Mr Shane Jeffrey Ley v Macmahon Contractors Pty Ltd
[2011] FWA 694
•7 FEBRUARY 2011
[2011] FWA 694 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Shane Jeffrey Ley
v
Macmahon Contractors Pty Ltd
(U2010/13761)
COMMISSIONER CLOGHAN | PERTH, 7 FEBRUARY 2011 |
Unfair dismissal remedy.
[1] On 1 November 2010, Mr Shane Ley (“the Applicant”) made application to Fair Work Australia (FWA) alleging that he had been unfairly dismissed from his employment with Macmahon Contractors Pty Ltd (“the Employer”).
[2] Mr Ley was dismissed from his employment on 25 October 2010.
[3] Mr Ley has made the application pursuant to s.394 of the Fair Work Act 2009 (“the Act”).
[4] Mr Ley’s application was unable to be resolved at conciliation and subsequently referred to me for arbitration.
[5] On 25 October 2010, Mr Ley was advised by Mr Tim Fuller, Registered Manager, Macmahon Contractors Pty Ltd, Orebody 18 Project:
“You have breached the Macmahon Drug and Alcohol Policy (“the Policy”) for the second time within a 12 month period and as a result your employment with Macmahon is terminated with immediate effect with payment in lieu of notice, as per the provisions of your contract of employment.”
[6] On 29 November 2010, I issued Directions in relation to a hearing into the application on 20 January 2011.
[7] Also on 29 November 2010, FWA received an application Form F52 seeking an Order requiring Production of Documents to the Tribunal.
[8] In his application on 1 November 2010, Mr Ley states:
“Macmahon have breached their own D&A testing procedure I had to blow a total of six times in 3 different machines. One of these machines said I passed the test on 2 occasions.”
[9] The Tribunal heard Mr Ley’s Form F52 application seeking an order for the production of documents on 2 December 2010. At the conclusion of the hearing, and by agreement of the parties, an Order was issued requiring the Employer to provide FWA and Mr Ley, no later than 16 December 2010, the following:
(a) the specifications (make, model and date of manufacture) of the machines and/or equipment used in the testing of the Applicant on 24 October 2010;
(b) the test results obtained on 24 October 2010 in all tests of the Applicant from the LE alcolizer and HH1 machine or any other machine or equipment and any urine test (if any); and
(c) the full names and addresses for service of all personnel that were present and relevant to the testing of the Applicant on 24 October 2010.
[10] Further, on 30 December 2010, Mr Ley sought an order requiring the following to attend the hearing on 20 January 2011:
- Mr Rupert Collins, Senior HR Adviser;
- Mr Mark Ferguson, Mine Manager;
- Mr Tim Fuller, Registered Manager;
- Ms Theresa Hammond, Emergency Services Coordinator and Safety Adviser and Registered Nurse, Orebody 18;
- Mr Alan Roberts, Mining Superintendent, Orebody 18; and
- Ms Clare Stone, Emergency Services Officer.
[11] On 10 January 2011, FWA issued an Order for the above persons to attend FWA at the time, date and place of the hearing into Mr Ley’s application alleging unfair dismissal.
[12] At the hearing on 20 January 2011, Mr Ley gave evidence in support of his application and was represented by his partner, Ms Miller.
[13] The Employer was represented by Mr Cameron, Australian Mines and Metals Association. The following gave evidence for the Employer:
- Mr Rupert Collins
- Mr Mark Ferguson
- Ms Theresa Hammond
- Mr Alan Roberts
- Ms Clare Stone.
[14] To assist proceedings, both parties provided documentation to the Tribunal which was incorporated into proceedings. Having received this material, heard oral evidence and submissions, I reserved my Decision. In reaching this Decision, I have considered and given appropriate weight to the evidence and material provided to the Tribunal.
BACKGROUND
[15] Mr Ley commenced employment with the Employer on 4 April 2006 as a Trainee Dump Truck Operator. Mr Ley was subsequently promoted and, at the time of his termination of employment, was a Leading Hand.
[16] On 4 July 2006, Mr Ley entered into an Australian Workplace Agreement (AWA) with the Employer; a copy which was provided to the Tribunal 1.
[17] The AWA provides at Clause 20 Alcohol and Drugs, the following:
(a) It is a condition of employment that the Employee complies with the Company Drug and Alcohol Procedure - which includes the requirement to submit to random or “as required” testing.
