Tara Leah Cunningham v Downer EDI Mining Pty Limited

[2015] FWC 318

[2015] FWC 318

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tara Leah Cunningham
v
Downer EDI Mining Pty Limited
(U2014/1457)

COMMISSIONER CAMBRIDGE SYDNEY, 14 JANUARY 2015

Application for unfair dismissal remedy - summary dismissal - non negative workplace drug test result - confirmatory test result of more than 4 times cut off figure for Methylamphetamine - valid reason for summary dismissal - procedural deficiencies considered - subsequent rectification of backdated dismissal - application dismissed.

[1] This is the second Decision in this matter. On 11 August 2014, the Fair Work Commission (the Commission) issued a Decision refusing permission for the respondent employer, Downer EDI Mining Pty Ltd (the employer) to be represented by lawyers or paid agents.

[2] The matter involves an application for unfair dismissal remedy made pursuant to s.394 of the Fair Work Act 2009 (the Act). The application was made by Tara Leah Cunningham (the applicant) who was represented by the Construction, Forestry, Mining & Energy Union (CFMEU).

[3] The application was filed on 28 April 2014. The application indicated that the date that the applicant’s dismissal took effect was 10 April 2014. However, it has subsequently been verified that the dismissal of the applicant occurred on 11 April 2014. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[4] The matter was not resolved at conciliation and it has proceeded to arbitration before the Commission in a Hearing conducted in Sydney on 8 and 9 September, and 2 and 24 October 2014.

[5] At the Hearing, Mr K Endacott, a legal officer with the CFMEU, appeared for the applicant. The applicant and two other witnesses were called to provide evidence in support of the claim. The employer was represented by Mr J Goos, who called a total of four witnesses who provided evidence on behalf of the employer.

Factual Background

[6] The applicant is a woman who was 30 years of age at the time of the dismissal. The applicant had worked for the employer for about 4 years. The applicant was initially employed as a Cleaner and she was promoted to the position of an Operator after about 12 months of her employment.

[7] The employer is part of a large corporation which employs more than 20,000 people in Australia, New Zealand and the Asia Pacific region. Relevantly, the employer is the contract operator of the Boggabri Open-Cut Coal Mine (the Mine).

[8] The applicant’s work as an Operator at the Mine primarily involved the driving of very large dump trucks. The applicant drove large dump trucks which, when fully laden, weighed in excess of 580 tonnes. The work of an Operator provided substantially more remuneration than that of a Cleaner. The applicant had a generally good work record and she was considered to be a competent Operator who had no recorded performance issues in respect to her driving of the very large dump trucks.

[9] On Wednesday 2 April 2014, the applicant returned to work after a roster break of several days and before she commenced day shift she was required to undertake a random drug test in accordance with the employer’s alcohol and drug management protocols. The applicant had previously been required to undertake such onsite drug testing which involves providing a urine sample. On all previous occasions the applicant had not had any drug test return a non negative result. On this occasion the onsite test detected the presence of methylamphetamine.

[10] In accordance with the employer’s drug management protocols the applicant was suspended from duty with pay and advised that the test samples would be sent for confirmatory laboratory testing. The applicant did not offer any immediate explanation for the apparent presence of methylamphetamine. However, there was some mention of the fact that the applicant had taken prescribed antidepressant medication as she suffered a bipolar disorder, and the presence of some antidepressant medication may have caused a “false” non negative reading for methylamphetamine.

[11] On 3 April, the applicant made arrangements with her medical practitioner (Doctor) to have separate pathology testing undertaken. The applicant was concerned that the non negative test result for methylamphetamine might have been related to events that occurred on the preceding Saturday night and Sunday morning. On the night and morning of Saturday 29 March and Sunday 30 March the applicant had been drinking excessive quantities of alcohol at a hotel and she had engaged socially with two men that she did not know and was unable to subsequently identify. The applicant could not recall the detail of events of the evening and early morning after she had engaged with these two unknown men. The applicant believed that she may have had her drink “spiked” by one or both of these unknown men and that was when she unwittingly had methylamphetamine introduced into her body.

[12] Despite the applicant’s developing concern that she was potentially the victim of a drink spiking incident she did not make any immediate complaint to the Police nor did she arrange to have the separate pathology tests, which had been arranged through her own Doctor, undertaken until she first submitted a further sample on 7 April. The separate pathology tests undertaken on a sample provided by the applicant on 7 April returned a negative result for the presence of methylamphetamine.

