Paul Mallia v Toll Transport Pty Ltd T/A Toll

[2018] FWC 1713

[2018] FWC 1713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Mallia
v
Toll Transport Pty Ltd T/A Toll
(U2017/13187)

COMMISSIONER BISSETT MELBOURNE, 20 APRIL 2018

Application for an unfair dismissal remedy – alleged breach of the drug and alcohol policy – - high risk environment - valid reason – application dismissed.

[1] Mr Paul Mallia has made an application to the Fair Work Commission (Commission) pursuant to s.394 of the Fair Work Act 2009 (FW Act) seeking relief from unfair dismissal. Mr Mallia worked for Toll Transport Pty Ltd T/A Toll (Toll) as a Truck Driver although at the time of his dismissal he was working on data entry as he recovered from a shoulder injury that prevented him from driving. Mr Mallia commenced working with Toll on 25 August 2008. Mr Mallia worked at the Port Melbourne site in the Express Parcels business unit. It is not contested that it is a high traffic, high risk site with trucks, forklifts and pallet movers moving around the site.

[2] Mr Mallia’s employment was terminated on 22 November 2017 for breaching the Toll Group Drugs and Alcohol Policy (Policy).

Evidence

Mr Paul Mallia

[3] Prior to giving his evidence Mr Mallia requested that the Commission disregard all statements he had previously made, orally and in writing, with respect to having taken methamphetamine on the Saturday prior to his drug test on 30 October 2017. He says that he was advised that he needed to explain the test result for methamphetamine and it was better to give an explanation for the result than not. He said he did not take methamphetamine on the Saturday night prior to the random drug test at work.

[4] Mr Mallia agreed that the Port Melbourne freight facility where he worked is a high traffic, high risk facility. It has high volumes of truck traffic, pallet movers and forklifts.

[5] On Monday 30 October 2017 Mr Mallia took a taxi to work as part of the arrangements associated with his injured shoulder. He was requested to undergo a random drug and alcohol test which showed a positive result for opiates. He was then stood down whilst samples were sent to the laboratory for confirmation testing. On the following Thursday he received a telephone call from Mr Travis McKenzie, Branch Manager, who advised him that there was an irregular test result and he needed to attend a meeting the next day. At that meeting Mr Mallia was advised that the samples sent for laboratory testing had tested positive for opiates and methamphetamine.

[6] Mr Mallia said he was shocked by the results as the “swab” was clear (for methamphetamines) and, given that at the time he was notified of the result four days had passed since he was tested, there was nothing he could do.

[7] Mr Mallia said he questioned the testing procedure of Ms Josie Ducret, the Medvet Collector. He said that when he needed water Ms Ducret “took a cup that I took into the room which I picked up in the smoke area and hadn’t washed it or had a coffee from it.” 1 He said he also thought “there might have been a muck up with the sample.”2 Mr Malia said he tried to cross-reference the duplicate Medvet Oral Fluid Drug Testing Form3 (Testing Form) given to him by Ms Ducret with the Racing Analytical Drug Confirmation Certificate4 (Results Form) Kit and seal number but “they were not filled in [and] I had no way to check the sample [was] mine”5. This, he said, raised concerns that the chain of custody had been broken.

[8] Mr Mallia said that the Testing Form given to him was incomplete in that the Tube A, Tube B and Kit seal numbers were not recorded. His evidence was that this failure meant that the chain of custody for his sample was not compliant with Australian Standard AS 4760-2006 6 (Australian Standard). In such circumstances he considered his samples should not have been accepted for testing.

[9] Mr Mallia was shown photographs of an open and sealed collection tube. He agreed that the initials on the opened collection tube were his 7 and that the signature on (a second) Form F2 (filed by Mr Mallia), dated 5 February 2018,8 was also his. He did not accept that the signature on the sealed collection tube was necessarily his.

[10] Mr Mallia said that non-prescribed drugs he was taking at the time of the random drug test (Vicks inhaler for nasal congestion and Zantac for reflux 9) may cause a positive drug screening result when, in fact, no drugs had been used.

[11] Mr Mallia said the Toll Priority Port Melbourne Drug & Alcohol Procedure 10 (Port Melbourne Procedure) is the relevant Toll policy. The Port Melbourne Procedure states that, on return of a positive sample, an employee will be excluded from the workplace until such time as they pass a second test confirming fitness for work. Should the employee fail the second test, the employee will be asked to show cause as to why their employment should not be terminated. Further, he said the Port Melbourne Procedure provides for access to medical and counselling services, none of which were provided to him.

[12] Mr Mallia said he cannot recall when he was given the Port Melbourne Procedure but knows it was not when he commenced employment but sometime later. He agreed that the reference to “AIRC” in clause 1.2.3 suggested the Port Melbourne Procedure was in existence prior to 2009 when Fair Work Australia came into existence.

[13] Mr Mallia said in cross-examination that he had seen the Drugs and Alcohol Standard (Australia) 11 (Standard) but, when shown the document, changed his evidence and said he had not seen it. Mr Mallia said he requested that his B-sample be sent for testing but this did not occur.

[14] Mr Mallia said that he was aware of at least two employees of Toll who tested positive for drugs but were given access to rehabilitation and did not have their employment terminated. He agreed however that he had no direct knowledge of this but that it was “common knowledge”.

[15] Mr Mallia said his dismissal was harsh and unreasonable.

Ms Emelia Cvetkovic

[16] Ms Cvetkovic, Human Resources Business Partner, gave evidence that at all times (including when on light duties) Mr Mallia’s employment was covered by the Toll Group - TWU Enterprise Agreement 2013-2017 12 (Agreement), the Toll Group Drugs and Alcohol Policy13 (Policy) and Toll Standard.

[17] Ms Cvetkovic said that she is not aware of the document Mr Mallia put forward as the Port Melbourne Procedure. She said she also enquired of her colleagues and no-one was aware of the document.