(b) A copy of the Drug and Alcohol Procedure will be provided to the Employee on engagement and non compliance with the Policy may result in termination of employment (my emphasis).
[18] On 6 March 2008, Mr Ley underwent a Site Specific Induction Assessment (“Site Assessment”) for Orebody 18. While no explanation was given regarding why an induction assessment was carried out nearly two (2) years after commencing employment, there was no dispute between the parties that it was undertaken; a copy was provided to the Tribunal 2.
[19] The Site Assessment demonstrated that Mr Ley had correctly answered Questions 5 and 6 which revealed the following:
- “Fitness for work” or Blood Alcohol Concentration (BAC) Testing is carried out on every shift (my emphasis); and
- the site limit for BAC testing is 0.00 or zero (my emphasis).
[20] On 29 March 2010, while Leading Hand, Mr Ley was unfit for work due to a positive BAC reading. Mr Ley was provided with a “Drug and Alcohol Warning Notice” (“Warning”) which was provided to the Tribunal 3. Three aspects of the Warning are relevant to these proceedings:
- “Macmahon hereby gives you formal notice that you have breached the Company’s Drug and Alcohol Policy and Procedure. Particulars of this breach are set out below. Please note that the Company views any breach of its Drug and Alcohol Policy and Procedure as a serious offence” (my emphasis); and
- ...the Company now warns you that recurrence may result in your immediate dismissal without further warning”(my emphasis); and
- “I [employee] acknowledge receipt of this warning and I have reviewed a copy of the Macmahon Drug and Alcohol Policy and Procedure (“the Procedure”). I understand that further disciplinary action may be taken against me for this or any future breaches of the policy and procedure in the future” (my emphasis).
[21] Mr Ley advised that he signed the warning acknowledging that he had reviewed the Drug and Alcohol Procedure 4.
[22] The defined Employer limit for alcohol measured in the Procedure is 0.00% or zero.
[23] Under the sub-heading “Second Occasion” in the Procedure, it states:
“Employees who test positive a second time within a 12 month period are likely to have their employment terminated in accordance with the First and Final Warning issued at the first offence.”
[24] On 24 October 2010, Mr Ley was breath tested for alcohol as part of a site wide testing operation. Mr Ley returned a positive test for alcohol of 0.039% per 100ml at 6:32am and 0.029% per 100ml at 7:00am. The Blood Alcohol Concentration (BAC) Analysis was carried out by Ms Hammond and Ms Stone. The analysis was carried out on HH1 “Alcolizer” serial number 00385669. Mr Ley signed the form on which these results were set out. There is nothing on the form to say why Mr Ley, or for that matter any employee, is signing the Blood Alcohol Concentration Analysis -- presumably, it is to verify the analysis data and other information provided on the form 5.
[25] It should be noted that the Employer provided a certificate of service and calibration of the HH1 Alcolizer in compliance with Australian Standards. The certificate is dated 24 May 2010.
[26] Mr Ley was stood down for the remainder of 24 October 2010.
[27] On 25 October 2010, Mr Ley was interviewed by Mr Ferguson, Mine Manager.
[28] Mr Ferguson gave evidence that Mr Ley informed him that on the previous day he was helping with the Bloody Slow Cup (which is a play on the Bledisloe Cup). The Bloody Slow Cup is a game of rugby played between the Australians and New Zealanders in Newman. While helping, Mr Ley was drinking and had no dinner or breakfast following the game 6.
[29] Mr Ferguson advised Mr Ley that he was still stood down and would be contacted later that day.
[30] Following his discussion with Mr Ley, Mr Ferguson concluded that termination of employment was appropriate. Subsequently, the Employer’s Human Resources Department drafted a termination letter to Mr Ley to be signed by Mr Fuller. Mr Ferguson provided a signed termination letter to Mr Ley at approximately 5:00pm on 25 October 2010. The material parts of the termination letter are as follows:
“Dear Shane
...
On the 24th October 2010 you provided another sample for testing under the Macmahon Drug and Alcohol Policy and Procedure following a site-wide drug and alcohol test. The results revealed a level of alcohol in excess of what is prescribed in the Drug and Alcohol Policy.
Your behaviour is considered inappropriate and inconsistent with the standard of conduct required of you as a Macmahon employee.
You have breached the Macmahon Drug and Alcohol Policy for a second time within a 12 month period and as a result your employment with Macmahon is terminated with immediate effect with payment in lieu of notice, as per the provisions of your contract of employment.
...
Yours sincerely
Tim Fuller...”
