[2015] FWC 8559 [Note: An appeal pursuant to s.604 (C2016/2017) was lodged against this decision - refer to Full Bench decision dated 25 February 2016 [[2016] FWCFB 1068] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Michael Sullivan
v
North West Crewing Pty Ltd T/A Westug
(U2015/11236)

COMMISSIONER ROE

MELBOURNE, 14 DECEMBER 2015

Termination of employment – alleged unfair dismissal.

Agreed Summary of Issues

[1] Mr Sullivan was employed as a deckhand for Westug from 12 July 2011 until his dismissal effective 3 August 2015 on grounds of serious misconduct. The serious misconduct was that on 23 July 2015 he tested positive to methylamphetamine in a random drug and alcohol test. Westug paid six weeks in lieu of notice. Mr Sullivan had commenced work on 23 July 2015 and some hours after commencing was subjected to a random test which Westug say proved positive.

[2] It is not in dispute that:

● Mr Sullivan’s employment with Westug was covered by the North West Crewing Australia Pty Ltd Enterprise Agreement 2013 (the Agreement).
● The termination of employment was at the initiative of the employer and related to conduct not performance.
● The issues related to the positive drug test were the sole reason for termination.
● The termination was not for reasons of redundancy.
● Westug is not a small business.
● Mr Sullivan had more than six months continuous employment with Westug at the time of the dismissal.

[3] It is not disputed that the allegations were put to Mr Sullivan and that he had the opportunity to respond to those allegations at meetings on 30 July and 3 August 2015. It is not disputed that Westug considered Mr Sullivan’s responses prior to making a decision to terminate his employment. Mr Sullivan was represented by The Maritime Union of Australia (MUA) at both meetings.

[4] Mr Sullivan suggests that there was unfairness because Westug placed limitations on the extent to which his representative could intervene at the meetings. It is not disputed that Westug placed limitations on the role of the MUA representative at the meetings. This is not contrary to Section 387(d) of the Fair Work Act 2009 (the Act). However, it may be a relevant consideration under Section 387(h) of the Act.

[5] As a large employer Westug has dedicated personnel with human resource expertise.

[6] Therefore, it is not disputed that Sections 387(b), (c), (d), (f) and (g) of the Act are neutral factors in this case and that Section 387(e) is not relevant because the dismissal related to conduct not performance.

[7] The issues in contention in this case relate to whether or not the positive drug test was a valid reason for dismissal (Section 387(a) of the Act) and whether or not there are other matters which are relevant (Section 387(h) of the Act).

[8] It is not disputed that the work of deckhand is hazardous and requires employees to be fit and alert. One of Mr Sullivan’s jobs was to keep watch in a dangerous environment involving very large vessels and other tugs. It is not disputed that Westug utilise a number of processes to reinforce occupational safety requirements including the requirement that workers are not fatigued and are fit for work. This includes prominent signage and a requirement for employees to complete a Take 5 pre-task assessment which includes verification of personal fitness for duty.

[9] In respect to valid reason Mr Sullivan says that there was no valid reason because:

● He never conceded that he had knowingly taken methylamphetamine whilst in Bali.
● He denies that he admitted taking illicit substances in the past and denies that he said he abused his prescription medicine by taking extra tablets when going out.
● The samples were not taken in a secure and appropriate manner and the outcome of the tests should not be accepted as proof that he had taken methylamphetamine. Mr Sullivan says that the Western Diagnostics test he arranged on 23 July 2015 is relevant to this.
● Based on Westug’s own policies a first positive drug test does not constitute a valid reason for dismissal. A warning is the appropriate outcome.

[10] In respect to valid reason Westug say that there is a valid reason because:

● The drug test is adequate evidence that Mr Sullivan knowingly attended work whilst affected by drugs.
● Mr Sullivan conceded that he may have taken methylamphetamine whilst in Bali.
● Mr Sullivan said things which suggested that he may have abused his prescription medicine and taken illicit substances in the past.
● Westug’s policies in respect to drug and alcohol use and fitness for duty are well advertised, understood and implemented.
● Breach of reasonable drug and alcohol policies is a valid reason for dismissal having regard to the hazardous environment in which Mr Sullivan and Westug operates and its obligations to regulators and its clients. Serious legal and business obligations apply to Westug in respect to OHS and there are serious consequences for breaches.

[11] The other matters raised by Mr Sullivan are:

● The inability of his representative to effectively intervene during the meetings on 30 July and 3 August 2015.
● He had never seen the staff policy and procedures handbook before his termination.
● The decision to terminate is harsh or disproportionate. The Fitness for Work Procedure says words to the effect that employees may be given a warning for a first strike.

[12] The other matters raised by Westug are the submission that this was the first time that there had been a positive result for methylamphetamine and the way in which it was responded to by Westug would be perceived as important by its client and by other employees.

[13] The relevant Agreement and polices have been identified. Important elements of these documents for the purposes of this case are as follows.

[14] Clause 12.2 of the Agreement requires that employees comply with random testing for drugs and alcohol as part of the company’s “zero tolerance policy with respect to drugs and alcohol.” The Clause is as follows:

“12.2 Health and Safety

(a) The safety of employees is of paramount importance and is considered a first priority by all managers and supervisors.

(b) Employees also have an obligation to ensure they and their co-workers work in a safe manner. In entering this Agreement with the Company it is expected that all Employees will:

accept accountability for their own safety behaviour and that of others;

participate in safety training and be involved in the Company's safety efforts;

carry out work only when it can be safely;

report all hazards and incidents and take appropriate action to rectify them as soon as practicable;

wear or use any protective equipment or material the Employee is required to wear or use in such a way as to achieve the purpose for which it is supplied; and

comply with any fitness for work testing requirements including random testing for alcohol or prohibited substances which the Company may require an Employee to undergo as part of its zero tolerance policy with respect to drugs and alcohol.

(c) Failure to comply with the employee's health and safety obligations will be deemed as misconduct and may form the basis for instant dismissal.”

[15] The Staff Policy and Procedure Handbook says that: “you must not be under the influence of any unlawful drugs anywhere on our premises during working hours” (Page 25). The policy requires notification of prescription or non-prescription drugs which may “affect your fitness for work”. It also provides that “if you are under the influence of alcohol or an unlawful drug you may be immediately dismissed for serious misconduct” (Page 26). The policy says that in making any decision to dismiss the company will take into account a number of factors such as:

“ The serious and unacceptable nature of your behaviour.

The risk posed to your safety and others.

Any previous occasion that you have breached this policy.

Your ability to demonstrate that you are taking responsibility for your own problem. And that the problem is being or will be addressed.

The underlying reasons why you have used alcohol or drugs to the extent that you were unfit for work.”

[16] The Staff Policy and Procedure Handbook in its Introduction deals with scope and purpose. It specifically states the handbook provides a “brief general overview and guide to policies and procedures” and that it must be read in conjunction with “specific policies”. There is a specific policy which is the “Fitness for Work Procedure”. That policy provides the details in respect to “drugs and alcohol”. Relevantly this policy requires that:

● Employees must inform supervisors of any prescribed medication being taken and if this has not occurred prior to a drug test and the medication is found in the drug test then this can relate in disciplinary action.
● Employees are required to undergo tests and provide a negative outcome.
● Misuse of drugs is defined as use which could result in impairment and/or a test result which exceeds the limits prescribed in the procedure.