[18] Ms Cvetkovic said that:

•  On 30 October 2017 Mr Mallia was subject to a random drug and alcohol test. The test was conducted on-site by Medvet, Toll’s on-site testing provider. The test was a saliva test.

•  Mr Mallia returned a “non-negative” result. Further saliva samples were taken from Mr Mallia for laboratory testing off-site. Mr Mallia was given a copy of the Testing Form.

•  As a result of the non-negative test result and in accordance with the provisions in the Agreement 14 and Standard15 Mr Mallia was stood down with pay pending the return of the off-site test result (laboratory confirmation test).

[19] On 2 November 2017 the Results Form for Mr Mallia was received by Toll. The results showed the following drug levels in Mr Mallia’s sample:

Codeine confirmed positive by LCMS at 60µg/L.

Methamphetamine confirmed positive by LCMS at 233µg/L.

Opiate result consistent with medication stated. 16

[20] At the time of the test Mr Mallia had informed his employer that he was taking Panadeine Forte for his shoulder injury.

[21] The acceptable level of methamphetamines is 25µg/L.

[22] On 3 November 2017 Ms Cvetkovic, Mr Chris Caruana, PUD Manager, and Mr McKenzie met with Mr Mallia, his support person (Peter Banbury from the Transport Workers’ Union) and Mr Mallia’s wife (Ms Sharyn Mallia). Mr McKenzie sought an explanation from Mr Mallia as to the methamphetamine reading. Mr Mallia replied that he had taken some over the weekend and his wife commented that it was his father’s and brother’s birthdays recently, both had passed away and Mr Mallia was finding it difficult dealing with that situation.

[23] Mr Mallia was advised that the level of methamphetamine returned in his test result suggested he had taken the substance one to two hours prior to the testing. Mr Mallia rejected that suggestion.

[24] Following the meeting Toll determined to issue Mr Mallia with a show cause letter.

[25] On 6 November 2017 Mr Mallia requested to meet with Mr McKenzie, Mr Caruana and Ms Cvetkovic as he had concerns with the chain of custody for his samples. At that meeting Mr Banbury said that Mr Mallia was questioning whether the “chain of custody” had been broken as his copy of the Testing Form did not have the tube seal numbers or Kit box seal number written on to it. Mr Mallia said that the chain of custody had been broken and that there was nothing on the Testing Form to prove that the results on the Results Form belonged to him.

[26] Ms Cvetkovic copied Mr Malia’s Testing Form and noted that it did not have the Tube A, Tube B or Kit box seal numbers recorded on it. Ms Cvetkovic undertook to make enquiries and get back to Mr Mallia. Pending this, Mr Mallia would remain stood down but would have his pay reinstated.

[27] Ms Cvetkovic referred the chain of custody matter to Ms Allyson Boys, General Manager – Health Safety and Environment. On 10 November 2017 Ms Cvetkovic received an email from Ms Boys forwarding an email she had received from Dr John Edwards, Senior Toxicologist at Medvet. In that email Ms Josie Ducret, the tester who took Mr Mallia’s samples, said that she recalled taking the sample, that Mr Mallia (“the donor”) was impatient and was rushing her and that after she gave him his copy of the Testing Form she realised she had not completed some of the details on the Testing Form.

[28] On 13 November 2017 Ms Cvetkovic received from Ms Boys photographs of collection tubes containing Mr Mallia’s saliva samples with his initials on them. On the basis of the photographs, Ms Cvetkovic said she was satisfied that the samples sent to the laboratory (and for which results were given) belonged to Mr Mallia.

[29] On 13 November 2017 Ms Cvetkovic said she was forwarded a further email by Ms Boys which had come from Dr Edwards. In that email Dr Edwards said that Mr Mallia had contacted Medvet and alleged that the glass of water given to him by Ms Ducret had been spiked. Dr Edwards outlined in that email why, if that had occurred, it would not affect the test results. Ms Cvetkovic took that email to indicate that “on the balance of probabilities, Josie [Ducret] did not spike Paul’s glass of water.” 17

[30] Ms Cvetkovic said that she, in conjunction with Mr McKenzie and Mr Caruana, concluded that the chain of custody had not been broken and that Mr Mallia had been dishonest in implying the saliva samples were not his and that his water had been spiked.

[31] On 3 November 2017 Mr Mallia was sent a show cause letter. 18 That letter said, in part:

Your positive test results for methamphetamine is in breach of the Policy. The Policy states that a worker must not be under the influence of any illicit drugs whilst they are on any Toll site, operating any Toll equipment of which performing any duties on behalf of Toll. Toll Group’s Code of Practice also requires employees not to be “under the influence of illicit, prescribed or non-prescribed drugs or alcohol... Your confirmatory reading from methamphetamine indicates a potential risk to yourself and others in the workplace

Accordingly I am now giving consideration to taking disciplinary action against you in accordance with the Policy. You need to be aware that disciplinary action may include termination of your employment.

[32] Pending the resolution of the matter Mr Mallia was suspended without pay.

[33] On 16 November 2017, at the show cause meeting, Mr Mallia provided a written response to the show cause letter. 19 In that response he said he was shocked by the test results and that was why he had raised the compliance issue and the spiked water issue. Mr Mallia outlined his on-going issues with depression associated with the sudden death of his brother 18 months earlier and the death of his father two months earlier. Mr Mallia expressed his regret at what had happened and asked that his employment not be terminated.

[34] On 17 November 2017 Ms Cvetkovic and Mr McKenzie met with Mr Andrew Eastick, General Manager Operations Vic/Tas for Toll. As a result of the information provided to Mr Eastick he recommended that, as the testing result was a clear breach of the Policy, Mr Mallia’s employment be terminated.

[35] Mr Mallia’s employment was terminated on 22 November 2017. He was provided with five weeks’ pay in lieu of notice.