THE NATURE OF THE APPLICANT’S CLAIMS
[31] Much of this background which led to Mr Ley’s termination of employment is not disputed between the parties. However, Mr Ley disputes that the Drug and Alcohol Testing Procedure was followed correctly by the Employer. He contends that as a result of this non-compliance with the Procedure, his termination of employment was unfair. Secondly, subsequent to the first reading of 0.039% per 100ml, he states that he was retested on a LE3 or 4.5 Alcolizer, which recorded a negative result and that should have ended the testing consistent with the Procedure. Before examining these issues contended by Mr Ley, it is necessary to set out the relevant statutory provisions.
RELEVANT LEGISLATIVE FRAMEWORK
- Section 385 of the Act relevantly provides:
“385-What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(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.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
- Section 387 of the Act sets out the criteria for considering whether a dismissal was harsh, unjust or unreasonable as follows:
“387-Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
THE FACTS ACCORDING TO THE APPLICANT CONCERNING ALCOHOL TESTING
[32] On the morning of 24 October 2010, Mr Ley returned a positive alcohol result of 0.039% per 100ml on an Alcolizer HH1 breathalyser 7.
[33] On returning a positive result, he was asked to relocate to another room for further testing 8.
[34] At approximately 6:37am, Mr Ley blew into a LE3 or 4.5 breathalyser and returned a “pass” or negative result 9.
[35] A further 15 minutes later, Mr Ley again blew into a LE3 or 4.5 breathalyser and again returned a negative result.
[36] Ms Stone advised Ms Hammond, who had carried out the first test, that Mr Ley had returned a negative result as set out in paragraph [35]. Ms Hammond organised for a further test on the original HH1 breathalyser.
[37] Both Ms Hammond and Ms Stone, and Mr Ley’s Supervisor, Mr Roberts, witnessed the further test on the HH1 breathalyser. The breathalyser returned a reading of 0.029% per 100ml 10.
[38] Mr Ley contends that subsequent to the fourth test, he was again tested on a LE breathalyser which, on this occasion, returned a positive alcohol content. Finally, he undertook a third test on a HH1 breathalyser which provided a reading of 0.029% per 100ml.
[39] In summary, Mr Ley asserts he undertook six tests on three different machines. In all cases the HH1 breathalyser produced readings to indicate the presence of alcohol in Mr Ley’s blood system. With respect to the LE breathalyser, it produced negative results on two occasions and positive to the presence of alcohol on one occasion 11.
THE FACTS ACCORDING TO THE EMPLOYER CONCERNING ALCOHOL TESTING
[40] There is no dispute between the parties that Mr Ley tested positive to a HH1 breathalyser at 6:32am on 24 October 2010. The parties agree that the analysis was 0.039% per 100 ml.
[41] Ms Stone conducted a second test approximately 20 minutes after the first test on a LE breathalyser. The result was negative to the presence of alcohol.
[42] Ms Stone reported the negative result to Ms Hammond and, as a result, a further test was carried out on a HH1 breathalyser at 7:00am which recorded a reading of 0.029% per 100ml.
[43] As a result of a second positive reading on a HH1 breathalyser, Mr Ley requested, and was granted, a further test on a LE breathalyser. On this occasion, the LE breathalyser returned a positive reading of alcohol in Mr Ley’s blood system.
WHAT IS THE DIFFERENCE BETWEEN THE APPLICANT’S AND THE EMPLOYER’S STATEMENT OF FACTS CONCERNING ALCOHOL TESTING?
[44] Essentially, the difference between the parties concerning alcohol testing on 24 October 2010 is that Mr Ley contends that he underwent two additional tests. Firstly, an additional test on a LE breathalyser which returned a negative result, and secondly, an additional test on a HH1 breathalyser which returned the same positive result as that obtained at 7:00am - 0.029% per 100ml.
WHAT IS THE DIFFERENCE BETWEEN THE HH1 AND LE BREATHALYSER MACHINES?
[45] From a purely layperson’s perspective and evidence given in the proceedings, a LE breathalyser was described as a breathalyser used for “passive” testing on site. By “passive”, it is meant a test providing a reading of whether alcohol is detected or not. A negative result means that no alcohol has been detected. Conversely, a positive result means that alcohol has been detected but an actual blood alcohol content reading is not provided. For a blood alcohol reading to be provided, it is necessary to modify the breathalyser and have a “blow piece” attached 12.
[46] A HH1 breathalyser provides an immediate and actual blood alcohol reading.