[13] The laboratory test results for the samples collected on 2 April were received by the employer on 4 April and confirmed the presence of methylamphetamine at a level of 607 micrograms/litre (ug/L). The detection cut off level being 150ug/L.

[14] On Friday 4 April, once the employer had received the laboratory test result, it telephoned the applicant and advised her that the laboratory result confirmed the onsite test detection of methylamphetamine. At that time the applicant was apparently not told of the specific 607ug/L figure, but was instead advised that the laboratory result had confirmed the presence of methylamphetamine.

[15] On Tuesday 8 April, the employer contacted the applicant and requested that she attend a meeting on Thursday 10 April at the Mine site in order to discuss the drug test result and the surrounding investigation. The applicant advised that she had an appointment with her Doctor scheduled for Thursday and was anticipating that the results of the pathology testing would be provided at that appointment. Further discussions between the applicant and the employer resulted in two female management representatives of the employer attending the Doctor’s appointment having obtained the consent of the applicant to be present at that consultation.

[16] Following the Doctor’s appointment the applicant and the female management representatives who had attended the Doctor’s appointment drove to the Mine site for the meeting as had been previously arranged. However, that meeting was cancelled by the employer and the employer advised the applicant that it would be re-scheduled for the following day, Friday 11 April.

[17] At about 7:15 pm on Thursday 10 April, one of the management representatives who had attended the Doctor’s appointment with the applicant earlier that day, visited the applicant’s residence and hand delivered a letter to the applicant. The letter confirmed that the applicant was required to attend a meeting the following day at the Mine site to “...show cause as to why your employment should not be terminated following this undisputed breach of a Cardinal Rule.” 1

[18] On Friday 11 April, the applicant was accompanied by her mother and a local CFMEU representative when she attended the “show cause” meeting at the Mine site offices. During this meeting the employer’s HR managers asked the applicant about the drug test result which had confirmed the presence of methylamphetamine. The applicant maintained that she had not knowingly taken methylamphetamine and the only explanation that she could offer involved the suggested drink spiking on the Saturday night/Sunday morning immediately preceding the test.

[19] The applicant pleaded her innocence and suggested to the employer that other employees had failed a single drug test and had not been dismissed. The applicant (and her representatives) urged that the employer not dismiss her, and particular mention was made of the financial hardship that the applicant would suffer if she lost her high paying employment. The meeting was adjourned to enable the employer’s management representatives to discuss and consider the issues advanced by and on behalf of the applicant. When the meeting resumed the applicant was told that her employment was summarily terminated for the established breach of a cardinal rule.

[20] The applicant was subsequently provided with a letter of dismissal dated 14 April 2014, which confirmed that the employer had determined that the applicant had breached the cardinal rule of “Never consume or be under the influence of alcohol or non-approved drugs in the workplace” and that no mitigating factors had been identified.

[21] Strangely, the letter of dismissal stated, inter alia, “Your employment will be terminated effective from 6th April.” 2 The purported retrospective operation of the applicant’s dismissal was the subject of a payment adjustment which was not made until after the issue was examined during the Hearing on 8 and 9 September. The applicant has not obtained alternative employment.

The Case for the Applicant

[22] Mr Endacott from the CFMEU appeared for the applicant and made verbal submissions in addition to documentary material that had been filed earlier. Mr Endacott submitted that the applicant presented as a truthful, honest and reliable witness. Mr Endacott submitted that the Commission should accept the evidence of the applicant.

[23] According to the submissions made by Mr Endacott, the factual matrix that surrounded the reason for the termination of employment of the applicant was not complicated. Mr Endacott said that the applicant had been summarily dismissed for a breach of a cardinal rule specifically relating to a finding that the applicant had been under the influence of a non-approved drug in the workplace.

[24] Mr Endacott submitted that the applicant did not feel that she was under the influence of any drug and that she felt perfectly well at the commencement of work on 2 April. Mr Endacott submitted that as the applicant was summarily dismissed, there was an onus on the employer to establish that the applicant was under the influence of a non-approved drug. In this respect, it was submitted by Mr Endacott that the employer had not provided evidence to properly establish that the applicant was under the influence of methylamphetamine. Mr Endacott said that this was particularly the case because the expert evidence provided by Dr Lewis categorically rejected any suggestion that the recorded level of the presence of methylamphetamine at 607ug/L could be translated into a level of impairment.