[36] Ms Cvetkovic said that, in her time with Toll and the matters she has been involved in, a consequence of testing positive to illicit drugs had resulted in termination of employment of the employees concerned. She was not aware of any employees who had tested positive to drugs and been offered rehabilitation as suggested by Mr Mallia.

[37] Ms Cvetkovic agreed that, on the basis of his pay slips 20, Mr Mallia was on leave between 17 and 23 April 2017 such that the record of the toolbox meeting21 Mr Mallia is said to have attended where the Policy was discussed on “20/4” could not have been a 2017 meeting. She said that she did recall that there were records of both the 2016 and 2017 toolbox meetings but she could not recall which year the minutes of the toolbox meeting referred to.

Ms Josie Ducret

[38] Ms Josie Ducret is employed by Medvet as a Collector.

[39] On 30 October 2017 Ms Ducret conducted on-site oral fluid drug and alcohol testing at Toll. Mr Mallia was one of the people she had to collect samples from. She said that Mr Mallia was impatient and she felt he was rushing her. She said she does not recall getting Mr Mallia a glass of water but if she did she would have rinsed the glass first and then half-filled it.

[40] Ms Ducret agreed that she forgot to fill in the Testing Form correctly by not recording the I.D. number of the collection tubes prior to giving a copy of the Testing Form to Mr Mallia. She realised this on the day so completed the information on her copy of the Testing Form prior to the samples being sent to the laboratory. 22

[41] On 9 November 2017 Ms Ducret said she sent her manager, Ms Lainnie Thornton, an email detailing what had happened. 23 The reference to “the donor” in that email was a reference to Mr Mallia.

Dr John Edwards

[42] Dr John Edwards is the Senior Toxicologist at Medvet. His role is to provide “advice and support to clients regarding workplace drug testing.” Dr Edwards is a well-credentialed and widely published toxicologist.

[43] Dr Edwards said that whilst Ms Ducret only indicated a non-negative result for opiates (and not methamphetamines) on the Testing Form it is “possible to return a negative for methamphetamine in first oral fluid test and later return a positive result…in the laboratory test.” He said this could be the result of masking drugs or it could be because the Collector forgot to record the test result in the documentation.

[44] Dr Edwards said that a non-negative result for opiates (as was Mr Mallia’s screening test) requires laboratory confirmation analysis. That laboratory confirmation testing could result in a number of outcomes including the presence of another drug not detected in the on-site test above the reporting threshold.

[45] Dr Edwards said that the level of methamphetamine found in Mr Mallia’s test result of 233µg/L suggested recent (in the hours prior to testing) consumption of methamphetamine. This is because methamphetamine rapidly converts to amphetamine in the body and the absence of amphetamine above reporting thresholds suggests there “had been insufficient time for the methamphetamine to have been converted.”

[46] Dr Edwards says that the results with respect to methamphetamine could not have been caused by Mr Mallia taking other medications. This, he says, is because the “[c]onfirmation analysis uses specific and selective chromatographic and mass spectral analysis. This is an absolute positive identification and quantitation of methamphetamine.” 24

[47] Dr Edwards said that the chain of custody was not broken as Mr Mallia had initialled all specimen seals on the collection tubes.

[48] Dr Edwards said that Mr Mallia misunderstood the Australian Standard with respect to the “chain of custody” but in any event Medvet has three different ways of confirming samples (in-built redundancies). Doctor Edwards said that he requested the testing laboratory (Racing Analytical Services Ltd (Racing Analytical)) take photographs of the collection tubes containing Mr Mallia’s samples. He forwarded to Toll the photographs of the sealed collection tube 25 (which had not been tested) together with the collection tube with the broken seal (which contained the tested sample). Dr Edwards identified the two collection tubes as belonging to the same donor as they both had the same initials and date of donation and both had the same “control I.D number”. The control I.D number is the same as the “Kit number” on the Results Form. Further, he said that the barcode affixed to the Testing Form (in the top left hand corner) given to Mr Mallia is the same as the “specimen no.” on the Results Form. This all indicates that the samples tested are those taken from Mr Mallia by Ms Ducret on 30 October 2017.

[49] Dr Edwards also said that the box ticked on the Testing Form with respect to drugs for which further investigation is required does not restrict what drugs might be found and reported on in confirmation testing. In this respect he says that Mr Mallia misunderstands the Australian Standard with respect to “reporting”.

Submissions

[50] Mr Mallia submitted that the discrepancies in the chain of custody, as outlined in the Australia Standard, with respect to his samples were such that the samples should never have been tested. He submitted that a break in the chain of custody is fatal to the testing regime. He submitted that it is of concern that Ms Ducret was not aware of the Australian Standard in relation to the chain of custody of samples. This meant that Toll had no basis on which to dismiss him from his employment. Further, Mr Mallia said that it is suspicious that only opiates were detected during the on-site test conducted by Ms Ducret and reported on the Testing Form yet methamphetamines, not mentioned on the Testing Form, were detected by Racing Analytical. Mr Mallia suggested that this raised further doubt about the security and chain of custody of the samples.

[51] Mr Mallia also submitted that the documents relied on by him positively show that the medications he was taking for a variety of ailments could result in a positive test result for methamphetamine even though he had not taken the drug.

[52] Alternatively, Mr Mallia submitted that if he had tested positive for drugs he should have been offered counselling and rehabilitation in accordance with the Port Melbourne Procedure he relies on.

[53] Mr Mallia submitted that I should take no notice of earlier statements he made that he had taken methamphetamine on the Saturday prior to the testing. He said that he made these statements because he was told by his support person that he needed to provide an explanation for the methamphetamine test result.