WHY A POSITIVE BLOOD ALCOHOL TEST RESULT OF 0.039% PER 100ml CANNOT BE FOLLOWED 20 MINUTES LATER BY A NEGATIVE RESULT
[47] Ms Hammond, who is a Registered Nurse, gave evidence that it was highly unlikely that a person’s blood alcohol reading could go from 0.039% per 100ml to zero in 20 minutes. Depending upon “weight and bodies”, readings will reduce or dissipate by approximately 0.02% each hour 13.
[48] When confronted with a negative result 20 minutes after the first test utilising the LE breathalyser, Ms Hammond knew that “something was wrong” 14. Consequently, under her supervision and witnessed by Ms Stone and Mr Roberts, Mr Ley was re-tested on the original HH1 breathalyser which produced a reading of 0.029% per 100ml which is consistent with average dissipation rates of alcohol15.
[49] While Ms Hammond provided an explanation of how employees on site could avoid a positive reading with the LE breathalyser, there was no evidence or suggestion, that Mr Ley adopted such a practice on 24 October 2010. In Ms Hammond’s words, “I found a fault. I rectified it” -- the “fault” being the inconsistency and improbability of a zero reading 20 minutes after a 0.039% per 100ml reading 16.
[50] Further, to overcome “false negatives” in the future, Ms Hammond put out a “changed management form” on how the LE breathalyser tests were to be conducted henceforth.
DEFICIENCIES IN THE DRUG AND ALCOHOL TESTING PROCEDURE AND ALLEGED BREACHES OF PROCEDURE
[51] The Drug and Alcohol Testing Procedure was last revised on 28 November 2009. The procedure applies to all employees at the Orebody 18 mine site.
[52] Relevant to these proceedings is sub-clause 5.5, Breath Alcohol Screening, which provides:
- If a reading greater than 0.00% BAC is received the first result shall be entered to the positive BAC record sheet and a re-test shall be conducted 20 minutes following the initial test, but no longer than 30 minutes. If the result is 0.000 BAC no further action required.
- If the re-test is greater than 0.00% BAC the result is entered on to the positive BAC record sheet and is signed by witness and tester.
- Employees who test positive in accordance with company procedure will be required to stand down and disciplinary action applies for confirmed positive results as per 6.8.
[53] Under sub-clause 5.9, Second Occasion, “employees who test positive a second time within a 12 month period are likely to have their employment terminated in accordance with the First and Final Warning issued at the first offence”.
[54] The Applicant asserted, and the Employer conceded, that there is no sub-clause 6.8.
[55] Further, although not relevant to these proceedings, there are other errors relating to sub-clauses which do not exist.
[56] Finally, I note that the Procedure refers to “First and Final Warning” in relation to the first “offence” in both narrative and a flow chart. From the material provided to the Tribunal, there is no use of the term “final warning”, however, it can be inferred from the Warning Notice which states, “...the Company now warns you that any recurrence may result in your immediate dismissal without further warning” 17.
[57] Mr Cameron, the Employer’s representative asserts that the erroneous reference to sub-clause 6.8 is unfortunately a common occurrence in the editing of documents where insufficient attention has been given to internal renumbering.
[58] The Applicant contends that, as there is no sub-clause 6.8, the Employer “breached” its own procedure 18. This breach, together with other “varying and conflicting results” rendered the dismissal of Mr Ley as harsh and unreasonable19.
[59] Previously, I have been critical of employers who, while having a policy or procedure for disciplinary matters, consider them optional when dealing with particular cases ([2010] FWA 6227). However, in this instance, on balance, I am of the view that erroneous numbering is not fatal to the Employer’s actions or illustrative of a harsh and unreasonable termination of employment. The reference to sub-clause 6.8 is a simple mistake and, notwithstanding this mistake, the integrity of the Procedure was maintained.
[60] The second breach of the Procedure contended by the Applicant is that, having undergone a second breath test on the LE breathalyser, which was negative, in accordance with the Procedure, “no further action [is] required”. Accordingly, the testing should have ceased at that point.
[61] As I have already set out under the heading of “Facts”, further testing did occur. Accordingly, the Applicant contends that this was a further breach of the Employer’s Procedure, and consequently, the dismissal was harsh and unreasonable.
[62] For the purpose of this Decision, the second alleged breach of the Procedure is the one which took place on the LE breathalyser 20 minutes after the positive reading on the HH1 breathalyser in the presence of Ms Stone and Mr Roberts; I am not referring to the Applicant’s contention that he was tested approximately five (5) minutes after the initial HH1 test.