[17] The Fitness for Work Procedure provides that following a positive test for drugs there will be an interview and opportunity to respond: “Following investigation and any subsequent counselling session, disciplinary action may also be implemented which may include; a written warning, first and final warning or notice of termination. Westug will ensure appropriate arrangements are made by the employer for transportation of the employee to his or her place of accommodation” (Page 14 of Fitness for Work Procedure). The Procedure then goes on to define the particular disciplinary consequences for first offence positive results and subsequent offence positive results.

[18] The Fitness for Work Procedure contains a “disciplinary action table” which identifies these disciplinary consequences associated with test outcomes. Relevantly it provides:

“ Drug test positive (preliminary test) – failing to inform Westug of a medication or prescribed medication – written warning”.
“ Drug test positive – substance is a banned substance or medication above the AS4308:2008 drug cut off limits or the employee has failed to inform Westug they are taking a prescribed medication and medication is above drug cut off limits – written first and final or notice of termination if not first offence” (Page 17 of Fitness for Work Procedure).

[19] The focus of evidence and cross examination were on the following disputed facts which are relevant to determining if the dismissal was unfair.

a. Was Mr Sullivan aware of the staff policy and procedures handbook and the fitness for work procedure and did Westug take all reasonable steps to make Mr Sullivan aware of the staff policy and procedures handbook and the fitness for work procedure?

b. Did Mr Sullivan in the interviews leading up to the dismissal admit to taking illicit substances in the past and to misusing his prescription medicine by taking extra tablets when going out?

c. Did Mr Sullivan concede that he may have taken methylamphetamine whilst in Bali prior to the 23 July 2015 test?

d. Do the Path West tests demonstrate that Mr Sullivan had unacceptable levels of methylamphetamine in his system whilst at work on 23 July 2015? Were there any problems with the collection and control of the samples and the testing process and reporting?

e. Is the Western Diagnostics test relevant and does it raise significant doubts about the validity of the Path West tests?

f. Do the Westug policies provide for a warning for a first strike? Is summary dismissal for a first strike consistent with Westug policies?

[20] Westug rely on certain other disputed facts in respect to remedy if the dismissal is found to be unfair. (Note: Mr Sullivan is seeking reinstatement and Westug strongly opposes reinstatement.)

a. Did Mr Sullivan make the “rabbit” remark?

b. Did Mr Sullivan unreasonably fail to move from the company accommodation in a timely manner following the dismissal?

c. Did Mr Sullivan demonstrate a cavalier attitude to Westug’s drug policy such that Westug could have no confidence that he would respect and adhere to the policy in the future?

[21] Mr Sullivan will need to give some further evidence concerning his efforts to find employment since the dismissal and his earnings since the dismissal.

Conduct of the proceedings

[22] As Mr Sullivan was not represented in this complex case I prepared a draft summary of issues for the parties to consider in advance of the hearing. After hearing from the parties I amended the draft and I adopt the section “Agreed Summary of Issues” above and I note that it was agreed to by the parties. Mr Sullivan was represented by the MUA at the meetings leading to the dismissal but he was not represented in his unfair dismissal application.

[23] After hearing the evidence I decided to assist Mr Sullivan in making his final submissions by putting to Mr Sullivan my preliminary views concerning each of the matters in factual dispute in paragraphs 19 and 20 above (except for 19(f) in respect to which I sought further submissions from Westug). I provided Mr Sullivan with the opportunity to respond to my preliminary views in respect to each of those matters and I have considered his responses in reaching my final conclusions on the disputed facts as set out below. I then provided the parties with the opportunity to make further submissions.

Was Mr Sullivan aware of the staff policy and procedures handbook and the fitness for work procedure and did Westug take all reasonable steps to make Mr Sullivan aware of the staff policy and procedures handbook and the fitness for work procedure?

[24] Mr Sullivan accepts that he received an email dated 16 December 2013 which advised him of “your New Terms and Conditions effective 18 December 2013”. Those terms and conditions included the Agreement which was approved by the Fair Work Commission on 11 December 2013 and the Staff Policy and Procedures Handbook 2013 (16 December 2013 version). The documents were attached. 1 Mr Sullivan also accepted that he was aware of the Fitness for Work procedure. Mr Sullivan says that he did not read the Staff Policy and Procedures Handbook at the time. Westug says that the Agreement and the Handbook were negotiated during the enterprise bargaining process and that employees were also made aware of the documents during the bargaining process.

[25] The Staff Policy and Procedures Handbook is referred to in three operative clauses of the Agreement. Those references provide that the Handbook may supplement the terms of the Agreement in respect to transport and accommodation. For example:

“(b) The Company Staff Policy and Procedure Handbook contains any other terms and conditions which apply in relation to an Employee's transportation to and from work, including whether an Employee is paid for any time spent travelling to and from the relevant work site” (Clause 8.2(b)).

The Agreement makes no reference to the Handbook in the provisions with respect to termination or drugs or health and safety.

[26] Mr Sullivan submits that the version of the Handbook which was distributed to him, together with a copy of the Agreement, a few days after the Agreement was approved may have been different to that which had been provided to employees prior to the vote on the Agreement. Mr Sullivan did not dispute the submission of Westug that the two documents had been negotiated at the same time. Under the Fair Work Act the Agreement could not have been approved unless employees had access to both the Agreement and the Handbook in the seven day period immediately before the vote which made the Agreement. I am not satisfied that there is any basis to conclude that the content of the Handbook was changed in this short period.

[27] I am satisfied that Westug took all reasonable steps to make Mr Sullivan aware of the Staff Policy and Procedures Handbook and of the Fitness for Work Procedure. I am also satisfied that Mr Sullivan was aware of the Fitness for Work Procedure. Mr Sullivan signed an acknowledgment that he read and accepted that procedure on 21 August 2014.

[28] I do not consider it reasonable to expect employees to remember the detail of lengthy policy documents. However, it is not contested that Mr Sullivan undertook training in January 2014 and as part of that training acknowledged that he had read and understood the Policy and Procedures Manual and the SHE Manual which includes the Fitness for Work Procedure. It is also not contested that on return to work after each 28 day break employees, including Mr Sullivan, were required to complete a “Take 5 pre-task hazard assessment”. The first question employees must answer is “Am I fit for work and ready?” It is also not contested that “Lifesaving Commitments” are prominently displayed at work and these signs remind employees of safety issues including: “I will talk to my supervisor if I am feeling fatigued and will not present to work under the influence of alcohol or drugs”. 2

[29] Mr Sullivan had been subjected to a random drug and alcohol test by Rio Tinto whilst working for Westug on a previous occasion and so I am satisfied that he was aware that Westug assessed whether or not the obligation not to work under the influence of alcohol or drugs was being met through such random tests. I am satisfied that Mr Sullivan was aware that as a result of a confirmed positive test above the cut off limits in the Australian/New Zealand Standard AS/NNS 4308 Westug would conclude that the employee was working under the influence of alcohol or drugs.

Did Mr Sullivan in the interviews leading up to the dismissal admit to taking illicit substances in the past and to misusing his prescription medicine by taking extra tablets when going out?

[30] Mr Sullivan accepted in cross examination that he had taken illicit drugs in the past and I am satisfied that he conceded this during the show cause interviews following the 23 July drug test.

[31] Mr Sullivan accepted during the proceedings that he did on occasion take extra tablets of his prescription dexamphetamine medication to enhance his experience when going out when on leave. I am satisfied that he also conceded this during the show cause interview on 30 July 2015 and I accept the evidence of Mr Serle and Mr Minchin to this effect. Mr Sullivan did not concede during the proceedings that this was “misuse” of his prescription medicine.