[25] Consequently, according to the submissions made by Mr Endacott, the evidence established that the applicant did not attend for work in an impaired state or under the influence of the drug. Therefore, because of the summary nature of the dismissal, the employer was required to prove that the applicant was under some sort of influence of the drug and it had not done so. Therefore it was submitted by Mr Endacott that the employer had not properly established a valid reason for summary dismissal.

[26] Further, Mr Endacott submitted that the evidence of the applicant which provided explanation for the presence of methylamphetamine on 2 April should be believed and that the applicant was an unfortunate victim of a drink spiking incident. On the applicant’s version of events she was an innocent victim of a drink spiking incident and according to the submissions of Mr Endacott, this represented a significant mitigating factor. Alternatively, Mr Endacott also submitted that even if the applicant had willingly and knowingly taken the drugs then the particular circumstances of the termination of employment would not have justified summary dismissal.

[27] Mr Endacott made further submissions which were highly critical of certain aspects of the employer’s procedure which involved the determination and implementation of the dismissal of the applicant. Mr Endacott submitted that the “backdating” of the dismissal to 6 April was a reflection of the employer’s predetermined state of mind. Further, Mr Endacott made submissions which stressed that the decision to dismiss which was taken by the relevant onsite management representatives on 11 April, had not been made in accordance with the employer’s own policy which required that the HR manager, Mr Goos, must be consulted before any decision to dismiss was made.

[28] In further submissions, Mr Endacott said that the applicant had not been provided with an adequate opportunity to respond to the “show cause” letter which had been hand delivered to her on the evening before the applicant was required to attend the meeting at which she was subsequently dismissed. Mr Endacott reiterated his earlier submissions that the process that the employer had adopted displayed a predetermined decision to dismiss the applicant and was therefore flawed.

[29] Mr Endacott also submitted that the expert evidence of Dr Lewis could not be accepted as being conclusive. Mr Endacott suggested that the scientific studies which had been relied upon as the basis for the expert opinion of Dr Lewis did not involve any high dose, illicit use of methylamphetamine. Therefore, according to Mr Endacott, it would have been possible for the applicant to still have had the level of methylamphetamine present on 2 April (607ug/L) as a consequence of the drink spiking incident of the preceding weekend.

[30] Mr Endacott made further submissions which focused upon particular personal factors of the applicant which he said established that the dismissal was particularly harsh. In this regard, Mr Endacott mentioned that the applicant was a female working in a predominantly male environment and would have difficulty obtaining other employment that attracted similar rates of remuneration. The applicant also had a generally good work record and that she suffered from a minor mental disability relating to a bipolar disorder.

[31] Mr Endacott summarised his submissions by concluding that the dismissal of the applicant was unfair because the employer had not established a proper basis for what was relied upon as the valid reason for a summary termination. Further, Mr Endacott submitted that deficient process surrounded the employer’s determination to dismiss the applicant, and the particular personal circumstances of the applicant rendered the dismissal to be harsh. Mr Endacott urged that the applicant be reinstated to her former position with no loss of continuity and compensation. Mr Endacott also mentioned that the applicant would be prepared to be subject to regular and ongoing drug testing if she was to be reinstated.

The Case for the Employer

[32] The employer was represented by Mr Goos who submitted that the dismissal of the applicant was not unfair. Mr Goos made oral submissions which elaborated upon documentary material that had been filed on behalf of the employer.

[33] Mr Goos submitted that there was clear valid reason for the dismissal of the applicant whereby she was found to have breached one of the employer’s cardinal rules in respect to attending work under the influence of a non-approved drug in the form of methylamphetamine. Mr Goos submitted that the CFMEU on behalf of the applicant had attempted to use technical arguments to oppose the proper operation of a fundamental breach of a cardinal rule.

[34] Mr Goos submitted that the expert evidence of Dr Lewis was not intended to be directed towards any assessment of the level of impairment of the applicant, but instead it unequivocally established that the applicant must have been under the influence of methylamphetamine when she attended for work on 2 April. Mr Goos stressed that there was no contradictory expert evidence led on behalf of the applicant and that the conclusions made by Dr Lewis should be considered as the best expert scientific evidence available to the Commission.