[63] Ms Stone conceded in her evidence that:
“I put the wrong application in, so basically there are two applications on an LE machine and normally, as the guys or people come through they can do what's called a passive test. If the passive test fails, then you have to do a non-passive, but when I undertook the second test I did it as a passive when it should have been done as a non-passive, so I actually - it was the wrong application because it couldn't give a reading.” 20
[64] In addition to Ms Stone conceding that she had carried out the second test incorrectly, Mr Ley acknowledged, in his evidence, that the LE breathalyser used did not provide a percentage reading 21, any re-test should provide a percentage reading22 and it was appropriate that a second test, or re-test, be carried out on the HH1 breathalyser23.
[65] In summary, while the Applicant alleges that there has been a breach of the Procedure, to his credit he answered plainly and honestly to the reality of what occurred, and the necessity and appropriateness, of returning to the original HH1 breathalyser for further testing.
[66] Further, he agreed, in evidence, that based on the average rate of dissipation of alcohol in the blood system, a reading of zero after 20 minutes must be wrong 24.
[67] Finally, although not asserted by the Employer, the Applicant gave evidence, knowing it weakened his application, that he undertook a third test on a different HH1 breathalyser which gave a reading of 0.029% per 100 ml 25; the evidence is neatly summarised in the following:
“If you've had two tests with two machines that both blow numbers and they are giving an identical reading, doesn't that very strongly suggest that indeed your second reading was 0.029 and that is totally accurate? You can't come to any other conclusion, surely?---That's correct, yes.” 26
[68] While Mr Cameron, representative for the Employer, describes this evidence as, “[Mr Ley] damns himself out of his own mouth” 27, I prefer to consider it as his recollection of events on a “busy day”.
[69] In conclusion, while there was a departure from the established Procedure, I am satisfied that Ms Hammond took the issue “in hand”, when it became obvious from a physiological perspective, that the second re-test was wrong and further testing was appropriate and necessary. This is not a situation where failure to follow the Procedure to the “letter”, should triumph over the substance of what occurred -- and that simply is Mr Ley had tested for alcohol in his blood system.
BREATHALYSER TEST RESULTS
[70] By agreement of the parties, FWA ordered, on 2 December 2010, that the Employer provide to the Applicant, among other documents:
(a) ...
(b) the test results obtained on 24 October 2010 in all tests of the Applicant from the LE alcolizer and HH1 machine or any other machine or equipment and any urine test (if any); and
(c) ...
[71] While the Employer provided results of the LE breathalyser, it was conceded that the relevant date was missing. Further, it was uncertain which breathalyser the results provided related to, and no readings were able to be downloaded from the HH1 breathalyser. The Employer could provide no explanation for the erratic downloading of data from the LE breathalyser.
[72] While this situation was unsatisfactory from the Applicant’s perspective, there is sufficient and verifiable results to demonstrate that Mr Ley had alcohol in his blood system at the time testing occurred.
CONCLUSION AND FINDINGS
[73] The approach which I intend to adopt in considering whether Mr Ley’s dismissal was harsh, unjust or unreasonable is the criteria in s.387 of the Act. In seriatim, they are in shorten form as follows:
(a) Valid reason?
[74] From the outset of his employment, Mr Ley was aware from his Australian Workplace Agreement (AWA) that he was required to comply with all policies and procedures established to achieve a safe and healthy work environment. Further, it was an explicit condition of employment that he comply with the Employer’s Drug and Alcohol Procedure including random, or as required, testing.
[75] It is noticeable that Clause 20 Alcohol and Drugs is the only policy type clause which specifically includes a provision which states that non-compliance may result in termination of employment.
[76] Mr Ley’s AWA, at sub-clause 33(a) Fitness for Work, uses direct and incisive language when it provides:
(a) The Company insists that the Employee attends for work in a fit state that will enable them to perform their duties without danger to themselves or others and the Employee agrees to comply with the relevant Company Policy (my emphasis).
[77] Mr Ley did not assert that the Employer did not take alcohol, drugs, fitness for work and health and safety seriously; it was plainly evident from the commencement of his employment.
[78] However, to quote that piece of wisdom “to err is human” and that is exactly what Mr Ley did on 29 March 2010 when he was declared unfit for work as a result of a positive reading for alcohol in his blood system while at work. In its Notice to Mr Ley, the Employer again uses direct and simple language when it includes the following in the second paragraph:
“...the Company now warns you that any recurrence may result in your immediate dismissal without further warning”.