[54] Toll said that Mr Mallia has consistently changed his version of events such that I should find his evidence unreliable. Toll submitted that Mr Mallia told management in meetings held with him following his positive reading that he had used methamphetamine on the Saturday prior to undergoing the random drug and alcohol test and that he included this information in written statements and submissions made to the Commission prior to the hearing of his application. At the time of giving evidence Mr Mallia withdrew his statements with respect to having taken methamphetamine on the Saturday prior to the testing. Toll submitted that Mr Mallia was either not truthful in his interviews with management or he was not being truthful at the hearing and this does cast doubt on his credibility.

[55] Toll also suggested that it was convenient, and perhaps contrived, that Mr Mallia printed off information about the effect of Zantac on 7 January 2018 and obtained a letter from his doctor setting out his medications the following day. In any event, Toll notes that the “reports” Mr Mallia relied on was not medical advice and was in relation to urine testing where Mr Mallia undertook saliva testing.

[56] Toll said that I can and should accept the evidence of Ms Ducret that her failure to fill in the appropriate sections of the Testing Form was an oversight and that she did complete the Testing Form that day prior to sending the samples to the laboratory. Further, Toll said I can rely on the evidence of Dr Edwards with respect to the built-in redundancies on the Testing Form and the integrity of the chain of custody.

[57] Toll submitted that Mr Mallia tested 10 times the permissible level of methamphetamine. It said there is no question that it was Mr Mallia’s sample, he signed the collection tube tag and the chain of custody was not broken.

[58] Mr Mallia breached the Agreement, the Policy and the Standard. On this, Toll submitted that Mr Mallia had again sought to distort the factual material before the Commission. It submitted that Mr Mallia agreed that he was aware of the Standard until he saw the “Consequences Table” which forms part of the Standard. When he saw this he changed his evidence and said he had not seen the Standard before. Further, he sought to rely on a version of the Policy that is not used by Toll and he failed to put all of the relevant provisions from the Agreement before the Commission that specify rehabilitation as an option, not a right.

[59] In addition, Toll submitted that Mr Mallia sought to rely on standards that are not Australian standards for drug and alcohol testing and even in that respect failed to put the totality of the document (so that it could be identified) before the Commission. This indicates that Mr Mallia has not been honest in the material placed before the Commission.

[60] Toll also submitted that it has an obligation not just to have a robust policy with respect to drugs and alcohol but to enforce that policy. Toll submitted that it has an obligation to the health and safety of its own employees and to other road users and the community to ensure that its drivers do not create a risk to others.

[61] Toll submitted that it had a valid reason to dismiss Mr Mallia, that he was afforded procedural fairness and the dismissal was not harsh, unjust or unreasonable.

Assessment of the evidence

[62] Mr Mallia made a submission that the Commission should ignore statements he made during the investigation and in his written witness statement where he conceded that he took methamphetamines on the Saturday prior to the random drug test. Mr Mallia said that he made these statements at the urging of his support person from the TWU who suggested he needed some reason as to why there was methamphetamine in his system. Mr Mallia said he was told that having a plausible reason would be better than denying he had taken the drug.

[63] I find the submissions and pleas of Mr Mallia on this point as convenient but not convincing. What he has asked that I do is ignore the constant reason he had given for the methamphetamine result. Mr Mallia did not call the TWU organiser he said gave him this advice to give evidence on this point. Whilst I accept Mr Mallia removed these references from his written witness statement prior to its adoption by him as his evidence, there is no question that he admitted this in the meeting with Toll. What he is asking me to do is ignore what he agreed he said.

[64] I accept that Mr Mallia was not represented in proceedings. However, the withdrawal of a concession relied on by him, particularly in the investigation with Toll, without supporting evidence from the person he said gave him the advice, can only be seen as self-serving. For this reason I have not ignored the concession he made during the investigation that he took methamphetamine on the Saturday prior to the testing. Mr Mallia was either lying when he gave this information to Toll or he is not telling the truth before the Commission. This raises serious questions as to the credibility of his evidence overall.

[65] I prefer the evidence of Dr Edwards to that of Mr Mallia with respect to the operation of the Australian Standard, matters associated with drug testing and the effects of other medications on testing results. Dr Edward’s has extensive experience in this area and there are no grounds to suggest Mr Mallia’s limited knowledge should be given precedent over Dr Edward’s expertise.

[66] For these reasons, where there is a conflict in evidence between Mr Mallia and Dr Edwards, I have accepted the evidence of Dr Edwards. Where there is a conflict in the evidence of Mr Mallia and Ms Cvetkovic or Ms Ducret I have preferred the evidence of Ms Cvetkovic or Ms Ducret to Mr Mallia.

Findings of fact

[67] Mr Mallia’s case rests on findings with respect to:

•  The chain of custody of his saliva samples.

•  Whether laboratory testing can go beyond the initial indications on the Testing Form.

•  Whether other drugs in his system distorted the test result.

•  The relevant Policy at Toll.

•  Whether Toll was required to offer rehabilitation.

[68] I have therefore given consideration to these matters.

Chain of custody

[69] The Australian Standard AS 4760-2006 (Procedures for specimen collection and the detection and quantitation of drugs in oral fluid) establishes a procedure to ensure the integrity and identity of collected specimens. Medvet material suggests that it adheres to this standard and I am satisfied that it does so. This should not be taken to mean that I consider Medvet’s processes to be infallible.

[70] Clause 2.4 of the Australian Standard relevantly states that, should confirmatory laboratory testing be required a second sample (including reference sample) should be collected without delay. The Collector is required to securely place labels on the containers and seal them with tamper-evident seals initialled by the donor.

[71] The Collector is then required to ensure that a “chain-of-custody form” is completed with any initial results recorded on that form. The Collector is required to enter into the permanent record system all information identifying the specimen collected.

[72] The Australian Standard has a sample chain of custody form but does not mandate any particular form.