Did Mr Sullivan concede that he may have taken methylamphetamine whilst in Bali prior to the 23 July 2015 test?

[32] Mr Sullivan said in the show cause interview on 30 July 2015 that he did not take drugs and that he had not intentionally gone to work with drugs in his system and that he did not think that he had a problem with drugs.

[33] Mr Minchin took detailed contemporaneous notes of the meetings on 30 July and 3 August 2015. Mr Serle did most of the talking for Westug during the meeting so I am satisfied that Mr Minchin was able to concentrate on taking notes. The notes obviously do not accurately record every word that was said at the meeting. However, I accept that Mr Minchin’s notes are a reasonably accurate account of what transpired. Mr Serle and Mr Minchin gave consistent evidence of what transpired at the meetings except in respect to the issue of MUA representation with which I deal later.

[34] Mr Sullivan said that he did attend a party in Bali the Sunday afternoon (19 July) before he returned to work on the Thursday, 23 July 2015. He said that something might have happened at the party which resulted in the positive test. However, he denied that he had consciously taken drugs at the party. 3

[35] Mr Sullivan gave evidence that his dexamphetamine prescription usually lasts 21 days and as a result if he was in Bali for 28 days there would be one week when he would be unable to fill his prescription. Mr Minchin and Mr Serle gave evidence which I accept that during the interview on 30 July 2015 Mr Sullivan said that in that period he gets the urge to seek illicit substances. Mr Sullivan also accepted during cross examination that he had the urge to take illicit drugs. 4

[36] Mr Serle gave evidence that Mr Sullivan had conceded at the interview on 30 July 2015 that he was feeling unwell at work prior to the drug test on 23 July 2015 and had lain down of the floor of the deckhouse for a while.

[37] I am satisfied that Mr Sullivan conceded that he may have been exposed to drugs in Bali prior to his return to duty on 23 July 2015 but he denied that he had knowingly taken methylamphetamine.

Do the Path West tests demonstrate that Mr Sullivan had unacceptable levels of methylamphetamine in his system whilst at work on 23 July 2015? Were there any problems with the collection and control of the samples and the testing process and reporting?

[38] Evidence concerning the tests on Mr Sullivan’s urine collected on 23 July 2015 was given by Mr Sullivan, Mr Seeber who collected, sealed and packaged the sample, Dr Cruickshank who was responsible for verifying the results of tests on the sample conducted by Path West a NATA accredited laboratory, and Ms Olivera and Mr Chriswell who are scientists who were involved in the conduct of tests on the sample in the Path West laboratory.

[39] Mr Sullivan did not raise any concerns about the collection of the sample at the time it was taken. He did raise some concerns at the show cause meeting on 30 July 2015. However, he did not raise any concerns about the methods used by Path West to test the sample prior to the termination of his employment. 5

[40] In the proceedings Mr Sullivan raised some doubts about the qualifications of Mr Seeber to collect and secure test specimens. I am satisfied by the direct evidence of Mr Seeber that he has the appropriate AQTF qualification for this work as required by AS/NZS 4308. 6

[41] Mr Seeber gave detailed evidence as to how he complied with each step of Section two of AS/NZS 4308 to meet the requirements in respect to the collection and securing of the sample. Mr Sullivan accepts that he filled out and signed the chain of custody form for the sample. On that form he signed to certify that the sample was his and that the containers were sealed with tamper evident seals in his presence and that the information contained on the form and the labels was correct and that he consented to the analysis in accordance with AS/NZS 4308 and the release of the results.

[42] Mr Sullivan also signed a form “Notification of “not negative” initial result”. That form includes a statement signed by Mr Sullivan that “I hereby acknowledge and accept these results and my obligations under the Rio Tinto Iron Ore Alcohol and Other Drugs Policy Statement.” This was acknowledgement by Mr Sullivan that the initial screening test conducted at the site had indicated the presence of opiates (morphine), amphetamine and methylamphetamine and that the sample would be sent to a NATA accredited laboratory for confirmatory testing under a chain of custody process.

[43] Mr Sullivan gave evidence that:

● At some stage during the collection process Mr Seeber’s body obscured his view of the collection vessel and that at some stage he was told to sit with his back to the sample.
● The process of sealing the containers did not take place in the collection or testing room but in the adjacent medical room.
● That other persons entered the medical room prior to the containers being sealed.
● That Mr Seeber left the medical room on a number of occasions.
● The chain of custody form and the samples were not labelled and filled out correctly.

[44] I consider that the failure of Mr Sullivan to raise any of these issues at the time and his signing of the chain of custody and the initial screening forms reduces the probity of this evidence.

[45] Mr Seeber denies that he obscured the view of the collection vessel. Mr Sullivan did not raise any concern about this issue at the time. He signed the acknowledgment on the chain of custody form. I accept Mr Seeber’s evidence that all aspects of the initial screening test and then the sealing and labelling of the sample were conducted on the bench in the testing room in Mr Sullivan’s full view. I do not accept that Mr Sullivan was directed to sit with his back to the sample.

[46] Mr Seeber says that the sealing of the samples was completed in the testing room. I am satisfied that Mr Sullivan was understandably agitated by the non-negative screening test. I am satisfied that Mr Seeber is an experienced tester. There is no evidence of negative history between Mr Seeber and Mr Sullivan. With one exception I deal with later, I found Mr Seeber to be a convincing and consistent witness. I accept Mr Seeber’s evidence and prefer it to Mr Sullivan’s evidence.

[47] Mr Seeber denies that anyone entered the testing room when the containers were being sealed. Mr Sullivan’s allegation was that other persons entered the medical room not the testing room and my finding that the containers were sealed in the testing room reduces any risk to the integrity of the sample and the procedures.

[48] Mr Seeber gave evidence that after the samples were sealed and he and Mr Sullivan moved to the medical centre there were only two other persons who entered the secure medical centre and they were Ms Murphy and Mr Lowe. Ms Murphy is a trainee Emergency Management Officer. She is being trained to do Mr Seeber’s job. Mr Seeber says that he needed to leave the centre in order to escort Mr Lowe, who is Mr Sullivan’s manager, into the facility so that Mr Lowe could escort Mr Sullivan. Mr Seeber gave evidence that personnel cannot get access to the medical centre using the normal swipe card and that only the limited number of workers in the medical centre had access using a key pad. As there is a requirement that the candidate cannot be left alone with their sample he asked Ms Murphy who was in the adjacent room to come in to be with Mr Sullivan whilst he went and got Mr Lowe.

[49] I am satisfied that Mr Sullivan was alone in the room with his sample for a very short time whilst Mr Seeber got Ms Murphy from the adjacent room.

[50] I accept Mr Seeber’s evidence and I am not satisfied that there was any risk to the integrity of the sample or the chain of custody.

[51] I also accept Mr Seeber’s evidence that he:

● Put identifying initials on the testing cup prior to collecting the sample.
● Was not required by the AS/NZS 4308 to get Mr Sullivan’s signature on the collection cup.
● Did not require Mr Sullivan to change rooms other than from the testing room to the medical room after the samples were sealed.

[52] Mr Sullivan made a compliant to NATA about the collection and testing of his samples. The outcome of NATA’s investigation of Mr Sullivan’s complaints were provided by Mr Hill on 11 November 2015. 7 Mr Hill advised that:

“NATA’s investigation has confirmed that the samples received by Pathwest were compliant with Clause 2.4(a) of AS/NZS4308:

“the collector shall ensure that each container is labelled in such a manner that can be traceable to the donor and the chain-of custody form.”