[79] To use that colloquial expression, “the writing was on the wall”. The “wall” was not going to fall down and Mr Ley could either take responsibility for the message which was clear -- don’t turn up for work with alcohol in your blood.
[80] To be fair to Mr Ley, he did not submit, argue or contest that he was unaware of the alcohol policy. Simply put, Mr Ley was aware that he had been directed by the Employer explicitly in his AWA and its Procedure, to carry out his work in a way which prevented or reduced harm to health and safety in the workplace. That direction was lawful and reasonable.
[81] In summary, the indisputable facts are that Mr Ley, on 24 October 2010, for the second time, was at work with a BAC reading of 0.039% per 100ml at 6:32am and 0.029% per 100 ml at 7:00am. The readings were in direct contravention of the Employer’s Drug and Alcohol Procedure. Accordingly, the Employer had a valid reason for terminating his employment as such readings related to his capacity and conduct in carrying out his work at the mine site.
(b) Was Mr Ley was notified of the reason for his termination of employment?
[82] It is clear on the evidence and the material provided to the Tribunal, that Mr Ley was aware and notified of the reason for his termination of employment.
(c) Was Mr Ley was given an opportunity to respond to the reason for his termination of employment?
[83] Mr Ley responded to Mr Ferguson that the circumstances which led him to “blowing” 0.039% per 100 ml related to helping with the Bloody Slow Cup and a lack of eating 28.
[84] After Mr Ferguson discussed with Mr Ley the Policy of termination after two positive alcohol results in 12 months, his uncontested evidence was that Mr Ley responded, “I know that” 29.
[85] At his final meeting with Mr Ley, Mr Ferguson gave evidence that to his best recollection Mr Ley stated, “I’m just a bloody idiot. I should have known better, but I really didn’t think I’d blow over” 30. Mr Ley did not challenge these words attributed to him.
[86] I am satisfied, especially in view of the fact that these tests are carried out every day on site, that Mr Ley was aware of the Employer’s policy regarding two positive results for alcohol in 12 months and that his response, although honest, was not excusable, of the Employer’s decision to terminate his employment.
(d) Support person?
[87] The issue of a support person being present in any discussion relating to his dismissal was not raised by Mr Ley as an issue in his termination of employment.
(e) Unsatisfactory performance?
[88] Mr Ley’s work performance was not an issue in his termination of employment. Mr Ley’s record of moving from Trainee to Leading Hand speaks for itself.
(f) Employer’s size and Human Resource management expertise?
[89] Macmahon Contractors Pty Ltd is a large employer of approximately 2,000 employees. The Employer has a discrete Human Resources Department and access to the Australian Mines and Metals Association.
[90] From a Human Resources perspective, I am satisfied that the persons who carried out the tests were qualified to carry out the tasks, the breathalysers were serviced and calibrated and, where the LE machine had been used incorrectly, that practice was identified and responded to both in the short and long term.
[91] While greater attention could be paid to what is meant by “counselling” and the existence of “compelling crisis” when an employee “blows numbers” for a second time, I am satisfied that the overall process adopted to terminate Mr Ley’s employment was not harsh, or unreasonable.
CONCLUSION TO APPLICATION
[92] I am satisfied that Mr Ley was not unfairly dismissed pursuant to s.394 of the Act. In these circumstances, the application will be dismissed and an Order issued accordingly.
COMMISSIONER
Appearances:
Ms L Miller, for the Applicant.
Mr A Cameron, Australian Mines & Metals Association for the Respondent.
Hearing details:
2010:
Perth
20 January
1 Exhibit R1
2 Exhibit R1
3 Exhibit R1
4 PN 167
5 Exhibit A3
6 Exhibit R6
7 PN 57
8 PN 57
9 PN 58
10 PN 58
11 Exhibit A3
12 PN 527
13 PN 523 and Exhibit R3
14 PN 622
15 Exhibit R3
16 PN 634
17 Exhibit R1
18 Exhibit A1
19 Exhibit A1
20 PN 664
21 PN 173
22 PN 172 and PN 179
23 PN 182
24 PN 192 and PN 194
25 PN 200
26 PN 210
27 PN 355
28 Exhibit R6 and PN 818
29 Exhibit R6
30 Exhibit R6
Printed by authority of the Commonwealth Government Printer
<Price code C, PR506423>
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