Mr Shane Andrew McCarthy v Woolstar Pty Ltd - [2014] FWC 1186

[2014] FWC 1186

FAIR WORK COMMISSION

DECISION

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

Mr Shane Andrew McCarthy
v
Woolstar Pty Ltd
(U2013/2163)

COMMISSIONER CAMBRIDGE

SYDNEY, 18 FEBRUARY 2014

Application for unfair dismissal remedy - positive result of random workplace drug test - confirmatory laboratory test result - breach of employer’s drug and alcohol policy - serious misconduct - further evidence of misconduct - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 3 July 2013. The application was made by Shane Andrew McCarthy (the applicant) and the respondent employer is Woolstar Pty Ltd (the employer).

[2] The application indicated that the date the applicant’s dismissal took effect was 3 July 2013. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 12, 13 November and 11 and 12 December 2013.

[4] At the Hearing, Mr S Mueller, and Mr N Von Richthofen, from the National Union of Workers (the NUW) appeared for the applicant. The applicant and two other witnesses were called to provide evidence in support of the claim. The employer was represented by Mr S Jauncey and Mr T Reaburn, solicitors from Henry Davis York. Mr Jauncey called a total of five witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a man who was 38 years of age at the time of his dismissal, 3 July 2013. The applicant commenced with the employer as a casual Storeperson in October of 2001 and he was appointed to a permanent Storeperson position in 2002. The applicant worked at the Woolworths Sydney National Distribution Centre (SNDC) located at Yennora. The applicant was an elected site delegate for the NUW.

[6] On 24 June 2013, the applicant commenced work at about 5:15 am, driving a counterbalance forklift. At about 6 am the applicant went to a smoking area to have a cigarette. After the applicant had attended to the induction process for some new employees, he was advised that he was one of various employees who had been selected to undergo a random on-site drug and alcohol test.

[7] The applicant offered to be the first person tested in the drug and alcohol testing program on that day. The applicant gave an oral fluid sample which gave a presumptive positive reading for the presence of delta-9-tetrahydrocannabinol (THC), the most active compound found in cannabis or marijuana. As the applicant had tested positive for THC, he was required to provide further oral fluid samples, referred to as A and B samples, which were sent to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FWC 1186
Decision Date: 18 FEBRUARY 2014

CaseChat Overview and Summary

Mr Shane Andrew McCarthy brought proceedings against his employer, Woolstar Pty Ltd, seeking a remedy for unfair dismissal. McCarthy was dismissed following a positive result from a random workplace drug test. The employer's drug and alcohol policy required a confirmatory laboratory test, which also returned a positive result. The employer found that McCarthy had breached the policy and dismissed him on the grounds of serious misconduct. McCarthy contended that the dismissal was harsh, unjust or unreasonable and sought an unfair dismissal remedy.

The primary legal issue before the court was whether the dismissal was justified and therefore not unfair. The court needed to consider whether the employer had a valid reason for the dismissal, whether the dismissal process was procedurally fair, and whether the dismissal was not harsh, unjust or unreasonable in the circumstances. The court was also required to assess whether the employer's drug and alcohol policy was lawful and whether it was applied consistently and fairly to all employees.

The court held that the employer had a valid reason for dismissing McCarthy, as the confirmatory laboratory test result confirmed a breach of the drug and alcohol policy. The court found that the employer's policy was lawful and was applied consistently and fairly to all employees. The court further held that the dismissal was not harsh, unjust or unreasonable, as McCarthy had been provided with an opportunity to explain the positive drug test result, and the employer had considered his explanation. The court also found that the employer had further evidence of misconduct, which supported the decision to dismiss McCarthy. Consequently, the court dismissed McCarthy's application for an unfair dismissal remedy.

No orders were made as the application was dismissed.

Orders