DECISION

Fair Work Act 2009
s.394 - Unfair dismissal

Nicholas Hafer
v
Ensign Australia Pty Ltd T/A Ensign International Energy Services
(U2015/10423)

Application for relief from unfair dismissal- whether valid reason - breach of drug and alcohol policy – whether harsh unjust or unreasonable - applicant denied procedural fairness - prejudice of procedural deficiencies outweighed by need to mitigate workplace risks - application dismissed.

1. Background and case outline

[1] On 5 September 2015, the applicant, Mr Nicholas Hafer lodged an application pursuant to s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer Ensign Australia Pty Ltd T/A Ensign International Energy Services Australia Pty Ltd (Ensign).

[2] Mr Hafer was dismissed from his employment after he returned a positive test result for drugs, in breach of Ensign’s “zero tolerance” drug and alcohol policy which formed part of the terms and conditions of his employment.

[3] At the time of his dismissal, Mr Hafer was engaged as a Derrickhand, working at the Santos Moomba Gas Fields, performing drilling services for Santos, a client of Ensign. Mr Hafer had been employed by Ensign for 3 years and 11 months at the time of his termination.

[4] Mr Hafer’s application was unable to be resolved through the conciliation process. The application was referred to me for determination and was the subject of hearings on 1 and 16 December 2015.

[5] Mr Hafer was represented by Mr Hegarty of counsel. Ensign was represented by Mr Manos of counsel. Permission to appear was granted to both parties pursuant to s.596(2) of the FW Act.

[6] Mr Hafer contended that there was no valid reason for his termination for several reasons:

● Mr Hafer does not use drugs;
● Mr Hafer was not impaired by drugs whilst at work;
● the first sample and its subsequent testing was unreliable; and
● the secondary test conducted at the request of Ensign returned a negative result.

[7] Mr Hafer further contended that his dismissal was harsh, unjust or unreasonable and argued that:

● Ensign did not ask Mr Hafer to explain the positive test result;
● the initial Santos drug test was not a test required by Ensign or carried out in accordance with the Fitness for Work and Other Drug Policy and Testing Procedure (Fitness for Work Policy;
● the Urine Drug Testing Form completed by the Santos tester indicated that the screening device used for the test had expired, which was evidence of poor quality control in the testing process and called into question the validity of the test result;
● Mr Hafer was not provided with the Santos sample and the failure to invite Mr Hafer to retest the Santos sample denied him procedural fairness;
● Ensign had an obligation to investigate the validity of the negative test result but did not do so;
● Ensign did not take steps to address the disparity between the two tests results depriving Mr Hafer of procedural fairness; and
● reliance on the Santos test alone without investigation or independent verification further deprives Mr Hafer of procedural fairness.

[8] Mr Hafer sought compensation as a remedy for his dismissal.

[9] Ensign contended that there was a valid reason for the termination of Mr Hafer’s employment as:

● Mr Hafer’s actions constituted serious and wilful misconduct within the definition contained in the Fair Work Regulations 2009;
● Mr Hafer’s conduct was in breach of the terms and conditions of his employment;
● the test conducted by Santos was conducted in accordance with the Australian Standard AS/NZS 4308:2008 (Australian Standard) at the time of collection and testing and therefore there is no basis to undermine its quality;
● the positive test result was a breach of the “zero tolerance” approach to drugs provided by the Fitness for Work Policy;
● the “zero tolerance” approach is warranted given the type of worked being performed by Ensign employees, the heavy machinery used and potential risk to health and safety that arises from the work being performed;
● Mr Hafer was aware of the zero tolerance policy and its consequences; and
● the decision to terminate based on the Santos test was made for several reasons:

• it was conducted by a specialist in the field of drug testing using a method which complied with the Australian Standard;



• the Ensign test was not conducted in a controlled environment; and



• the Ensign test indicated that the sample may have been diluted.

[10] Ensign further contended that Mr Hafer’s dismissal was not unfair, for several reasons:

● during the time between when the test was taken and his termination Mr Hafer had an opportunity to respond to Ensign’s concerns before a final decision to terminate was made;
● Mr Hafer at no time provided a reason for returning a positive drug test and appropriate inferences can be drawn as to why an explanation was not be offered;
● any procedural deficiencies in this case are overcome by the very serious nature of the misconduct, the opportunity Mr Hafer had after the screening test to explain his position and the lack of prejudice that arose; and
● although Ensign did not engage in conventional procedural fairness, it would not have altered the outcome.

[11] Ensign contended that the dismissal was not harsh, unjust or unreasonable and sought that the application be dismissed accordingly.

2. The evidence

[12] Mr Hafer provided a witness statement and gave evidence in the matter.

[13] Ensign provided witness statements and led evidence from the following persons:

● Ms Kate Heyden, Personnel Coordinator - South Australia;
● Mr Peter Koutsoukos, Oil & Gas Division Manager - South Australia; and
● Mr Anthony Hehir, Managing Director of Work Safe - South Australia.

3. Facts

[14] The following facts in relation to the matter are not in dispute between the parties.

[15] The applicant worked on a drilling rig, a large complex piece of equipment which, if uncontrolled is capable of causing serious injury or death. Rigs operate in demanding physical conditions in remote locations. The safety and wellbeing of each crew member is dependent upon the actions of other crew members.