[35] According to the submissions made by Mr Goos, Dr Lewis’s report had established that the applicant’s version of events providing explanation for the presence of Methylamphetamine should be rejected. Mr Goos stressed that as Dr Lewis had found that it was implausible that the level of Methylamphetamine (607ug/L) present in applicant’s sample obtained on 2 April was the result of a single dose administered approximately 80 hours earlier.

[36] Mr Goos further submitted that in addition to the scientific evidence which discounted the applicant’s version of events regarding an explanation for the presence of the methylamphetamine, there was a complete lack of any evidence from other witnesses to support the applicant’s version of events. Mr Goos submitted that the applicant had concocted a story in an attempt to conceal her drug taking. It was submitted that the applicant’s version of events was a fantastic assertion designed to disguise her own recreational use of methylamphetamine.

[37] Mr Goos further submitted that the dismissal of the applicant was for a breach of a cardinal rule which has critical safety implications for the welfare of all those who work at the Mine. Mr Goos stressed the importance that the employer placed upon safety of its workforce and the actions of the employer in dismissing the applicant for breach of a cardinal rule, demonstrated how critical it considered its obligations to protect the lives of workers.

[38] Mr Goos made further submissions which acknowledged the error contained in the letter of dismissal dated 14 April 2014. Mr Goos said that the letter of dismissal included a simple error with the date of termination being incorrectly recorded as 6 April rather than 11 April. Mr Goos submitted that this simple error had no relevance to the state of mind of anyone who was involved in the decision to dismiss the applicant. Further, Mr Goos said that the error had been rectified and a payment adjustment had been made once the employer had fully appreciated the significance of the error contained in the letter of dismissal.

[39] In conclusion, Mr Goos submitted that there was no basis to find that the applicant had been unfairly dismissed. Mr Goos submitted that the dismissal of the applicant had been for valid reason related to the safety of Mineworkers. Mr Goos said that any decision that might favour the applicant would only harm her former work colleagues. Mr Goos submitted that any procedural defects in respect of the dismissal of the applicant had either been rectified or when balanced against the valid reason for dismissal, were of little consequence. Mr Goos said that any decision in favour of the applicant would not be a win for fairness but would instead diminish the safety of Mineworkers. Accordingly, Mr Goos urged that the application be dismissed.

Consideration

[40] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.

[41] In this case there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[42] In this case there was no dispute that the applicant had failed a workplace onsite drug test which was subsequently confirmed by laboratory testing to establish the presence of methylamphetamine at the level 607ug/L. The Australian standard for cut-off reporting of methylamphetamine is 150ug/L.

[43] The applicant was dismissed for breaching what the employer has described as a cardinal rule involving attending the workplace under the influence of a non-approved drug. Consequently, the reason for the dismissal of the applicant must be considered in the context of a serious breach of a workplace alcohol and drug testing regime.

[44] Workplace drug and alcohol testing regimes are mechanisms which improve safety for workers. Individuals who attend a workplace like the Mine under the influence of drugs or alcohol endanger the lives of other workers.

[45] Workplace drug testing regimes will operate with enhanced success if any disciplinary consequences arising from specific test result failures are applied firmly but fairly. The circumstances of each individual case should be considered on its own facts and merits without the adoption of an inflexible zero tolerance approach.

[46] Therefore, the particular circumstances of the applicant which involved a confirmatory laboratory test result of the presence of methylamphetamine at 607ug/L, should be approached from a perspective that acknowledges that: (a) workplace drug and alcohol testing is an important safety protection which benefits workers, and; (b) disciplinary action arising from a confirmatory drug test result should as a general practice, encourage rectification and avoid any automaticity for dismissal.

[47] The applicant’s confirmatory test result was, on any objective assessment, a matter for alarm. Although it was the applicant’s first positive test result, the presence of a drug such as methylamphetamine at a level 4 times the reporting cut-off figure, would seem to represent unambiguous serious misconduct that would justify summary dismissal.

[48] Once the employer had received the confirmatory test result there would have been an understandable propensity for it to dismiss the applicant without further inquiry. However the employer is to be commended for its preparedness to conduct further investigations into any potential mitigating factor(s) which may have provided explanation for the presence of methylamphetamine in the applicant’s sample taken on 2 April.

