Sharp v BCS Infrastructure Support Pty Limited - [2014] FWC 7310

[2014] FWC 7310 [Note: An appeal pursuant to s.604 (C2014/7029) was lodged against this decision - refer to Full Bench decision dated 27 February 2015 [[2015] FWCFB 1033] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sharp
v
BCS Infrastructure Support Pty Limited
(U2014/634)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 OCTOBER 2014

Application for relief from unfair dismissal - employee dismissed for returning a positive drug test result - no impairment alleged - breach of employer’s policies - whether harsh, unjust or unfair - application dismissed.

[1] On 3 March 2014, an application pursuant to s.394 of the Fair Work Act 2009 (the Act) was lodged by Mr Owen Sharp (the Applicant).

[2] The matter was subject to an unsuccessful conciliation on 10 April 2014, and consequently was listed for hearing before me on 4 and 5 August 2014. At the hearing, the Applicant was represented by Ms L Saunders from the Australian Manufacturing Workers’ Union (AMWU) and BCS Infrastructure Support Pty Ltd (the Respondent) was represented by Mr P Rozen of Counsel. Mr Rozen’s appearance was not objected to by the Applicant, and having formed the view that the matter would proceed more efficiently if the Respondent was represented by a lawyer, permission was granted in accordance with s.596 of the Act.

[3] The Applicant filed written submissions and materials in the Fair Work Commission (the Commission) on 5 June 2014. The Respondent filed written submissions and materials in the Commission on 18 June 2014. Reply submissions and materials were filed by the Applicant on 25 July 2014.

[4] The Applicant gave evidence on his own behalf and called no further witnesses.

[5] The following witnesses gave evidence on behalf of the Respondent:

Mr Neal Hiland, Operations and Maintenance Manager, BCS Infrastructure Support Pty Ltd

Ms Christine Canfield, Group Human Resources/Occupational Health & Safety Manager, BCS Infrastructure Support Pty Ltd

Mr Jeffrey Barden, National Operations Manager, BCS Infrastructure Support Pty Ltd

Dr Angus Forbes, Medical Review Officer, Sonic Healthplus

Dr Somnuk Phonesouk, General Medical Practitioner, Sydney Airport Medical Centre

[6] I was greatly assisted by the provision of an agreed statement of facts by the parties. Both parties should be commended for their contribution to this statement as it allowed the hearing to proceed much more efficiently, having regard to the limited number of factual issues in dispute.

Background

[7] The Applicant was employed by the Respondent in November 2006. In April 2011, he was promoted to the position of team leader, and he remained in this position until his termination on 21 February 2014. The Applicant’s place of work was Sydney Airport, which is operated by Sydney Airport Corporation Limited (SACL). The work performed by the Applicant was the result of a contract between the Respondent and Qantas Airways Limited (Qantas) for the maintenance and servicing of equipment including carousels and aerobridges. The work performed by the Applicant was considered to constitute “Safety Sensitive Aviation Activities” (SSAA) for the purposes of…

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.

Continue reading Sharp v BCS Infrastructure Support Pty Limited

Details

AGLC: Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310
Case: [2014] FWC 7310
Decision Date: 15 OCTOBER 2014

CaseChat Overview and Summary

Sharp, an employee of BCS Infrastructure Support Pty Limited, applied for relief from unfair dismissal after being dismissed for returning a positive drug test result. The employee argued that the dismissal was unfair despite there being no allegation of impairment in his work. The employer maintained that the dismissal was justified due to a breach of its policies. The Fair Work Commission was tasked with determining whether the dismissal was harsh, unjust or unfair.

The primary legal issue for the Commission was to assess whether the dismissal of the employee was justified under the Fair Work Act. The Act permits dismissal for serious misconduct, and the employer argued that the employee's actions constituted serious misconduct by breaching company policy. The employee contended that the dismissal was unfair as there was no impairment of work performance or safety concerns. The Commission had to balance the employer's right to enforce its policies against the employee's right to be protected from unfair dismissal.

The Fair Work Commission concluded that the employer had a legitimate reason to enforce its drug and alcohol policy, which was communicated to the employee. The employee's return of a positive drug test result, despite being aware of the policy, constituted a breach warranting dismissal. The Commission found that the employer's action was not harsh, unjust or unfair, as the employee had failed to adhere to a clearly communicated workplace policy. The application for relief from unfair dismissal was dismissed.

Orders