PathWest is only responsible for including a compliance statement for the sections of AS/NZS 4308 that they are accredited for i.e. 4 and 5.

NATA notes that the collection company is not NATA accredited.

The Medical Testing ISO15189 Field Application Document includes the following criteria

5.9.1(a)

Where the laboratory receives samples from a non-accredited collection agency for drugs of abuse testing in accordance with AS/NZS 4308 a statement reflecting this must be included in the test report. Where the point of care test report format does not permit additional information, this statement must be included as information accompanying the report.”

[53] I am satisfied that:

● NATA found no issues with the collection and custody of the sample.
● NATA found that PathWest is not required to include a compliance statement for Section two of AS/NZS4308 aspects of the process. That is the collection process conducted by RioTinto and Mr Seeber.
● NATA found that to be compliant with ISO15189 PathWest should have included a statement on their report or accompanying their report that the sample collection agency is not NATA accredited. However, it is not a requirement of AS/NSZ 4308 that the collection agency be NATA accredited.
● The failure to include a statement that the collection agency was not NATA accredited on the PathWest report does not call into question the integrity of the PathWest tests or its reported results.

[54] The regulation of testing under AS/NZS 4308 and the accreditation of laboratories by NATA are two different matters. PathWest is NATA accredited and it is not relevant to this case whether or not PathWest may have done or not done some things which are inconsistent with NATA accreditation requirements provided that the issues do not compromise the integrity of the tests as measured by AS/NZS 4308. For the same reason alleged inconsistencies with the NATA document “Interpretation of NPAAC Requirements and ISO 15189” are not relevant. The alleged inconsistencies do not raise any issues about the integrity of the tests and their reporting as measured by AS/NZS 4308. 8 I accept the unchallenged evidence of Dr Cruickshank that he was not aware that RioTinto was not NATA accredited. I am not satisfied that any of the alleged inconsistencies with the NATA requirements affect the integrity of the tests and their reporting.

[55] Mr Sullivan raised a number of concerns about PathWest’s report on its testing of his sample. In particular he raised the absence of signatures on the reports. I accept the evidence of Dr Cruickshank that his electronic signature appears at the bottom of the reports and I can see no inconsistency with the standard in the use of electronic signature. Mr Sullivan also raised a number of issues about the difficulties he says he had in getting copies of information from PathWest. I do not consider this to be relevant to the integrity of the testing and reporting process. Ultimately it is the reports and evidence before me which is critical to determining that question.

[56] Having examined the qualifications and experience of Dr Cruickshank and after considering the evidence that he provided on summons I am satisfied that he should be treated as an expert witness.

[57] I am fully satisfied by his evidence concerning the integrity and accuracy of the testing and reporting process relating to Mr Sullivan’s sample. The evidence of the other two scientists was consistent with this evidence.

[58] Mr Sullivan raised concerns that the chain of custody form may have been altered or tampered with because of the nature of faint impressions from what appears to be a marker pen on a photo copy of the form provided to him by Path West in response to a Freedom of Information request. I accept the evidence of Dr Cruickshank and the scientists that they did not alter or tamper with the chain of custody form. I accept his evidence that a marker pen was routinely used to write test figures on the cover sheet and this may have leached into the following page.

[59] Mr Sullivan suggested that the reports were incomplete; however, I accept Dr Cruickshank’s evidence that they are complete.

[60] Mr Sullivan raised concerns that there were two different identification numbers on the reports and the form. I accept Dr Cruickshank’s evidence that one of the numbers is a unique bar code used to manage the sample in the PathWest information management system and the other number is the number placed on the sample and the chain of custody form by the collector.

[61] Mr Sullivan raised concern that an incorrect address for him appears on the report and that his Medicare number appears on the report. I do not consider that the inclusion of the Medicare number in any way raises issues about the integrity of the test or the report. I accept Dr Cruickshank’s evidence that the address is generated by the Department of Health’s electronic information system and it comes from matching with hospital records using a Universal Medical Reference Number. I consider that this evidence adds to the integrity of the test and the report rather than detracting from it.

[62] Mr Sullivan raised concern that a tub which contained the labelled samples did not have ID on it. I accept Dr Cruickshank’s explanation that this was not essential for the integrity of the process.

[63] Mr Sullivan raised changes that had been made to the AS/NZS 4308 and his concerns that the processes used were not consistent with those changes. I accept the evidence of Dr Cruickshank and Mr Seeber that the standards utilised were the correct current standards.

[64] I accept the evidence of Dr Cruickshank that the sample was first tested by PathWest using an immunoassay instrument. The non-negative results from this test led to further mass spectrometry tests. Those tests confirmed levels of methylamphetamine of 1412 micrograms per litre which was well above the cut off threshold of 150 micrograms per litre.

[65] Dr Cruickshank gave evidence, which I accept, that the test also revealed amphetamine, pseudoephedrine and codeine above the cut off thresholds. This was consistent with the declared prescription and other medication that Mr Sullivan was taking. I accept Dr Cruickshank’s evidence that the mass spectrometry instruments are capable of clearly distinguishing methylamphetamine from the other drugs and that there is a negligible risk of any error in the results.

[66] On 22 October 2015, as part of the lead up to the hearing of this matter, Mr Sullivan authorised independent testing by another laboratory of the sample collected on 23 July 2015. Dr Cruickshank says that he retrieved the referee sample from long-term storage and noted that the tamper evident seal was intact and released the sample to Western Diagnostics laboratory. On 23 October 2015 Western Diagnostics provided a report which confirmed that amphetamine, methylamphetamine, and pseudoephedrine were detected in the specimen using mass spectrometry. No confirmatory cut off levels apply due to the possible degradation of the specimen over time, therefore the quantitative levels are not reported. The results are consistent with the PathWest result.

[67] Mr Sullivan submitted that Westug did not have any real concerns over the drugs in his system because contrary to policy Westug allowed him to drive home after the collection of the sample on 23 July 2015. I am satisfied that Mr Sullivan told Westug that he was fit to drive and that the fact that he was allowed to drive prior to the confirmatory test by Path West does not suggest any lack of integrity in the testing process.

[68] I am satisfied that:

● The tests on Mr Sullivan’s urine collected whilst he was at work on 23 July 2015 have confirmed that he had methylamphetamine levels above the cut off threshold in accordance with AS/NZS 4308.
● The tests and the sample collection were conducted in accordance with AS/NZS4308.
● There were no issues which affected the integrity of the collection and control of the samples and the testing process and reporting.

Is the Western Diagnostics test relevant and does it raise significant doubts about the validity of the Path West tests?

[69] Mr Sullivan gave evidence that three hours after the sample was taken by Mr Seeber he went to Western Diagnostics and asked them to conduct a test on a urine sample which he provided them. The results of that test have been provided by Western Diagnostics. 9 That test showed methylamphetamine levels below the cut off threshold of 150 micrograms per litre. The level detected was 53.8 micrograms per litre.

[70] Dr Cruickshank gave detailed evidence that there is no inconsistency between the results of the Western Diagnostics test and the PathWest tests. Firstly, the results show the presence of amphetamine, pseudoephedrine, methylamphetamine, and codeine in both samples. Secondly, the PathWest results show creatine levels of 29.1 which is a measure of the concentration of urine. The Western Diagnostics test shows creatine levels of 1.41. Dr Cruickshank gave evidence that this dilution of the urine may be caused by Mr Sullivan drinking a considerable amount of water between the time of the taking of the sample under supervision and the later sample at Western Diagnostics. Dr Cruickshank said that under the Australian Standard a creatine level below 1.76 was specifically recognised as an indicator of possible dilution. Dr Cruickshank gave evidence that the difference in creatine levels between the two tests meant that it was likely that the second test was affected by dilution. 10

[71] I noted that during the hearing of the matter at the Commission Mr Sullivan consumed a very large quantity of water.