[73] I am satisfied, on the basis of the evidence of Dr Edwards, Ms Ducret and the photographs of the sealed collection tube and the collection tube with a broken seal and the Testing Form as given to Mr Mallia, that the chain of custody with respect to Mr Mallia’s A-sample was maintained. Whilst the failure of Ms Ducret to complete all areas of the Testing Form prior to providing the copy to Mr Mallia is unfortunate I am satisfied that the collection tubes that arrived for testing at Racing Analytical 26 are the collection tubes that Mr Mallia initialled. I have reached this conclusion because the barcode on the Testing Form in Mr Mallia’s possession is the same as the “Specimen No:” on the Results Form and the control I.D number on the collection tubes aligns with the “Kit number” on the Results Form. This provides the necessary link from the Testing Form to the collection tubes to the Results Form. Further, I am satisfied that the initials on both collection tubes are those of Mr Mallia. I find his suggestion that the initials on the sealed collection tube may not be his because he “normally has a loop” in his signature to be unconvincing and, like some other aspects of his evidence, convenient.

[74] There is no basis to conclude that the A-sample had been subject to any tampering anywhere in the system. Further, the report from Racing Analytical indicates that the collection tubes were received with the seals intact.

[75] I am therefore satisfied that the A-sample tested by Racing Analytical is the sample provided by Mr Mallia and that the chain of custody for the sample was properly maintained.

Can the laboratory testing screen for drugs beyond that identified for further testing on the Testing Form?

[76] Mr Mallia claimed that the laboratory testing cannot go beyond the drug groups identified on the Testing From for further investigation. To do so, he says, is contrary to the Australian Standard. In his case the Testing Form indicated further investigation of opiates (OPI) but not methamphetamine.

[77] Again, there is nothing in the Australian Standard reporting requirements that suggests this is the case. If Mr Mallia was correct, any drugs successfully masked at the initial test but discovered in the more rigorous laboratory testing could not be acted upon. This is a counter intuitive approach to a drug testing regime which is designed to ensure that an employee is not working in a situation where there is a legitimate concern of impairment or as to a breach of the relevant Policy.

[78] I accept the evidence of Dr Edwards that laboratory testing may detect drugs otherwise masked (deliberately or otherwise) in the on-site screening process.

[79] Mr Mallia repeatedly suggested that the Testing Form indicated which drugs were only to be tested for in the laboratory testing. This is not the case and the Testing Form cannot be read in this way. Again, if it was and a masking agent was detected but it was not known what drug group it was masking, no further testing could be carried out.

[80] For these reasons, I do not accept Mr Mallia’s submissions. I am satisfied that the testing carried out in the laboratory by Testing Analytical was not barred in any way.

Did other drugs in Mr Mallia’s system distort the test results?

[81] I do not consider the material relied on by Mr Mallia with respect to the effect of over the counter medications on drug screening results is conclusive. The study on Factors Affecting Methamphetamine and Opiates Drug Testing 27 is not of any assistance in this matter. The document does not detail the results of a study but rather sets out the parameters of a study to be undertaken including what is intended to be measured. It does not support the conclusion Mr Mallia seeks that I draw.

[82] I am also not convinced that the document downloaded from the “fit4duty” website titled Medications and Drug Test 28 supports Mr Mallia’s submissions. The document says that “[v]arious medications and other products (such as poppy seeds) can produce non-negative test results on screening kits in urine or saliva drug testing.” (underlining added)

[83] Mr Mallia did not have a non-negative test result for methamphetamines in the screening test but rather a positive result in the laboratory confirmatory testing. In relying on this paper he misunderstands the different testing processes.

[84] I am satisfied that Dr Edwards is a toxicologist qualified to provide evidence on which I can rely with respect to testing standards and what can and cannot be detected by various testing methods. I accept his evidence that the confirmatory testing in the laboratory uses:

specific and selective chromatographic and mass spectral analysis. This is an absolute positive identification and quantitation of methamphetamine. Some drugs, such a Nexium, may interfere with on-site tests which are based on immunoassay and are designed to indicate drugs and materials of similar molecular structure only. However, neither Nexium, nor codeine…nor any other drug will be confused for methamphetamine in the laboratory confirmation test. 29

[85] That is, the drugs Mr Mallia was taking might confuse the on-site testing results but will not confuse the laboratory test results.

[86] I am therefore satisfied that Mr Mallia’s medications did not distort the laboratory test results as shown on the Results Form.

Policy standards at Toll

[87] I do not accept the Port Melbourne Procedure as tabled by Mr Mallia is the current drug and alcohol procedure for Toll. I reach this conclusion for a number of reasons. Firstly, there is a detailed procedure incorporated into the Agreement, referred to below. Secondly, there is a detailed Policy and Standard dated September 2015 suggesting currency of those documents. Thirdly, Mr Mallia’s document appears to have a logo on it at odds with what can be surmised to be the current logo of Toll as found on the Agreement and the Policy. Finally, the document provided by Mr Mallia contains nothing to indicate its date or even if what has been provided is complete.

[88] Clause 36 of the Agreement permits Toll to conduct drug and alcohol testing, inter alia, on a random basis. Such testing is to be undertaken in accordance with the “Drug and Alcohol Policy and Procedure.” That is found at Part C of the Agreement. It allows for:

•  An employee to arrange an independent analysis of any sample taken at his or her own cost;

•  A rehabilitation process where a positive sample is confirmed by laboratory testing;

•  Toll to determine if the rehabilitation process or disciplinary action will be taken against an employee testing positive;

•  Follow-up testing;

•  Access to an assistance program if sought by an employee.

[89] The Policy includes a prohibition on the possession, soliciting, selling or distribution of illicit, non-prescribed or prescribed drugs on Toll premises. It also prohibits an employee being under the influence of illicit drugs on a Toll site.

[90] The Policy allows Toll to determine if an employee found under the influence of illicit drugs should be subject to rehabilitation process or disciplinary action.

