Reece Goodsell v Sydney Trains - [2023] FWC 3209

[2023] FWC 3209

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Reece Goodsell
v

Sydney Trains

(U2022/9973)

DEPUTY PRESIDENT EASTON

SYDNEY, 4 DECEMBER 2023

Application for relief from unfair dismissal – random drug testing – positive test result for a cocaine metabolite – drug and alcohol policy – testing for usage rather than impairment – connection between out-of-hours conduct and workplace safety – risk of impairment when attending work – valid reason found – mitigating factors – zero tolerance – employee on leave prior to testing – no risk of impairment – dismissal was harsh and unreasonable – reinstatement order.

Background

On 12 October 2022 Mr Goodsell made an application to the Fair Work Commission under s.394 of the Fair Work Act 2009 (Cth) for a remedy, alleging that he had been unfairly dismissed from his employment with Sydney Trains. Mr Goodsell seeks reinstatement to his former position.

On 4 June 2022 Mr Goodsell returned to work from a period of leave and took a random drug test. Mr Goodsell tested positive for a cocaine metabolite, was then suspended and ultimately dismissed on 23 September 2022.

Mr Goodsell was represented by the Australian Rail, Tram and Bus Industry Union (RTBU) and Mr Saunders of counsel with permission under s.596 of the Fair Work Act 2009 (Cth) (“FW Act”). Sydney Trains was represented by Maddocks and Mr Darams of counsel.

A Drug and Alcohol-Free Workplace: Sydney Trains’ Drug and Alcohol Policy

Both parties agreed that Mr Goodsell breached Sydney Trains’ Drug and Alcohol Policy (D&A Policy). The terms of the D&A Poliy are not long or complicated.

The D&A Policy states a ‘vision’ of a drug and alcohol-free workplace:
“Sydney Trains is committed to providing a safe environment for all workers and customers through reducing the risks created by the use of drugs and alcohol in the workplace.”

The D&A Policy Statement is as follows:
“To achieve this vision, we:
·   Have a random drug and alcohol testing program.
·   Have test readings showing zero concentration of alcohol in the blood.
·   Have a test reading less than the cut off level stipulated in the Australian / New Zealand Standard 4308 (AS/NZS 4308) for tolerances of drugs.
·   Are not permitted to have or sell alcohol or prohibited drugs in the workplace.
·   Must not be in possession of any item or piece of equipment for the use or administration of a prohibited drug at any Sydney Trains’ workplace.
The Sydney Trains drug and alcohol program is consistent with our corporate values and behaviours. It also provides support for our workers to remain drug and alcohol free while at work.
Measures to reduce safety risk, absenteeism and other effects in the workplace, due to the consumption of drugs and alcohol, will include the opportunity to self-identify and seek help, rehabilitation programs and education on drug and alcohol related issues.”
The Drug and Alcohol Management Program describes the processes by which Sydney Trains manages…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] FWC 3209
Decision Date: 4 DECEMBER 2023

CaseChat Overview and Summary

Reece Goodsell made an application to the Fair Work Commission for a remedy for unfair dismissal. Mr Goodsell was dismissed after a random drug test at work returned a positive result for cocaine metabolites. Mr Goodsell was represented by the Australian Rail, Tram and Bus Industry Union (RTBU) and Mr Saunders of counsel. Sydney Trains was represented by Maddocks and Mr Darams of counsel. The Fair Work Commission found that while Mr Goodsell's dismissal was for a valid reason, it was nonetheless harsh, unjust or unreasonable and therefore an unfair dismissal. The Commission ordered that Mr Goodsell be reinstated to his former position and that Sydney Trains pay Mr Goodsell an amount for the remuneration lost by Mr Goodsell because of the dismissal.

Orders