[72] I am satisfied that the lower levels of methylamphetamine in the Western Diagnostics test is due to the time lag and the dilution by water consumption. I am satisfied by the evidence of Dr Cruickshank that there is no inconsistency between the results and that the Western Diagnostics test does not raise any doubts about the validity of the Path West test results.

Do the Westug policies provide for a warning for a first strike? Is summary dismissal for a first strike consistent with Westug policies?

[73] The relevant policies and the Agreement provisions have been set out earlier. There is one additional provision upon which Westug relies and that is the note which appears at the end of Section 1.6 Disciplinary Action of the Fitness for Work Procedure:

“Nothing in this procedure affects the rights of Westug to dismiss an employee for conduct that justifies instant dismissal including misconduct, inefficiency or neglect of duty associated with the misuse of alcohol or drugs.”

[74] The Agreement Clause 12.2(c) provides that: “Failure to comply with the employee’s health and safety obligations will be deemed misconduct and may form the basis for instant dismissal”. I am satisfied that the “employee’s health and safety obligations” in this context are the obligations specified in Clause 12.2(b). The relevant obligation in this case is the “fitness for work testing requirements”. The obligation is as follows:

“comply with any fitness for work testing requirements including random testing for alcohol or prohibited substances which the Company may require an Employee to undergo as part of its zero tolerance policy with respect to drugs and alcohol” (Clause 12.2(b) of the Agreement).

[75] I am not satisfied that any significance should be attached to the description of the employer’s policy in Clause 12.2 of the Agreement as a “zero tolerance policy.” Zero tolerance does not necessarily mean “instant dismissal for any breach”. The meaning of zero tolerance depends upon the context and that context is the relevant policy. In the Handbook the “zero tolerance” aspect of the policy is described as follows “you must not be under the influence of any unlawful drugs anywhere on our premises during working hours.” However, the policy does not require dismissal for first breach. The obligation is to comply with the testing requirement which may be required as part of the employer’s zero tolerance policy.

[76] I am satisfied that Mr Sullivan complied with the obligation to comply with fitness for work testing requirements in that he submitted to the required testing and completed the necessary paperwork. Clause 12.2 has three parts. The first part is a statement of the responsibility of the employer, the second part is about the responsibility of employees and the third part is a statement that failure to comply with the obligations in the second part will be deemed misconduct. The obligation on the employee in this context is confined to the requirement to submit to testing. The obligation to “comply with any fitness for work testing requirements” in Clause 12.2 of the Agreement does not provide a basis for summary dismissal for a positive drug test.

[77] If the Agreement Clause 12.2 was mandating adherence to the Fitness for Work Procedure or the Handbook generally then different words would have been used. It is common for employers, particularly in the resources sector to seek provisions in agreements authorising and mandating participation in a drug and alcohol testing regime. The obligations or duties placed on employees under Clause 12.2 of the Agreement are significant when compared to the Award and OHS legislation and breach can be subject to penalty. In this context it would not be appropriate to go beyond the ordinary meaning of the words and strain for a more expansive reading of the Agreement.

[78] The Staff Policy and Procedure Handbook says that: “you must not be under the influence of any unlawful drugs anywhere on our premises during working hours’ (Page 25). The policy requires notification of prescription or non-prescription drugs which may “affect your fitness for work”. It also provides that “if you are under the influence of alcohol or an unlawful drug you may be immediately dismissed for serious misconduct” (Page 26).

[79] The policy does not make it clear what “under the influence means”. I am satisfied that the plain meaning of these words is affected by or impaired by. I am not satisfied that a positive outcome on a urine drug test is evidence of impairment given that it is well established that the presence of drugs in urine can arise from exposure many days previously. The plain meaning of the words is reinforced by 18.3.5 “Assessment of Fitness for Work” which is in the same section of the policy as the statement that “you must not be under the influence of any unlawful drug anywhere on our premises during working hours” and just before the statement that “if you are under the influence of alcohol or an unlawful drug you may be immediately dismissed for serious misconduct.” 18.3.5 provides that:

“Assessment for Fitness for Work

Your supervisor/manager has the responsibility of deciding, on reasonable grounds, if you are unfit for work. If your Supervisor/Manager suspects that you are under the influence of alcohol or drugs or otherwise unfit for work, then your Supervisor/Manager can send you home for the rest of the day or get you formally medically assessed by a medical practitioner. You may also be subject to disciplinary action, including possible dismissal.”

[80] The policy says that in making any decision to dismiss an employee for being under the influence of alcohol or unlawful drug the company will take into account a number of factors such as:

“ The serious and unacceptable nature of your behaviour

The risk posed to your safety and others

Any previous occasion that you have breached this policy

Your ability to demonstrate that you are taking responsibility for your own problem. And that the problem is being or will be addressed

The underlying reasons why you have used alcohol or drugs to the extent that you were unfit for work.”

[81] The policy then goes on to say that if Westug exercises discretion not to dismiss the employee they will issue a final written warning.

[82] However, Westug argue that the words of the policy should be understood in the context of the Fitness for Work Procedure. I agree with that submission because the Staff Policy and Procedure Handbook in its Introduction deals with scope and purpose. It specifically states the handbook provides a “brief general overview and guide to policies and procedures” and that it must be read in conjunction with “specific policies”. There is a specific policy which is the “Fitness for Work Procedure.”

[83] The Fitness for Work Procedure uses the expression misuse of drugs not “under the influence of drugs” which is used in the Handbook. Misuse of drugs in the Fitness for Work Procedure is clearly defined as use which could result in impairment and/or a test result which exceeds the limits prescribed in the procedure. If this broader concept is to apply, as contended by Westug rather than the ordinary meaning of “under the influence” in the Handbook then the same applies to the specific disciplinary consequences for positive test results. The disciplinary issues in the Handbook are directly linked to being under the influence of drugs whilst the disciplinary consequences in the Fitness for Work Procedure relate to misuse of drugs including the consequences of a positive test. It is the more specific and detailed requirements of the Fitness for Work Procedure which apply. 18.3.5 of the Handbook referred to earlier relates to situations where the supervisor considers an employee is under the influence or not fit for work. The Fitness for Work Procedure applies to those situations but also to where there is a positive result on a drug or alcohol test. It is the Fitness for Work Procedure which deals with positive drug tests and their consequences.

[84] The Fitness for Work Procedure is in my view unambiguous about the disciplinary consequences for a first positive drug test above the cut off limits in AS/NZS 4308. The Procedure uses the terms “will” and “shall” to describe the disciplinary outcome of a first and final written warning. This is then reinforced in the “Disciplinary Action Table”.

[85] I am not satisfied that the note concerning serious misconduct alters this situation. Considered in context this note is about misconduct, inefficiency or neglect of duty associated with the misuse of alcohol or drugs. When an employee misuses alcohol or drugs it can be accompanied by behaviour such as violence, abuse, neglect of duty, failure to follow instructions or other dangerous or inappropriate conduct.

[86] In the absence of other behaviour associated with the positive drug test which would render it serious misconduct, I am satisfied that it is not consistent with the Fitness for Work Procedure to dismiss an employee for a first offence positive result.

