submitted, as to this Union defence, that the chain of custody, in any event, was broken after the provision of a false urine sample and therefore the Union’s argument is not relevant. I also agree with this submission.
[52] The other defence raised by the Union as to why the first urine sample should not be relied upon, goes to the incident where the Tester inadvertently placed the first urine sample in the refuse bag. In doing so, that sample/specimen cup was out of sight of the applicant and his witness (Mr Andrews), said the Union. Thus, another breach in the chain of custody concept had occurred, said the Union, because the specimen cup was not in sight of the applicant and his witness. There were other specimen cups from the testing of other workers, in the refuse bag. These had been placed in the refuse bag between the time of the applicant’s first test sample around 3.45 pm to the time of the second test sample (around 5.00pm). Had the Tester pulled out the wrong specimen cup?
[53] The Tester deposed that he had pulled out the correct specimen cup for two reasons: (a) he had written the word “COLD” on the lid of the cup and that was the cup he had pulled out of the refuse bag; and (b) he had placed a spill sheet in the refuse bag when he carried out the recent clean-up function and all previous specimen cups were in the refuse bag, sitting below this spill sheet. He deposed that he asked the applicant and Andrews if they agreed this was the correct specimen cup and they concurred. 13
[54] The applicant deposed to a different conversation between he and the Tester and one in which the applicant initiated the conversation and asked if the retrieved cup was the correct cup. 14
[55] Having considered the evidence as to this issue, I am satisfied that the retrieved specimen cup was the correct cup, even though both the applicant and Andrews said that they did not see the word “COLD”, written on the specimen cup. My reasoning is based on the evidence of Mr Andrews, the witness for the applicant. He provided an initial witness statement on 2 June in consequence of the respondent’s investigation into the incident. 15 He states that he questioned the Tester as to the retrieval of the correct cup. Andrews then records that, “The Tester then opened the disposal bag, and the person in question (the applicant) and myself looked inside and observed that there was other waste materials (plastic lid bags) that would have separated the first sample cup from the other test cups.”16
[56] This evidence confirms that of the Tester that he had just placed a plastic spill sheet in the refuse bag and therefore this spill sheet separated the first specimen cup from all other cups. The applicant did not look inside the refuse bag. 17 The Tester, therefore had retrieved the correct cup and the Chain of Custody was not broken at that point in the D&A Procedure and the correct cup was despatched for laboratory analysis.
[57] Having rejected the Union’s submissions about alleged breaches in the Chain of Custody, I find that there was a valid reason for the dismissal of the applicant for this particular reason for dismissal advanced by the respondent. I will now deal with the second ground for dismissal.
Dishonest Representation about Illicit Drugs
[58] Michael Gallegos referred to two acts of dishonesty by the applicant as another ground for summary dismissal. Thus, he asserted that the applicant had indicated on the Pre-Screening Declaration that he had not taken any illicit drugs in the past 24 hours and he had told the Tester that he had not taken any drugs, after he tested non-negative to the second urine sample.
[59] The first alleged act of dishonesty that the applicant gave a dishonest answer to a question in the Declaration was retracted by Mr Gallegos under cross-examination. 18 That question asks the donor if he/she has taken any drugs in the preceding 24 hours. The applicant answered in the negative. Although the applicant tested positive for metabolites of cannabis, the evidence showed that that does not mean that the applicant had taken any illicit drug in the preceding 24 hours. Mr Gallegos agreed under cross-examination, that an illicit drug can remain in the body’s system for a period of time which varies from individual to individual. The applicant took the urine test for which he tested positive on the second sample, on Friday 21 May 2010. The applicant gave evidence that the last time he had used an illicit drug was on the previous Saturday night.19
[60] The second alleged act of dishonesty raised by Mr Gallegos for the dismissal was based on an alleged question being put to the applicant following his testing non-negative for the second urine sample. He was then allegedly asked a different question to the one appearing in the Declaration. The Tester deposed he asked the applicant: “Would you like to declare any substances now?” 20 The applicant responded in the negative and it is this response that Mr Gallegos relies upon for dishonesty given that the subsequent laboratory test showed a positive result for metabolite of cannabis.21
[61] For the reasoning set out below, I have decided that the respondent has not made out its case that the applicant has engaged in any dishonesty in responding to this alleged question of the Tester.
