Russell Madsen v Downer EDI Mining Pty Ltd

[2013] FWC 5022

[2013] FWC 5022

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Russell Madsen
v
Downer EDI Mining Pty Ltd
(U2013/6353)

DEPUTY PRESIDENT MCCARTHY PERTH, 2 AUGUST 2013

Termination of employment - drug policy - valid reason.

[1] Mr Russell Madsen (the Applicant) lodged an Application for Unfair Dismissal Remedy (the Application) regarding his dismissal from his employment by Downer EDI Mining Pty Ltd (the Respondent) claiming his employment was terminated harshly.

[2] The Applicant was employed at the Christmas Creek project (the project) under the terms of that Downer EDI Mining Christmas Creek Project Enterprise Agreement (the agreement). The Applicant had been employed by the Respondent from 21st of December 2010 until his dismissal on 21 January 2013.

[3] The reason given to the Applicant for his dismissal by the Respondent was that he returned a positive drug test after returning to work from rest and recreation leave (R&R).

[4] It is not disputed that on the day the Applicant returned from R&R on 15 January 2013, upon presenting himself for work that he underwent a drug and alcohol test. The test conducted was a urine test. Nearly 900 employees and contractors on the site were tested and positive results were sent to Perth for analysis by a pathology laboratory.

[5] The Applicant was stood down until the laboratory results were known. The laboratories detected methamphetamines present and advised that those results were consistent with recent methamphetamine use and that methamphetamine is not present in medications and use of it is unlawful in Australia.

[6] The Applicant was telephoned on 21 January 2013 by the mining manager and advised that he had been dismissed. A letter of termination was e-mailed to the Applicant later that day.

[7] The Applicant asserts that his termination of employment was unfair because whilst there might be residual traces of methamphetamines detected in urine the effects of the drug would no longer have any effect. He criticised the use of urine test kits instead of mouth swabs. He also criticised the Respondent for not supplying drug testing kits to employees to test themselves. The Applicant also criticised the Respondent’s practices and procedures in that they did not provide counselling for initial breaches of the fitness for work standard.

[8] The approach of the Applicant in this matter seems to be an expectation that he should not have been dismissed but rather provided with counselling, and that despite the positive test to excess levels of amphetamines he was nevertheless fit for work.

[9] The Respondent argued that it was expensive for employees to be flown to and from site and on the day of their arrival at site they are expected to be fit for work. The Respondent stated that they applied the drug practices and policies strictly and this was known and supported by employees of the Respondent because of the hazards and risks associated with work at a mine site of this nature.

[10] The Respondent claimed that the Applicant was treated no differently to any other employee, indeed there was no assertion by the Applicant that there was differential treatment. The Respondent also claimed that the test procedures were reasonable and that the fitness for duty requirements were also reasonable.

[11] The fitness for duty requirements provide that if the results of any tests are outside the assessment criteria specified in the fitness for work standard, employees will be subject to the disciplinary process. The disciplinary process is included in the performance management standards that state amongst other things that serious misconduct is wilful or deliberate behaviour by an employee inconsistent with the continuation of employment and is typified by conduct which breaks the trust in the employment relationship. The standard includes in the definition of serious misconduct the breaching of fitness for work standards. The Respondent referred to the fitness for work standards which prohibits employees working with levels of illegal drugs in their body that are at or in excess of the prescribed levels. It also allows for random testing.

[12] The rules and procedures of the Respondent appear to me to be clear and fair. Furthermore, I accept that the rules and procedures are well-known and were also accepted as reasonable. I do not accept the argument of the Applicant in respect of criticism of the test or any obligation by the Respondent to provide counselling in the first instance. Nor do I accept that because the amphetamines present were consumed during R&R that this diminishes the seriousness of the conduct.

[13] I therefore find that there was a valid reason for termination of the Applicant’s employment.

[14] The Applicant was not expressly informed of his conduct. However he was well aware of what conduct was, namely presenting for work excess levels of illicit drugs in his blood system. He was also implicitly informed of his conduct through the fact that he was stood down.

[15] The Applicant I find was not provided with an opportunity to respond to his conduct and the reasons for his dismissal however I consider this element in my considerations to be of little weight. There was no refusal to have a support person present in any interviews because there were no interviews.

[16] The size of the employer was of little relevance to the procedures conducted and there were human resource expertise available and this was used.

[17] The Respondent submitted relevant considerations were the hazardous nature of the industry, the costs associated with transporting employees to and from site and the expectation that employees would present for work immediately they arrived on site in a state that was in compliance with the fitness for duty standards.

[18] I find that the termination of employment of the Applicant was not harsh unreasonable or unjust and therefore the dismissal was not unfair. The application is dismissed

DEPUTY PRESIDENT

Appearances:

Mr R. Madsen, the Applicant.

Mr J Goos, from the Respondent.

Hearing details:

2013.

Perth and Brisbane (video hearing):

16 July.

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