[87] In this case there are three matters which could amount to such associated conduct.

[88] Firstly, Mr Sullivan admitted that he has taken illicit substances in the past and to taking additional quantities of his prescription medication. Although Mr Sullivan did not accept this characterisation of his behaviour, I am satisfied that Mr Sullivan was misusing his prescription medication. I am not satisfied that an admission of past use of illicit substances is a reason for a finding of serious misconduct. It is not sufficiently related to conduct at work. I am however satisfied that misuse of prescription medication which is also being used whilst at work is a relevant consideration. That might lead to a reasonable apprehension that misuse could be repeated in a manner that affected work. Taking into account all aspects of Mr Sullivan’s behaviour I am satisfied that it is appropriate to conclude that there is a significant risk that such behaviour would be repeated in a manner affecting work.

[89] Secondly, Mr Minchin says Mr Sullivan made a statement which demonstrates that he was knowingly working whilst unfit at the show cause meeting on 30 July 2015. In response to the allegation that Mr Sullivan had operated as a deckhand with illicit substances in his system Mr Sullivan said words to the effect that:

“I felt unwell and lay down on the floor of the deckhouse for a while and kept out of Ray’s way because it’s not a good look. I didn’t intentionally go to work with drugs in my system.” 11

[90] He also, at a different point, said that he had taken cold and flu medication on 23 July 2015 because he was feeling unwell on that day. He also said at the 30 July 2015 meeting that he was not denying the results of the drug test. 12

[91] For the reasons discussed earlier I accept that Mr Minchin’s contemporaneous notes of the 30 July 2015 meeting are reasonably accurate. I was not satisfied that the implications of this statement were clearly put to Mr Sullivan during the hearing. I therefore provided the parties with the opportunity to make further submissions in respect to that point after the hearing. I have considered the written submissions received on 2^nd and 3rd December 2015. (Note: in his written submissions Mr Sullivan raised some matters which were not relevant to the matter and provided some further documents. I have not had regard to any new documents.) I am satisfied that this statement made by Mr Sullivan at the 30 July show cause meeting is an admission that he was knowingly working whilst not fit for duty.

[92] Thirdly, given that I have determined that Mr Sullivan did have methylamphetamine in his urine at levels almost ten times the cut off limit under AS/NZS 4308, I do not accept Mr Sullivan’s denial that he took methylamphetamine in the days immediately prior to resuming duty. I am satisfied that the test establishes that Mr Sullivan took methylamphetamine in the days immediately prior to resuming duty. I have a high degree of confidence in this finding given the detailed consideration of the evidence concerning the integrity of the sample collection and its testing. This is not a finding based upon inexact or speculative evidence. It is of course possible that he did not take the drug deliberately. I was not satisfied that the parties had the opportunity in proceedings to make submission on the implications which I should draw from this. I therefore provided the parties with the opportunity to provide supplementary written submissions on this point. I have had regard to the written submissions received on the 2nd and 3rd of December 2015.

[93] Mr Sullivan submits that it is dangerous to draw conclusions from quantitative levels shown from a urine test. This is because individual metabolic rates and other factors mean that the impact of drugs will vary and the concentration of drugs in urine is not a direct reflection of the amount of exposure. He reiterated that a urine test does not test if a person is “under the influence” of a drug. Mr Sullivan also submitted that because he was already taking dexamphetamine he would not necessarily have been aware of a small exposure to methylamphetamine. I accept these submissions; however, although the actual amount required will vary depending upon the individual and the circumstances, I am satisfied that significant exposure to methylamphetamine would be required to produce ten times the cut off limit in urine four days after the exposure.

[94] I consider it likely that Mr Sullivan would have been significantly affected at the time of taking the drug given the level of methylamphetamine required to sustain a high concentration in his urine four days later. He would either have known that he took the drug or that he had been given the drug without his knowledge. It is not an event of which he could have simply not noticed given the well-known significant impact of methylamphetamine.

[95] Having considered the evidence and the submissions, I am satisfied that Mr Sullivan did not disclose all relevant information when asked whether or not he had taken methylamphetamine in the period prior to working on 23 July 2015.

[96] The finding I have made is consistent with the finding relied upon by Westug in the show cause letter and the termination letter that:

“On 23 July 2015 you operated in the role of Deckhand with illicit substances in your system, causing an unacceptable risk to the health and wellbeing of yourself, your crew and Westug assets.”

Did Mr Sullivan make the “rabbit” remark?

[97] Mr Sullivan says that a female visitor to the port authority who came on board the tug made a sexual harassment claim against him in April 2015. Mr Sullivan accepts that he asked the woman if she had a rabbit and then when she said no he said “but every woman has a rabbit”. Mr Sullivan was referring to a vibrator and the woman understood that to be the case. Mr Sullivan says that he was engaging in light hearted banter with the woman and that she was not phased by his comments.

[98] Mr Sullivan was not the subject of disciplinary action following the complaint and it was not one of the reasons for dismissal but Westug say that it is relevant to its submission that reinstatement is not appropriate in the event that I find the dismissal is unfair.

Did Mr Sullivan unreasonably fail to move from the company accommodation in a timely manner following the dismissal?

[99] Initially Mr Sullivan was only given a couple of days to vacate his company accommodation following the dismissal. He raised two concerns with Westug. Firstly, he said that he had accumulated a lot of possessions and needed more time to move them. Secondly, he said that it took up to seven days to arrange to transfer the registration of his prescription amphetamine medication to another pharmacy. Mr Sullivan was granted an extension until 7 August and then until 12 August. Mr Serle then visited the premises on 13 August and Mr Sullivan was still there. He was told to leave by the next morning. Mr Serle attended again on 14 August but Mr Sullivan had still not left the premises. Mr Sullivan finally vacated the accommodation on 20 August 2015.

Did Mr Sullivan demonstrate a cavalier attitude to Westug’s drug policy such that Westug could have no confidence that he would respect and adhere to the policy in the future?

[100] Westug refers to submissions made by Mr Sullivan that random drug and alcohol tests are inappropriate where safety is not critical and that “what I do on my break is not the business of my employer” in support of their argument that Mr Sullivan has a cavalier attitude to Westug’s drug policy and to the safety critical nature of his job. I reject this submission. Mr Sullivan as an unrepresented litigant referred to a number of documents and research findings some of which were not directly relevant to his case. His reference to findings that random testing is inappropriate where safety is not critical cannot fairly be read as a submission that his job was not safety critical. I found no evidence that Mr Sullivan had a cavalier attitude to safety. The allegation was not put to him in cross examination. The object of drug testing is not to regulate what employees do in their own time. Mr Sullivan’s submission in that regard is quite appropriate. An employer policy is only reasonable if it is directed at ensuring that employees are in a fit state to perform work in a safety critical situation. That is, it is directed at fitness for duty and otherwise has nothing to do with what employees do in their own time.

[101] Westug submit that to not dismiss Mr Sullivan for a first breach of the testing policy would be to send a message to other employees that misuse of drugs that may affect health and safety is acceptable and would be condoning breaches of the Westug policies. This submission is clearly unsustainable given that the policy itself provides for the option of a first and final warning for a first breach of the testing policy.

The reasons for dismissal.

[102] It is important to say a little more about the reasons for dismissal. In the summary of issues it is noted that:

● The serious misconduct was that on 23 July 2015 he tested positive to methylamphetamine in a random drug and alcohol test.
● Westug argues that “the drug test is adequate evidence that Mr Sullivan knowingly attended work whilst affected by drugs.”
● Westug argues that “breach of reasonable drug and alcohol policies is a valid reason for dismissal having regard to the hazardous environment in which Mr Sullivan and Westug operates.”

