Peter Tadrous v St John of God Health Care Inc

[2016] FWC 4809

[2016] FWC 4809

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Tadrous
v
St John of God Health Care Inc
(U2016/5394)

COMMISSIONER WILLIAMS PERTH, 19 JULY 2016

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Peter Tadrous (Mr Tadrous or the applicant) under section 394 of the Fair Work Act 2009 (the Act). The respondent is St John of God Health Care Inc (St Johns or the respondent).

[2] The application was the subject of a hearing held on 1 June 2016. At the conclusion of the hearing I gave brief oral reasons for my decision and dismissed the application.

[3] These are the reasons for that decision.

Background

[4] Following an unsuccessful conciliation conference the Commission as currently constituted convened a telephone directions conference on 6 May 2016. The applicant attended by telephone with his representative.

[5] Later that day the Commission emailed and posted to the applicant and also to his representative a notice of listing for a hearing of his application to be held on 1 June 2016. Attached to the notice of listing were directions which required both parties to file their witness statements and submissions by 20 May 2015.

[6] Those directions advise the parties that if the applicant did not comply with the directions the application may be dismissed. The directions also stated that all witnesses must attend the hearing.

[7] Subsequently the Commission was advised that the applicant’s representative was ceasing to act for him.

[8] St Johns filed their materials in accordance with the directions on 20 May 2016 and served these upon the applicant. The applicant did not file any materials in accordance with the directions by this date.

[9] Consequently the Commission immediately wrote to the applicant reminded him of the directions he was required to comply with and allowed him an extension to file his materials by 25 May 2016.

[10] On 25 May 2016 the applicant did file written materials in support of his application including a detailed response to the materials the respondent had provided with various attachments.

[11] On the date of the hearing, 1 June 2016, the representatives and witnesses for St Johns attended however there was no appearance by the applicant nor anyone on his behalf.

[12] Consequently I directed my associate to attempt to contact the applicant. Phone calls were made to two mobile telephone numbers the applicant had previously provided. There was no answer to either call. Messages were left on both mobile phones urgently requesting he contact the Commission.

[13] The applicant did not reply to these messages or otherwise contact the Commission that day.

[14] As at the date of this decision the Commission has not had any further contact of any type from the applicant.

[15] In the circumstances the hearing proceeded in the applicant’s absence.

Factual findings

[16] At the hearing evidence was given by Mr Mirco Hallas (Mr Hallas), St Johns’ Manager, Security Services Perth Northern Hospitals, Ms Kym Whyte (Ms Whyte) St Johns’ HR Partner Midland Public and Private Hospitals and Mr Darren Jones St Johns’ Manager, HR Partner Perth Northern Hospitals.

[17] I also accepted into evidence the materials that had been filed by the applicant 1 noting of course the applicant was not present to swear to the correctness of his statement nor to be cross-examined by St Johns on the contents of his statement.

[18] Having considered the evidence of the three witnesses for St Johns and the applicant’s materials I accept the evidence of the witnesses for St Johns in full and prefer their evidence over any contrary information contained in the applicant’s materials.

[19] Mr Tadrous was employed as a Security Response Officer at St John of God Midland Public and Private Hospitals. He commenced employment on 1 July 2015.

[20] On 18 February 2016 the applicant attended work. His behaviour on this day raised concerns regarding his wellbeing and fitness for work. The applicant was consequently requested, at a meeting at 11.00 a.m. with his Manager, Mr Hallas and Ms Whyte, Human Resources, to attend a medical appointment with OSH Group to assess his fitness for work. The applicant consented to this appointment.

[21] At the commencement of the appointment the applicant was requested to provide a urine sample to which he consented.

[22] The applicant met with a medical practitioner at OSH Group to assess his mental health and his fitness for work. During this appointment given ongoing concerns regarding the applicant’s well-being the doctor sought clarification as to whether he would be willing to attend the Emergency Department (ED) at Sir Charles Gairdner Hospital (SCGH), voluntarily for further assessment regarding his mental well-being. The applicant consented to this and at approximately 3.00 p.m., Mr Hallas and the applicant proceeded via taxi to the ED at SCGH.

[23] The applicant was not seen until approximately 10.00 p.m. that evening. Mr Hallas did not stay with the applicant for the whole time however the applicant was texting both Mr Hallas and Ms Whyte whilst waiting in ED. A cab charge voucher was provided to the applicant to enable him to get home.

[24] The respondent made it clear to the applicant that until the respondent had received relevant documentation regarding his fitness for work he would not be able to return to work.

[25] The respondent received the report from OSH Group which also included the laboratory results of the urine analysis. The initial assessment was that until the applicant undergoes further assessment of his mental state he was not considered fit for work. The respondent did not have any report from the ED Department, SCGH at this time.

[26] A decision was made to meet with the applicant to advise that he would continue to be suspended on pay. This meeting occurred on 25 February 2016. Correspondence was provided to the applicant at this meeting confirming that:

(a) he would continue to be suspended on pay;

(b) a positive test for methamphetamine and amphetamine had been received; and

(c) this was a serious matter and that St Johns would need to proceed with an investigation regarding his conduct and behaviour once they were confident the applicant was fit to respond to the specific allegations.

