Wayne Roberts v Alcoa of Australia Limited

[2011] FWA 8388

[2011] FWA 8388

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Wayne Roberts
v
Alcoa of Australia Limited
(U2011/8011)

DEPUTY PRESIDENT MCCARTHY PERTH, 2 DECEMBER 2011

Termination of employment.

[1] Mr Wayne Roberts (the Applicant) lodged an application for unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the FW Act) on 19 May 2011, against Alcoa of Australia Limited (the Respondent). I held a hearing of the matter on 8 November 2011 whereby I issued my decision from the bench. I issued an Order dismissing the application on 8 November 2011. These are the reasons for my decision, edited from the transcript.

[2] This matter involves a circumstance where an employee was placed on what in effect was a performance management plan or a fitness-for-work plan, or a drug and alcohol rehabilitation plan, whichever way you want to describe it. It is clear and it is admitted that the Applicant has been a long-term user of cannabis or marijuana. I will use the term “cannabis” for convenience. The fitness-for-work program was aimed at assisting the Applicant to cease using cannabis, and to be given time to eliminate THC readings from tests for drugs use. It was a program he agreed to, and it was a program that I consider to be a fair and reasonable approach for an employer to adopt and apply in circumstances such as this.

[3] The fitness-for-work program also provides a significant degree of self-enforcement, and for occasions that relapses might occur, including the reporting of those relapses. I am satisfied that the testing regime applied and adopted by the Respondent was a professional and properly applied regime. I am also satisfied that the tests undertaken by the Applicant were accurate results of those tests. The fitness-for-work program with respect to the test results showed that on two occasions non-disclosed amphetamines had been taken by the Applicant, and I am satisfied that it is more probable than not that there was usage of cannabis between the 14 March and 18 March results. It is clear and it is admitted that the results at the end of April and positive results for THC, were a consequence of admitted usage of cannabis by the Applicant.

[4] I am satisfied that the Applicant failed to comply with the fitness-for-work plan that had been adopted and applied and understood by him. He failed to comply with the drug testing requirements in respect of disclosure of any usage. However, I am not clear as to whether he did or did not undergo the counselling requirements of the fitness-for-work program because there is unclear evidence as to whether part of that counselling, if not all of it, was deferred by agreement with some of the providers. The Applicant did not comply completely with the testing requirements, nor did he comply with them to a satisfactory degree or level. I am also satisfied that the Respondent did comply and apply its own procedures and requirements to a satisfactory and reasonable level.

[5] I should add that I have found the evidence of the Respondent's witnesses to be straight forward, frank, clear and precise in their recollection of events and how consideration of issues was undertaken, in contrast to the Applicant's evidence, which I found to be vague and unconvincing. I prefer the evidence of each of the Respondent's witnesses over that of the Applicant.

[6] I find that there was a valid reason for the termination of the Applicant's employment relating to his conduct. I am satisfied that he was notified of that reason. Further, he was given the opportunity to respond to that reason. The fitness-for-work programs themselves are evidence of that. The rehabilitation meetings on 25 March, 1 April and 27 April are further evidence of that, as is the meeting immediately prior to and where he was notified of his termination.

[7] I am satisfied that the Applicant was not refused a support person to participate in those meetings, and in particular the last meeting, although it concerns me that he was not advised, and I find that he was not advised, that a support person could be present. That is one element that is a qualification of the preference of the evidence of the Applicant over that of the Respondent, if there is any conflict in that regard.

[8] The Applicant clearly, in regards to the fitness-for-work program, was warned of continued conduct and the potential consequences of that continued conduct. The Respondent is a large employer. I find that the procedures adopted and applied were adequate. The provisions of s.387(g) of the FW Act are not relevant in these proceedings, although I do note that there is a dedicated human resource management specialist or expertise, as one would expect with an employer of this size.

[9] Other matters that are relevant and I have taken into account include the length of service of the Applicant and his apparent good service during the vast majority of that period, with some lapses apparently in the last 12 months. I have taken into account the cooperation, meaning the lack of it, in the fitness-for-work program. Whilst the Applicant intended to portray a willingness to participate in the program, I find that in fact his participation was one of reluctance and one where there was a reluctance, if not a refusal, to recognise the right of the company to have the policy that it had adopted and was applying and its approach to drug usage, whether inside or outside of work, and the implications it may have for the operations of the company.

[10] The Applicant appears to view usage of cannabis, whether long term or recent, to be something that has not and does not impair his performance, a position that the Respondent does not accept and has reasonable grounds, in my view, to not accept. I have also taken into account the personal circumstances of the Applicant and the pressure and what he says was a tense environment that he was confronted with, both from a personal and work perspective at that time. I, in particular, have taken into account as a relevant matter or relevant matters, his attitude towards the fitness-for-work program and accept as an accurate account the evidence of Mr Gleeson. 1 I also took into account alternative forms of discipline the Respondent could have applied rather than dismissing the Applicant.

[11] Taking all of those matters into account and giving them various degrees of weight, I find that the termination of the Applicant's employment was not harsh, unjust or unreasonable and that therefore his dismissal was not unfair.

[12] The application is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr W Roberts on his own behalf.

Mr M Vallence for the Respondent.

Hearing details:

2011.
Perth:
November, 8.

 1   Item 18 on the third dot point of Witness Statement.

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