[103] The letter to Mr Sullivan of 28 July 2015 asking him to attend a show cause meeting says that the meeting is to discuss “concerns that have been raised as a result of the positive drug and alcohol test that was conducted on 23 July 2015.” The key concerns were described as follows:

“1. You have attended work with illicit substances in your system; this constitutes a serious breach of the Westug Fitness for Work Procedure.
2. On 23 July 2015 you operated in the role of Deckhand with illicit substances in your system, causing an unacceptable risk to the health and well-being of yourself, your crew and Westug assets.
3. You failed to declare that you had taken codeine prior to attending for your scheduled shift on 23 July 2015; this constitutes a breach of the Westug Fitness for Work Procedure.”

[104] The company accepted that codeine had been advised and this was not further pursued. The termination letter of 4 August 2015 refers to the “two key concerns relating to this methylamphetamine usage”. The letter says that:

“Your responses to these concerns were taken into consideration, however, it was ultimately decided that your actions amount to a serious breach of the North West Crewing Australia Pty Ltd Enterprise Agreement 2013, namely the duty to comply with all fitness for work requirements pertaining to prohibited substances pursuant to Clause 12.2 of the North West Crewing Pty Ltd Enterprise Agreement 2013.”

[105] The termination letter says that the termination is on the grounds of serious misconduct. The letter says that they could terminate without notice but they have exercised discretion to pay notice in accordance with the Agreement.

[106] I am satisfied that the letter effectively confirms that the first two allegations in the show cause letter were substantiated and they form the basis for the conclusion that there was a failure to comply with the fitness for work requirements.

[107] Although I have found that Clause 12.2 of the Agreement does not require adherence to all fitness to work policy requirements but only the testing requirements, I am satisfied that the termination was also on the basis that the two allegations which were found to be substantiated were in breach of the fitness for work policy requirements generally and that breach constituted serious misconduct.

[108] In their submissions Westug says that the valid reason was “his serious breach of the Enterprise Agreement, the Handbook and Fitness for Work Procedure in attending for work affected by drugs on 23 July 2015.”

[109] During the hearing Westug agreed that a positive urine drug test result does not establish that an employee is impaired by drugs. I am satisfied that the word affected or the words used in the Handbook “under the influence” when considered in context have the same meaning as impaired.

[110] Westug correctly argues that it is not necessary to establish impairment but rather the breach of the employer’s reasonable drug and alcohol policy can be a valid reason for dismissal. Westug also point to the fact that the test level was high – almost ten times the cut off level. Depending upon the circumstances a risk to health and safety can be established if an employee works with drugs or alcohol in their system as established by a urine test. If that test establishes that there was use in the period prior to attending work, depending upon the circumstances, this can establish that there is a risk that fitness may be impaired.

[111] The valid reason argued for by the employer can be described as follows:

“The serious misconduct was that on 23 July 2015 Mr Sullivan attended for work and then tested positive to methylamphetamine in a random drug and alcohol test. This positive test is contrary to the Westug Fitness for Work Procedure. This Procedure is a reasonable policy and Mr Sullivan was aware of the Procedure and that breach would lead to disciplinary consequences. Breach of reasonable drug and alcohol policies is a valid reason for dismissal having regard to the hazardous environment in which Mr Sullivan and Westug operates. The positive test and other evidence also establishes that on 23 July 2015 Mr Sullivan operated in the role of Deckhand with illicit substances in his system, causing an unacceptable risk to health and safety of Mr Sullivan and others.”

Was there a valid reason to dismiss Mr Sullivan related to his conduct, including its effect on the safety and welfare of other employees?

[112] I have found that:

● Mr Sullivan worked in a safety critical environment.
● Serious legal and business obligations apply to Westug in respect to OHS and there are serious consequences for breaches.
● Mr Sullivan was aware that he was subject to random drug tests and that a positive drug test would result in a disciplinary outcome.
● Mr Sullivan had been provided with the relevant policies.
● Westug took reasonable steps to ensure that Mr Sullivan was aware through both publicity and training that he should not work when under the influence of drugs and that it was his responsibility not to work when he was unfit to do so.

[113] The Fitness for Work Procedure defines misuse of drugs as impairment of the ability to work safely and/or a positive test result which exceeds the AS/NZS 4308 cut off. 13

[114] I accept the observation of the Full Bench in Owen Sharp v BCS Infrastructure Support Pty Ltd 14 that in the absence of a reliable test for impairment it is difficult for the employer to properly assess whether an employee is impaired when they return a positive drug test. “For that reason, employer policies which provide for disciplinary action, including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety critical work, be adjudged to be lawful and reasonable.”15 I am satisfied that this is also applicable to methylamphetamine. In some respects it may have greater applicability given that methylamphetamine does not just affect fitness when the person is high but when the person is coming down the drowsiness and other factors can affect fitness. It is not disputed that Mr Sullivan’s work was safety critical work. Of course tests other than urine tests may be a more reliable indicator of impairment.

[115] For the reasons discussed earlier I reject Mr Sullivan’s submissions which challenge the validity and integrity of the Path West urine tests.

[116] I have found that based upon Westug’s own policy a first positive test result for drugs results in a disciplinary response of first and final written warning. I am satisfied that this is a reasonable policy because:

● The test does not measure impairment or work under the influence of drugs.
● It is reasonable that employees should be warned after a first positive test that their behaviour is unacceptable and be given an opportunity to seek rehabilitation, counselling or to change their behaviour.
● It is not possible to eliminate the risk that an employee may not be fully fit at work. An employer cannot expect to have a workforce which consists only of model workers. Workers from time to time may be stressed, tired, affected by illness or disability or by prior consumption of alcohol, drugs or prescription medicines. A decision to give an employee a second chance will generally not be an unacceptable risk in this context.

[117] Of course there may be other safety critical situations where a policy which provides that zero tolerance means dismissal for first positive test may be found to be reasonable.

[118] I am not satisfied that a first positive test in itself constitutes a valid reason for dismissal in circumstances where Westug’s own reasonable policy provides that a first and final warning is the appropriate sanction.

[119] However, I am satisfied that Mr Sullivan admitted to conduct in respect to his prescription medicine at the show cause meeting on 30 July 2015 which raises concern as to fitness for work given that the prescription medicine is also taken whilst at work.

[120] I am also satisfied that Mr Sullivan admitted to knowingly working whilst unfit on 23 July 2015. I am satisfied that this was established by his statement that “I felt unwell and lay down on the floor of the deckhouse for a while and kept out of Ray’s way because it’s not a good look.”

[121] Finally, given that I have determined that Mr Sullivan did have methylamphetamine in his urine at levels almost ten times the cut off limit under AS/NZS 4308, I do not accept Mr Sullivan’s denial that he took methylamphetamine in the days immediately prior to resuming duty. For the reasons discussed earlier I am satisfied that he would either have known that he took the drug or that he had been given the drug without his knowledge. I am satisfied that Mr Sullivan did not disclose all relevant information when asked whether or not he had taken methylamphetamine in the period prior to working on 23 July 2015.

[122] Mr Sullivan did argue with the validity of the collection method at the show cause meeting. However, I am satisfied that at the termination meeting Westug made it clear that, having considered what Mr Sullivan had said, it was satisfied that the test result was valid and that Mr Sullivan was affected by methylamphetamine. Mr Sullivan in this situation had the opportunity to disclose all relevant information at that point and did not do so.