[49] Notwithstanding the underlying good intentions, on reflection, the level of involvement of the two female management representatives who attended the applicant’s Doctors consultation on 10 April, probably amounted to overzealous participation which should be strongly discouraged. The level of concern for the applicant was in large part generated by the explanation she had proffered for the presence of the methylamphetamine which involved the drink spiking incident of the preceding weekend.

[50] Although the confirmatory drug test result provided a prima facie valid reason for dismissal, the employer was implicitly prepared to contemplate that if it could be satisfied that the methylamphetamine had been surreptitiously introduced into the applicant’s body, then dismissal of the applicant would not be appropriate as she had been an innocent victim of drink spiking.

[51] The employer contemplated the applicant’s explanation and heard from her further. Although, as at 11 April 2014, it did not have any scientific evidence about the length of time that methylamphetamine might remain in the human body, the employer assessed the potential veracity of the applicant’s explanation against the confirmed drug test result and decided that there was insufficient mitigation which might impact upon the severity of the breach of the alcohol and drug testing regime. In such circumstances, at the time that the decision to dismiss was taken on 11 April, the employer had established to the requisite standard of proof, a valid reason for the summary dismissal of the applicant. Therefore, it would seem that the employer’s decision to dismiss would only be disturbed if at Hearing it was subsequently proven, on the balance of probability, that the applicant had the methylamphetamine introduced into her body via the drink spiking incident as she had suggested.

[52] During the Hearing of this matter the expert scientific evidence which was provided by Dr Lewis has established compelling basis to support the valid reason for dismissal. Regrettably for the applicant, the scientific evidence clearly establishes significant implausibility for the prospect that a single dose of methylamphetamine would be detected in a urine sample after a period of some 80 hours at a level of 607ug/L. Further, the absence of any other evidence to support the applicant’s proposition regarding the alleged drink spiking incident must operate to discount the applicant’s explanation for the presence of methylamphetamine in her sample taken on 2 April.

[53] The proposition that was advanced by the CFMEU that the level of methylamphetamine detected in the applicant’s urine sample did not conclusively establish that the applicant was under the influence of a non-approved drug must be bluntly and conclusively rejected. The employer described this proposition as a technical argument, it can also be characterised as irresponsible and discreditable.

[54] It was highly regrettable to observe during the Hearing that an organisation which apparently conducts campaigns which strongly advocate safety in the workplace, could contemplate a proposition which, in effect, would countenance a person driving a 580 tonne truck whilst having methylamphetamine in their body at a level 4 times the reportable cut-off figure. Any realistic and responsible pursuit of the case on behalf of the applicant should have been confined to the development of evidentiary support for the applicant’s explanation for the presence of the methylamphetamine. Indeed, much greater energy and focus should have been devoted to such an evidentiary position rather than any attempt to defend the indefensible.

[55] Consequently, the applicant was dismissed for valid reason. The nature and severity of the misconduct of the applicant has provided justifiable, valid reason for summary dismissal.

387 (b) - Notification of Reason for Dismissal

[56] The employer provided verbal and written notification of the reason for the applicant’s dismissal. Unfortunately for the employer, the letter of dismissal contained a significant date error. The mistake, which caused the dismissal to have a retrospective application, must render the dismissal, as and when it occurred, to be unreasonable.

[57] The employer has subsequently rectified the consequences of the purported retrospective dismissal.

387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[58] The employer required the applicant to attend a meeting on 11 April to show cause as to why she should not be dismissed for a breach of a cardinal rule. There was some justifiable criticism regarding the hand delivery of the show cause letter on the evening before the meeting was held.

[59] The process for providing an employee with an opportunity to respond to reasons that might form the basis for a proposed dismissal should ensure that adequate time is allowed to permit the employee to properly prepare any defence. All of the circumstances surrounding the employment including: the nature of the basis for the proposed dismissal; the time that may have elapsed since the employment was identified to be in jeopardy; the level of representation available to the employee; and any request for an extension of time; are matters which are relevant to any assessment as to whether any opportunity to respond was reasonable and appropriate.

[60] Accordingly, on balance, in the circumstances of this case, there was an adequate and appropriate opportunity for the applicant to consider and respond to the allegations which were set out in the show cause letter.

387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[61] There was no refusal to allow the applicant a support person(s) to assist.