[91] The Standard is not dissimilar to Part C - Drug and Alcohol Policy and Procedures of the Agreement with the addition of a disciplinary action table. That table provides for termination of employment if an employee returns a positive result for an illegal drug exceeding the prescribed limit. Nothing in the Agreement restricts this part of the Policy.

[92] In the Agreement, Policy and Standard, an employee who returns a positive drug test result may be subject to disciplinary action.

[93] I am therefore satisfied that the current drug and alcohol policy at Toll is as set out in the Agreement, Policy and Standard. Given my satisfaction as to Toll’s current Policy and Standard, I am satisfied that Mr Mallia’s test results as documented by Racing Analytical indicate that Mr Mallia had a level of methamphetamine in the salvia sample sent for testing that was almost 10 times the allowed limit (233µg/L against an threshold level of 25µg/L).

Is Toll required to offer rehabilitation?

[94] There is no requirement under the Agreement, Policy or Standard that an employee returning a positive result from confirmatory testing must be offered rehabilitation. Mr Mallia’s claims to this effect are misplaced.

[95] I should also note that I do not accept Mr Mallia’s evidence of two other staff that have been offered rehabilitation. As he himself said in his evidence he had no direct knowledge of these two cases.

Submissions made following the adjournment of proceedings

[96] The application by Mr Mallia was heard on 15 and 16 March 2018.

[97] On 19 March 2017 Mr Mallia emailed my associate raising a question about the evidence of Dr Edwards in relation to when it was he would have taken the methamphetamine to record the reading he did. This was forwarded to Ms James of Toll who objected to the Commission taking note of the matter raised in the question.

[98] The question raised by Mr Mallia is a matter that should have been addressed to Dr Edwards when he gave his evidence. It is not something I can consider. In any event, it is a question and gets me nowhere. I have not had regard to it.

[99] On 20 March 2017 the Commission received a further email from Mr Mallia to which he attached what he said was “the b-sample results from analytical services”. He says that this confirms the chain of custody issues of his sample which he raised during the hearing.

[100] I accept that Mr Mallia received a Pathology Report from Western Diagnostic Pathology in relation to his B-sample. It contains the statement that “Acceptance criteria according to Section 5.5 of AS 4760:2006 has not been met due to no chain of custody form accompanying the sample”.

[101] Even if the chain of custody was broken in relation to the B-sample this does not tell me anything about the testing of the A-sample and whether the chain of custody was maintained at that testing point.

[102] However, given Mr Mallia’s statement of the test result, I sought information from Toll as to who was responsible for sending the B-sample for testing, a timeline for when this had occurred and for information as to when it was aware the B-sample had been sent for testing. I also sought some clarification, if it was possible for Toll to obtain it, of the statement on the B-sample test results set out above.

[103] Toll undertook some investigations. Ms James advised me that she was not aware at the time of hearing that Mr Mallia had requested testing of his B-sample and that no one from Medvet advised her of this.

[104] Toll provided:

•  A statement from Ms Cvetkovic who said she was aware that Mr Malia had sought the B-sample testing and she had assisted him in this. Ms Cvetkovic was not aware, at the time of the hearing, that Toll had received the results of the B-sample. She followed the matter up with Ms Boys following the hearing on 19 March 2018.

•  A statement from Ms Boys who said that on 19 February 2018 she received an email from Mr Mallia forwarded to her by the Branch Manager of the Port Melbourne site asking where the results of his B-sample were as Mr Mallia wanted the results for his hearing. Ms Boys emailed Dr Edwards who sent the results to Ms Boys. Ms Boys failed to forward the test results to Ms Cvetkovic, or anyone else. She said this was a genuine oversight. She said that, prior to receiving the request from Ms Cvetkovic on 19 March 2018, she thought she had forwarded the results on to Ms Cvetkovic. Ms Boys included an extract of the email from Dr Edwards to her on 19 February to which he attached the test results in which he said that the Australian Standard “indicates that where a disputed test result is to be confirmed in the same or a different laboratory…it need only return a confirmation that the drug is PRESENT. It need not exceed any cut-off concentration.”

•  A statement from Ms Claire Sutcliffe, Supervising Scientist – Toxicology at Western Diagnostic Pathology who said she tested the B-sample which was received intact. She said the specimen number on the collection tube and documentation both had the same kit number (211278) on them. She also said the barcode (46273208L) was on the sample tested and the request from Racing Analytical for the test to be undertaken. She took photographs of the collection tube which she attached to her statement. She said the comment on the report with respect to “chain of custody” is standard when the laboratory does not receive a more “apparent copy [of] a chain of custody form which is more structured in Western Australia laboratories.”

[105] Following receipt of this information from Toll I sought submissions from both parties as to what steps the Commission should take in relation to the information provided by each party. The options put to the parties were:

1. Re-opening the matter to hear further evidence and submissions. If so, why should the matter be re-opened and what evidence should be heard and be subject to cross-examination;

2. Re-opening the matter to receive, in writing, any further written submissions on the material filed since the hearing on 16 March 2018;

3. Not re-opening the matter;

4. Some other option.

[106] Mr Mallia requested that I re-open the matter to receive further written submissions. He considered the matter critical as it raised issues of the security of the sample as kept at the laboratory of Racing Analytical and, he said, it showed a blatant disregard for the Australian Standards. Further he said that the B-sample test result showed a different result “again” from other test results (presumably the on-site test and the laboratory testing of the A-sample by Racing Analytical).

[107] Toll submitted that any further consideration of the matter should be restricted to the “chain of custody” issue as raised by Mr Mallia in his email to the Commission on 20 March 2018. In considering this, it submitted that the matter should not be re-opened.

[108] I decided not to re-open the case and advised the parties of my decision at the time I made it. I also advised the parties that my reasons for not re-opening the matter would be published in conjunction with my decision on the application for unfair dismissal of Mr Mallia. Those reasons follow.