[27] The applicant was clearly informed in this correspondence that if there was a need for a meeting to clarify matters that he would have the right to a support person and that it would be his responsibility to organise their attendance.

[28] A copy of the positive test referred to above was included in St Johns’ evidence and the record of this test states:

“Amphetamine type substance further testing required”

[29] Further information regarding the positive test was contained in the Urine Drug Screen-Confirmatory Report which states that methamphetamine and amphetamine has been confirmed by Liquid Chromatography Mass Spectrometry (LC/MS) and that these compounds are not consistent with the medications the applicant had declared at the time of providing his urine sample being Aspirin and Panadol.

[30] The respondent also provided the applicant with the opportunity to attend a Drug and Alcohol Counselling service in light of the positive drug test.

[31] The applicant in the materials he has provided to the Commission has included a document headed:

“Patient Results Haematology results –performed since 1 February 2016”.

[32] Ignoring the lack of clarity as to when the blood was taken from the applicant for this full blood picture detailed in these test results, the critical point is that this is not a test for drugs but rather is a test that analyses matters such as the haemoglobin and white cell count etc. in the applicant’s blood. The results of this blood test do not contradict the drug tests provided to the Commission by St Johns which expressly refer to a positive test for methamphetamine and amphetamine in the applicant’s urine he provided on 18 February 2016

[33] On 29 February 2016, the applicant forwarded to the respondent a letter from the Doctor at SCGH ED which advised that the applicant was not suffering from mental health issues and that he would be fit to return to work. On the basis of receiving this letter the decision was made to proceed with the investigation into the applicant’s conduct and behaviour.

[34] A letter detailing the specific allegation of serious misconduct was issued to the applicant on the afternoon of 1 March 2016. This was emailed and sent via post. A text message was also sent to the applicant confirming that the letter had been emailed to him.

[35] The letter attached alleged that the applicant had engaged in serious misconduct by attending work impaired/intoxicated by an illicit drug. The positive drug test was provided as evidence to support the allegation made by the employer. It was made clear that from the respondent’s perspective this constituted serious misconduct. The applicant was invited to respond to the allegation, was invited to provide any mitigating or extenuating circumstances and invited to show cause why his employment should not be terminated.

[36] The applicant’s response was received via email, dated 7 March 2016. The applicant denied the allegation of having taken drugs and suggested that the positive test result was related to fitness supplements that he takes. The applicant said that he takes a combination of the following supplements i.e. Craze, DLAA, Frenzy, BCAAs and Duromine 15mg.

[37] Consequently the respondent resolved to seek further medical clarification as to whether these substances could have resulted in the positive test for methamphetamines and amphetamines.

[38] The respondent received confirmation from OSH Group that the LC/MS test performed, in light of the declared fitness supplements, is highly unlikely to be any other substance other than methamphetamine and amphetamine. It was further explained that the first testing method (i.e. immunoassay) is not specific; it only determines the broad drug grouping (i.e. amphetamine), which is why the sample was then sent for further testing via LC/MS. Explanation was provided that the latter test is more specific as each substance has a chemical “fingerprint” which is why the test result should be interpreted as a positive for methamphetamine and amphetamine.

[39] The applicant was invited to attend a meeting with the respondent on 11 March 2016. The applicant was advised that he could have a support person present, however did not attend with anyone.

[40] As a result of the further medical clarification received, the respondent determined that, on balance, the applicant had attended work whilst intoxicated by an illicit substance; that this constituted serious misconduct and that the applicant’s actions were inconsistent with the expectations of any employee and more specifically inconsistent with his role and responsibilities as a Security Response Officer and consequently his employment was terminated. The respondent confirmed the above in writing which was presented to the applicant at the conclusion of the meeting.

Consideration

[41] Section 387 of the Act details the specific matters the Commission must have regard for when determining whether a dismissal was harsh, unjust or unreasonable.

“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) 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 the FWC considers relevant.”

Valid reason

[42] The applicant had tested positive for methamphetamine and amphetamine whilst at work. This was a valid reason for the applicant’s dismissal.

Notification of the reason

[43] The applicant was notified by the respondent of the reason it was considering dismissing him before the final decision to dismiss was made.

Opportunity to respond

[44] The applicant was provided with an opportunity to respond to the reason the respondent was considering dismissing him and took up that opportunity in writing.

Refusal of a support person

[45] There was no unreasonable refusal by the respondent of a support person.

Warnings

[46] The dismissal was not because of the applicant’s performance so warnings are not relevant.

Size of the employer and HR specialists

[47] The respondent is a large employer which does have dedicated human resource specialists and the procedure followed reflected this professionalism.

Other matters

[48] The applicant had been employed for the less than eight months at the time of dismissal.

Conclusion

[49] The dismissal of the applicant in all the circumstances of this case was neither harsh, unjust nor was it unreasonable. The applicant was not unfairly dismissed.

[50] Accordingly this application is dismissed and an order will be issued.

COMMISSIONER

Appearances:

C Francis on behalf of the respondent.

Hearing details:

2016.

Perth:

June 1.

 1   Exhibit A1.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR582903>