[62] Firstly, on my reading of the transcript, I cannot ascertain that the applicant was cross-examined and then challenged on this issue that he had given a dishonest response.
[63] Secondly, the cross-examination of the applicant on his responses to the Pre-Screening Declaration form, was limited to those five (5) questions appearing on the form. 22 None of these questions line up with the question to which the applicant allegedly gave a dishonest response. (Arising out of discussion between myself and the advocates during proceedings, I was subsequently provided with a legible copy of the relevant form signed by the applicant on 21 May 2010. This copy is now identified as Exhibit 9.)
[64] Thirdly, even if the question was asked and answered as deposed by the Tester, it is possible that the applicant misunderstood the question. This was conceded in final submissions by the respondent’s advocate, Mr Morris. 23 Thus, the applicant himself may have thought he was being asked one of the five questions that asks: “Have you taken any illicit drugs within the previous 24 hours?”
[65] For the foregoing reasoning, I conclude that the respondent has not made out its case that the applicant was dishonest in his response to the Testers’ question. Overall as to this second ground of dishonesty as being a reason for dismissal, I find that it does not represent a valid reason for dismissal.
[66] As to the first reason for dismissal, I find that there was a valid reason for the dismissal of the applicant. That is, the applicant had provided a false urine sample (the first sample) for testing.
(b) whether the person was notified of that reason
[67] The applicant conceded that he was notified of the reason for summary dismissal.
(c) whether the person was given an opportunity to respond to any reason to the capacity or conduct of the person
[68] The applicant was afforded opportunities to respond during the investigation by the respondent into the incident.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussion relating to dismissal
[69] The applicant advised that this was not an issue.
(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about the unsatisfactory performance before the dismissal
[70] The applicant advised that this was not an issue as he had been summarily dismissed for misconduct and not for performance. The respondent concurred.
(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
[71] This was not an issue.
(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
[72] This was not an issue.
(h) any other matters that FWA considers relevant
[73] The respondent, through Mr Gallegos, held the view that the applicant’s conduct (in testing positive for an illicit drug) showed that the applicant had a disregard for his safety (and others) at work. That is, he had been at work prior to the random testing and in those days leading up to the eventual positive testing, he had been working whilst, presumably, under the influence. Thus, Mr Gallegos, was putting that there was a correlation between illicit drug taking and impairment on the job.
[74] No evidence was presented to FWA, that the applicant was impaired on the job.
[75] One of the five questions on the Pre-Screening Declaration asks: “Are you currently under the effects of any prohibited substances?” The applicant responded in the negative. The applicant was not tested for “effects”. He was only tested for detection. The fact that he tested eventually positive, does not mean that he also tested adversely for “effects”.
[76] I have also taken on board for my deliberation as to the alleged unfairness of the dismissal, the applicant’s length of service (since 2001).
CONCLUSION
[77] The applicant filed an unfair dismissal application and sought the primary remedy of reinstatement, without break of service.
[78] I have also considered the two grounds for dismissal as to whether they constitute valid reasons for dismissal. I held that the first ground for dismissal did so - that is, the applicant provided a false urine sample. I held that the second ground for dismissal did not constitute a valid reason for dismissal - the allegation that the applicant had dishonestly responded to a questions put to him by the Tester.
[79] Given that one of the grounds for dismissal has been found to be a valid reason and having regard to all the evidence, I find that the dismissal of the applicant was not harsh, unjust or unreasonable.
COMMISSIONER
Appearances:
Mr A Bukarica, union official, for the applicant
Mr A Morris, solicitor, for the respondent
Hearing details:
2010
Newcastle
21 and 22 September
1 Ex 2, para 56
2 ibid, paras 57 & 58
3 Ex 8, Annex MG-6
4 PN 1296 to 1299
5 PN 1518
6 Ex 8, para 33 (g)
7 PN 481
8 Ex 2, Annex SS-11
9 ibid, Annex SS-12
10 Ex8, para 33
11 Ex 2 Annex SS-4
12 ibid, Annex SS-7
13 ibid, paras 56 to 58
14 Ex 1, paras 13 & 14
15 Ex 7, Annex DRA-1
16 ibid, para 6
17 PN 337 to 339
18 PN 1444 to 1519
19 PN 191 to 192
20 Ex 2, para 50
21 Ex 8, para 33 (g)
22 PN 222 to PN 244
23 PN 1702 to PN 1706
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