[109] The principles relevant to re-opening a case are that: the evidence sought to be admitted could not have been obtained with due diligence prior to hearing; the evidence, if accepted, has a high probability of affecting the result; and the evidence is credible. 30

[110] The evidence Mr Malia seeks to have admitted is that in relation to the testing of his B-sample and, in particular, the statement on the testing result that the chain of custody was not guaranteed with the sample. From this Mr Mallia seeks to have the Commission infer that the chain of custody with respect to his A-sample could not be guaranteed and hence that sample should never have been tested. In support of this, Mr Mallia suggested that there were now three different test results – the on-site test result as shown on the Testing Form, the Racing Analytical test result which showed above acceptable levels of methamphetamine and the Western Diagnostic Pathology report which confirms the presence of methamphetamine and amphetamines.

[111] I am satisfied that the B-sample results could have been obtained by Mr Mallia prior to the hearing of his application with some due diligence on his part. Mr Mallia apparently received assistance from Ms Cvetkovic in having his B-sample tested but did not inquire of her if any result had come in. Instead, he apparently communicated with his Branch Manager (David Thompson) who passed that enquiry on to a different person (Ms Boys) within Toll. I do accept, however, that failures of communication within Toll contributed to Mr Mallia not having the information he sought. Ms Boys failed to pass the test results on to anyone and there appears to be no clear protocol for communicating such a matter to the person who had, after all, requested the further testing. The process within Toll for dealing with a B-sample test process is confused. In these circumstances, whilst Mr Mallia could have done more to obtain the results, that there was no clear process for him to do so leads me to conclude that the ability to obtain the evidence on which Mr Mallia seeks to rely a neutral consideration in deciding if I should re-open the matter.

[112] I am not convinced that the evidence, if it was admitted, would have a high probability of affecting the outcome of the case. At its highest the evidence suggests that there may have been an issue with chain of custody with the B-sample at Western Diagnostic Pathology although this may be explained by particular protocols in Western Australia. In any event, regardless of the chain of custody of the B-sample, it cannot be inferred from this that there was any issue with the chain of custody of the A-sample and it is the result of the A-sample that Toll relies on for its decision. Further, a consideration of the evidence indicates that the B-sample collection tube has the same barcode number on it as found on the A-sample collection tube and the Testing Form given to Mr Mallia by Ms Ducret, strongly suggesting that there has been no contamination of the chain of custody.

[113] Further, Mr Mallia’s employment was terminated because he failed a drug and alcohol test as tested and reported by Racing Analytical. This is the matter I have had regard to in reaching my decision. This weighs against re-opening the case.

[114] I do not question the test result as reported by Western Diagnostic Pathology. The comment that the chain of custody could not be assured is of concern but, should the matter proceed, Toll will inevitably call evidence from Ms Sutcliffe with respect to the standards that apply in Western Australia with respect to the chain of custody. In any event, on the basis of the material provided by Ms Sutcliffe the B-sample collection tube has the same bar-code information on it as is on the Results Form from Racing Analytical and the Testing Form given to Mr Mallia. The evidence given may well be credible but will not necessarily assist Mr Mallia. I do not consider that it will alter the outcome.

[115] No other submissions of weight effect my decision on this point.

[116] For all of these reasons I have determined not to re-open the case.

Was Mr Mallia unfairly dismissed?

[117] I am satisfied that Mr Mallia is protected from unfair dismissal. Further, I am also satisfied that Mr Mallia made his application within the time prescribed by the FW Act, the Small Business Fair Dismissal Code does not apply and that the dismissal was not a result of redundancy.

[118] It is therefore necessary for me to determine if his dismissal was harsh, unjust or unreasonable.

[119] Section 387 of the FW Act states:

387  Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) 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 the FWC considers relevant.

[120] I have considered each of the matters in s.387 below.

Section 387(a) - a valid reason for the dismissal

[121] I am satisfied, on the basis of the evidence before me that Mr Mallia did test positive for methamphetamines in the laboratory test of his saliva sample. I am satisfied that it was his sample that was tested and that the level of methamphetamine reported in the Results Form as having been found in the laboratory testing was well outside the allowable level.

[122] The level of methamphetamines in Mr Mallia’s A-sample well exceeded the acceptable level as set out in the Policy.

[123] Mr Mallia was dismissed for failing to meet the required Policy. His drug test results provide a valid reason for his dismissal.

Section 387(b) - notified of the reason

[124] Mr Mallia was notified of the reason for his dismissal in both the show cause letter and in the letter of dismissal.

Section 387(c) - opportunity to respond

[125] Mr Mallia was given an opportunity to respond to the reason for his dismissal prior to the decision to dismiss him being made. He took up this opportunity in writing and by meeting with Ms Cvetkovic, Mr Caruana and Mr McKenzie.

[126] I am satisfied that Mr Mallia had an opportunity to respond to the reason for his dismissal.

[127] I do note that it was at this time that Mr Mallia admitted to Ms Cvetkovic, Mr Caruana and Mr McKenzie that he had taken methamphetamine on the Saturday evening prior to the Monday testing.

Section 387(d) – unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

[128] Mr Mallia had his union representative and his wife with him in meetings with Toll management.

Section 387(e) – unsatisfactory performance

[129] Mr Mallia’s dismissal did not relate to performance issues.

Section 387(f) and (g) - the size of the employer’s business and absence of dedicated human resource management specialists or expertise

[130] Toll is a large employer. It has a well-established human resources department who were involved in the meetings and processes leading to the decision to dismiss Mr Mallia. My expectation is that the processes of Toll in this respect would be sound and well established. I have no reason to find otherwise.

Section 387(h) – any other matters

[131] For the reasons given above, I am not satisfied that there has been a breach in the chain of custody of Mr Mallia’s A-sample sent for laboratory testing such that the test result should be put aside. Whilst he considers the failure of Ms Ducret to complete the Testing Form in relation to the Kit and Tube seal numbers to be fatal to the testing, I am satisfied that there are other means by which the chain of custody could be, and was, assured.