[123] These three factors when considered in the context of the positive drug test constitute a valid reason for dismissal.

Was the dismissal unreasonable or unfair because of the limitations placed upon the MUA representative during the show cause meetings on 30 July and 3 August 2015?

[124] I accept that the MUA representatives present on 30 July and 3 August 2015 were told by Westug that they could not advocate for Mr Sullivan or answer questions for Mr Sullivan. Mr Minchin and Mr Serle gave evidence in the proceedings that the MUA representatives were told that they could ask questions of clarification and could seek an adjournment to consult with Mr Sullivan privately. 16 Mr Sullivan does not agree that these statements were made. He says that the MUA was not able to assist in any way prior to the termination decision being announced.17 Mr Minchin and Mr Serle agreed that on 3 August 2015 the MUA representative did make representations that the decision to terminate was harsh having regard to the Fitness for Work Procedure but those representations were made after the decision to terminate had been announced.18

[125] The notes produced by Mr Minchin refer to the fact that the role of the support person was discussed at both meetings. It also records the MUA’s objection to the limitations at the 3 August meeting. However, the notes do not provide any detail of what was said about the role of the support person. Mr Serle does not say anything about the support person issue in his account of the 30 July 2015 meeting in his written statement for these proceedings. In respect to the 3 August 2015 meeting his statement 19 refers to the limitation that the MUA representative was not to act as an advocate and could not answer questions for Mr Sullivan. He says that the MUA was told that they could seek clarification. Mr Minchin in his notes of the 3 August meeting does not refer to the ability for the MUA to seek clarification but only to the limitation on not acting as an advocate. In his account of the 30 July meeting he says that he told the MUA representative that he was not to act as an advocate.

[126] I do not accept Mr Serle’s evidence that the MUA representatives were told that they could seek clarification or ask for an adjournment. I am satisfied that Mr Minchin told the MUA representatives that they could not act as an advocate or answer questions for Mr Sullivan. I preferred the evidence of Mr Sullivan on this point to the evidence of Mr Minchin and Mr Serle in the proceedings.

[127] The Full Bench in Victorian Association for the Teaching of English Inc v Debra De Laps 20 made the following observation:

“[50] We think it is apparent from the Commissioner’s reasons for decision that his conclusion that the approach adopted by VATE in its communications with Ms de Laps between 10 and 13 December 2012 was not designed to accord her procedural fairness was fundamental to his decision. In particular, to his decision that Ms de Laps was dismissed in that while she resigned, she was forced to do so because of conduct, or a course of conduct, engaged in by her employer.

[51] In our view his conclusion that the approach of VATE between 10 and 13 December 2012 was not designed to afford Ms de Laps procedural fairness was not open to him. We have come to this view for the following reasons.

[52] Under the FW Act, in considering whether a dismissal was harsh, unjust or unreasonable, the Commission is required to take into account “any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal” (Section 387(d) of the Act) Given that legislative provision and in the absence of any other obligation to allow an advocate, we do not think a refusal by VATE to allow Ms de Laps an advocate at the meeting on 17 December 2012 can be regarded as constituting an element of procedural unfairness.”

[128] This decision is not authority for the proposition that refusal to allow an advocate is not a consideration under Section 387(h). The comments of the Full Bench relate to the finding of the Commissioner at first instance that the employee had been constructively dismissed due to procedural unfairness including denial of an advocate.

[129] It will generally be reasonable to require that a support person not answer questions for the employee. However, in some circumstances limitations on the capacity for a support person to advocate could lead to significant unfairness which is relevant under Section 387(h). However, in the circumstances of this case I am satisfied that the allegations were reasonably simple and clear and that Mr Sullivan had an opportunity to respond to them. The conduct of the meetings was not unreasonably aggressive or unfair. Mr Sullivan is a reasonably capable communicator and does not suffer from language difficulties. The limitations placed on Mr Sullivan’s representatives produced some unfairness but did not produce significant unfairness.

Was the decision to terminate harsh or disproportionate given the Westug policy that employees shall be given a warning for a first positive drug test?

[130] I would have come to this conclusion if it were not for:

● The risks to the health and safety of others associated with Mr Sullivan’s admission that he misused his prescription medication when not at work.
● My finding that Mr Sullivan was knowingly unfit whilst at work on 23 July 2015 and this was contrary to clear and well publicised policy that employees are not to attend work when unfit and are required to advise their supervisor if unfit.

[131] I also consider that Mr Sullivan has unreasonably sought to avoid taking responsibility for the positive methylamphetamine test. I consider it inherently unlikely that a single instance of accidental exposure four days earlier would result in a positive test almost ten times the cut off limit in AS/ANZ 4308 and that Mr Sullivan would remain unaware that he had been exposed. I have found that Mr Sullivan did not disclose all relevant information when asked whether or not he had taken methylamphetamine in the period prior to working on 23 July 2015. Mr Sullivan has maintained this approach as illustrated by the extraordinary lengths he has gone to in seeking to discredit the test outcome.

[132] Mr Sullivan submitted that he was treated inconsistently to other employees. Mr Sullivan did not provide any evidence to support the claim of inconsistency. Westug did provide evidence that in respect to the three employees who had tested positive to methylamphetamine, two had resigned their employment and Mr Sullivan was the third employee. Westug gave evidence that the only other positive test related to cannabis. Having considered the evidence of the differing circumstances I am not satisfied that there is any basis to conclude that there has been inconsistent treatment.

[133] I am satisfied that there was a valid reason for the termination and that the termination was not harsh or a disproportionate response and that the procedure followed was fair. The restrictions placed on the MUA representatives did not result in significant unfairness. I am satisfied that there are no other relevant factors. I found earlier and it is not disputed that Sections 387(b), (c), (d), (f) and (g) of the Act are neutral factors in this case and that Section 387(e) is not relevant because the dismissal related to conduct not performance.

[134] Having considered all the matters in specified in Section 387 of the Act I am not satisfied that the dismissal was harsh, unjust or unfair.

[135] The application is therefore dismissed and an order to this effect is published.

COMMISSIONER

Appearances:

Mr M Sullivan represented himself.

Ms R Dawson and Ms G Caterina appeared for the Respondent.

Hearing details:

2015

Perth

November 23

Final written submissions:

Respondent’s final submissions received 3 December 2015.

1 Exhibit W4, Attachment MM4 to the Statement of Mr Minchin.

2 Exhibit W5, Statement of Mr Serle at paras 22 to 27.

3 PN339 to PN342.

4 PN344.

5 PN313 to PN314 and PN325.

6 Exhibit W3, Attachment DS2 to Statement of Mr Seeber.

7 Exhibit A1.

8 Exhibit A2.

9 Exhibit W1.

10 PN578.

11 Exhibit W4, Statement of Mr Minchin at para 74.

12 Exhibit W4, Statement of Mr Minchin at para 67. This is also in Mr Serle’s statement.

13 Exhibit W4, Attachment MM3, page 22 of the Fitness for Work Procedure.

14 [2015] FWCFB 1033.

15 [2015] FWCFB 1033 at [24].

16 PN1298 and PN1389.

17 PN359 and PN362.

18 PN1309.

19 Exhibit W5, Statement of Mr Serle at paras 101 and 102.

20 [2014] FWCFB 613 at [50]-[52].

Printed by authority of the Commonwealth Government Printer

Mr Michael Sullivan v North West Crewing Pty Ltd T/A Westug

[2016] FWCFB 1068

14 DECEMBER 2015