387 (e) - Warning about Unsatisfactory Performance

[62] This factor has no relevance in this instance.

387 (f) - Size of Enterprise Likely to Impact on Procedures

[63] The size of the employer’s operation has not been a factor of any consequence to the determination of the matter.

387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[64] The employer did have dedicated employee relations management specialists who were involved in the process that led directly to the dismissal of the applicant.

387 (h) - Other Relevant Matters

[65] There were a number other matters which have required some further consideration.

[66] Firstly, certain personal circumstances of the applicant were advanced as being factors which rendered the dismissal to be harsh. These personal circumstances have been considered and balanced against, in particular, the valid reason for dismissal and the safety implications which underpin the basis for the dismissal.

[67] The personal circumstances of the applicant, in particular, the financial impact of the dismissal, must be properly and responsibly balanced against the ramifications for the safety of other workers at the Mine which would flow from any perceived or actual lowering of the standards which apply to the employer’s alcohol and drug testing regime.

[68] Secondly, the dismissal was made to apply retrospectively and as such must be unreasonable. The evidence as to why the letter of dismissal dated 14 April, which confirmed the decision verbally conveyed on 11 April, but nominated the date of dismissal to be 6 April, has established an explanation of genuine mistake. There was no particular event or other reason for Sunday 6 April to have any relevance to the dismissal of the applicant.

[69] The employer has subsequently made pay adjustments to reflect the correct date of dismissal as being 11 April. However, it is unlikely that the rectification, which was considerably delayed, could transform a dismissal which contained a manifestly unreasonable element to become “not unreasonable”.

[70] The error which was made with the date of dismissal was subsequently but belatedly rectified. This issue must be assessed as being only one element relevant to any concluded finding as to whether the applicant was entitled to any relief in respect to an unfair dismissal. In simple terms, in the circumstances of this case, the substantive reason for dismissal with its attendant safety implications, strongly outweighs an element of process mistake.

Conclusion

[71] The applicant was dismissed for serious misconduct involving a breach of the employer’s drug and alcohol regime. The nature of the established breach of the drug and alcohol regime has been described as a breach of a cardinal rule. The cardinal rule being that no employee is to attend the workplace under the influence of a non-approved drug.

[72] The applicant recorded a confirmatory laboratory test reading of the presence of methylamphetamine in urine at a concentration of 607ug/L. This test result is more than 4 times the reporting cut-off level of 150ug/L. This test result would of itself, provide valid reason for the employer to terminate the employment of the applicant. This test result was appropriately treated as a prima facie serious risk to the safety of fellow workers.

[73] In this instance the employer exercised highly commendable discretion and contemplated that some mitigating factor(s) may have operated such that the drug test result of this level and nature might not unavoidably produce a dismissal, but instead attract some less severe form of disciplinary action. In particular, the employer contemplated the prospect that the applicant had methylamphetamine introduced into her body surreptitiously.

[74] Following further consideration, the employer decided that there were no mitigating factors which might provide basis for an outcome other than dismissal. Upon Hearing, there has been strong evidentiary support, particularly in the form of expert medical opinion, which has supported the decision of the employer. There was been little, if any, evidence to support the applicant’s explanation for the presence of methylamphetamine.

[75] Consequently, the substantive reason for the applicant’s dismissal has been confirmed to be valid.

[76] The dismissal of the applicant included a degree of manifest unreasonableness as a result of a process mistake involving the retrospective date of operation of the dismissal. However, this element of unreasonableness, when assessed against all the circumstances, does not provide any basis to attract remedy for unfair dismissal.

[77] Similarly, other matters relating to the personal circumstances of the applicant should not diminish the seriousness that must be maintained against contraventions of a workplace alcohol and drug testing regime. Any such diminution endangers the lives of other workers.

[78] The dismissal of the applicant was not harsh, unjust or unreasonable. Consequently, the application for unfair dismissal remedy is dismissed.

COMMISSIONER

Appearances:

Mr K Endacott from the CFMEU appears on behalf of the applicant;

Mr J Goos, together with Ms K Ether appeared on behalf of Downer EDI Mining Pty Ltd

Hearing details:

2014.

Sydney:

September 8, 9

October 2, 24

 1   Exhibit 1 - Annexure ‘TLC-5’.

 2   Exhibit 1 - Annexure ‘TLC-6’.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR560029>