[132] I am satisfied that Mr Mallia initialled both collection tubes and that the photographs of the collection tubes show his initials on each of them. I reject his assertion that one of the initials is not his.

[133] Further, I accept the evidence of Ms Ducret that she completed the Testing Form after Mr Mallia left the room but before she sent the samples for testing. The completion of the Testing Form was no more than putting the control I.D. number found on the collection tubes on to the Testing Form.

[134] There is nothing in the Policy, Standard or Agreement that apply to Mr Mallia that suggest he should have been offered rehabilitation once he failed a drug test. I do not accept the Port Melbourne Procedure is a current procedure or policy within Toll. It has no bearing on my decision. Mr Mallia could not explain the document or where he obtained it from.

[135] In circumstances where an employee has failed a drug test it might be prudent for Toll to provide to the employee, along with the test results or at the time of being advised of the test results, a copy of the relevant Policy and Standard such that there can be no confusion as to the process to be followed from that point on and details of the employee’s rights in dealing with the matter.

[136] I accept that Mr Mallia’s B-sample was tested. I am satisfied that it showed a level of methylamphetamine (methamphetamine) in the B-sample. It appears that Mr Mallia’s request to have his B-sample tested and to be given access to that test result was mismanaged. It is not clear who the result of the B-sample testing belongs to (the employee concerned or Medvet or Toll) but it seems unusual that, having requested the B-sample testing, the results were not provided directly to Mr Mallia. I would observe however that Mr Mallia did have the opportunity to cross-examine Ms Cvetkovic about the testing of the B-sample when she appeared as a witness but he declined to do so even though she apparently assisted him in seeking further testing. In this case I am not convinced that having access to the result of his B-sample would have assisted Mr Mallia’s case and it does not alter my decision. It was an unfortunate error on the part of Toll not to have forwarded this information to Mr Mallia but this is not enough to alter my decision.

Harsh, unjust or unreasonable

[137] Whilst I have made some relevant observations in relation to drug and alcohol testing, none of these is such to provide any basis to not conclude that the dismissal of Mr Mallia was harsh, unjust or unreasonable.

[138] Mr Mallia worked in what he agreed was a high traffic, high risk workplace. The workplace was frequented by trucks, forklifts and pallet movers. Whilst Mr Mallia was working on light duties doing data entry due to an injury to his shoulder this does not alter the obligation on him to comply with the relevant policies of Toll. The Policy, Standard and Agreement all applied equally to Mr Mallia regardless of his working arrangements. Mr Mallia clearly was aware that the Agreement applied to his employment and that it contained provisions in relation to drug and alcohol testing. He did, after all, provide the Commission with part of the Agreement. That he failed to provide the totality of the provisions in relation to drug and alcohol testing does not weigh in his favour.

[139] Whether Mr Mallia did take methamphetamine on the Saturday or some other time prior to testing and whether he admitted to it or not is not the relevant consideration in determining if his dismissal was harsh, unjust or unreasonable. Mr Mallia’s drug test was returned with a level of detected methamphetamine well in excess of the acceptable level. Mr Mallia has sought to explain the reading in a manner of ways. None of these are accepted. No plausible reason has been put forward to suggest that there was any error that would bring this result it into question.

[140] Toll rightly takes seriously its obligation to the health and safety of its employees and to the safety of other road users. To the extent it has developed a more stringent policy in recent years cannot excuse such a blatant disregard of that policy as evidenced in Mr Mallia’s A-sample result.

[141] In Bryne and Frew v Australian Airlines Ltd 31it was found that:

...It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

[142] In this case the conduct occurred and it provided a valid reason for dismissal. The termination of Mr Mallia’s employment was not unjust or unreasonable and nothing has been put to suggest it was otherwise harsh. I am satisfied that the termination was not harsh, unjust or unreasonable. Whilst Mr Mallia raised some legitimate issues in relation to B-sample testing procedures, these do not alter my conclusion.

Conclusion

[143] For the reasons given above I am not satisfied that Mr Mallia was unfairly dismissed. His application for relief from unfair dismissal is therefore dismissed. An order 32 to this effect will be issued with this decision.

COMMISSIONER

Appearances:

P. Mallia on his own behalf.

F. James for Toll Transport Pty Ltd T/A Toll

Hearing details:

2018.

Melbourne:

March 15, 16.

<PR601419>

 1   Exhibit A1.

 2   Ibid.

 3   Exhibit A2.

 4   Exhibit A5.

 5   Exhibit A1.

 6   Exhibit A6.

 7   Exhibit R2.

 8   Exhibit R1.

 9   Exhibit A10.

 10   Exhibit A8.

 11   Ibid.

 12   AE405183. Note that this Agreement has subsequently been replaced but this occurred after Mr Mallia was dismissed.

 13   Exhibit R4, attachment EC3.

 14   Schedule C, clause 5.2(b).

 15   Exhibit R4, attachment EC3, clause 5.2.2(b).

 16   Exhibit R4, attachment EC9.

 17   Exhibit R4, paragraphs 47-48.

 18   Exhibit R4, attachment EC12.

 19   Exhibit R4, attachment EC21.

 20   Exhibit A11.

 21   Exhibit R4, attachment EC7.

 22   Exhibit R5, attachment JD2.

 23   Exhibit R5, attachment JD3.

 24   Exhibit R6, paragraph 13.

 25   Exhibit R7.

 26   Exhibits R1 and R7.

 27   Exhibit A7.

 28   Exhibit A9.

 29   Exhibit R6, paragraph 13.

 30   Akins v National Australia Bank (1994) 34 NSWLR 155.

 31 (1995) 61 IR 32 at p.72 (per McHugh and Gummow JJ).

 32   PR602161.

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