[16] The danger posed by the operation of the rig is mitigated by the requirement that crew members follow established policies and procedures, are fit for work, remain vigilant and focussed on risk management and their task. A lapse in judgement can result in serious injury or death.¹

[17] The terms and conditions of Mr Hafer’s employment were provided by a contract of employment dated 27 October 2011.² The contract incorporated the Ensign Collective Agreement 2009. In 2014 this agreement was replaced by the Ensign Australia Pty Ltd Onshore Drilling Employees Enterprise Agreement 2014 (Agreement).³

[18] Sub-Clause 2.8(i) of the Agreement requires employees to:

“obey all Ensign and client safety rules, policies and procedures, policies or training requirements’ and at sub clause (ii) ‘comply with all policies and procedures referred to in the Ensign International Energy Services Inc. Australian Operations Policy Handbook and the GRMS Policy Handbook as amended from time to time.”

[19] The GRMS Policy refers to the Fitness for Work - Alcohol & Other Drug Policy. The detail of which is contained in Ensign’s Fitness for Work and Other Drug Policy and Testing Procedure (Fitness for Work Policy). This Policy adopts a “zero tolerance” approach towards drugs and alcohol due to the high risk nature of the workplace and the work carried out. The Fitness for Work Policy provides for random or for cause testing and states:

“2. SCOPE

This Policy applies to all Ensign ‘Workplaces’ and to all ‘Workers’ who enter or are present at such Workplaces.

Where Workers perform work for Ensign in a workplace that is not owned or operated by Ensign including but not limited to workplaces outside Australia, workers must comply with any policies, procedures, laws or regulations applicable at the workplace…

3. POLICY

Ensign has a policy of “zero tolerance” towards drugs and alcohol presence in Workers and use or possession by any Worker or Visitor at the Workplace due to the high risk nature of the Workplace and the Work carried out…

4. CONTRAVENTION

Any Worker in contravention of this Policy may be subject to disciplinary action up to and including dismissal or termination of engagement as relevant…” 4

[20] On 29 March 2014, Mr Hafer signed a copy of the GRMS Policy acknowledging receipt.⁵ Mr Hafer gave evidence that he was aware of the zero tolerance approach and knew that termination was the likely outcome of a breach of the policy. 6

[21] In August 2015, the Rig to which Mr Hafer was assigned became inoperable and as a result Mr Hafer had been stood down and not worked for some weeks.

[22] On 30 August 2015, Mr Hafer was contacted by Ensign and offered work on Rig 971 due to the unavailability of a crew member. Mr Hafer accepted the assignment and travelled to the Moomba site by air, arriving on the morning of 31 August 2015.

[23] Upon his arrival at the site, Mr Hafer was advised that he had been selected for a random drug and alcohol test. At 10.10 am, a breath analysis and urine sample (the Santos sample) was taken by a Medvet representative on behalf of Santos. The breath analysis did not detect the presence of alcohol. The drug screening test produced a positive result to Methamphetamine, THC and Amphetamine.⁷ A copy of the Urine Drug Testing form was provided to Mr Hafer.⁸ The Santos sample was sent to Racing Analytical Services Ltd, a National Association of Testing Authorities (NATA) accredited laboratory for analysis.

[24] Later that morning, Ms Kate Heyden, Ensign Personnel Coordinator, was advised of the positive test result by Santos. Ms Heyden arranged for Mr Hafer to fly back to Adelaide that afternoon.

[25] Ms Heyden also arranged for Mr Hafer to undertake a secondary drug test at the Adelaide Walk-in Clinic upon his arrival to Adelaide. Mr Hafer provided a urine sample (the Ensign sample) to Dr Randy Juanta at the clinic at 6.44 pm. A screening test of that sample provided a negative result. The balance of the sample was sent for further analysis to Adelaide Pathology Partners. Dr Juanta provided a WorkCover Medical Certificate which stated that Mr Hafer was fit to return to pre-injury workplace duties on 31 August 2015.

[26] On 1 September 2015, the Ensign sample was tested by Adelaide Pathology Partners.⁹ The sample was not found to contain Amphetamine type substances or Cannabinoids. The report noted that the Creatinine level of less than 1.8mmol/L in the sample may indicate a diluted sample, and recommended that a repeat sample should be requested. This did not occur.

[27] On 2 September 2015, the Santos sample was tested in accordance with Australian Standard by Racing Analytical Services Pty Ltd, and a Drug Screening Certificate was issued.¹⁰ The sample was found to contain Amphetamines at a level of 895ug/L (against a threshold of 150 ug/L) Methamphetamine at 1162ug/L (no threshold detailed) and Cannabinoids (11-nor-delta-9-tetrahydrocannabinol-9-carboxlic acid) at a level of 34 ug/L (against a threshold of 15 ug/L). The Creatinine level recorded on the Drug Screening Certificate was 847 mg/L with a dilute specimen defined as containing Creatinine at or below 200mg/L.¹¹

[28] On 2 September 2015, Ensign received the analysis results of both the Santos and Ensign samples. The results were reviewed by Cheryl Thom, HR Team Lead who discussed the matter with Mr Peter Koutsoukos, Oil and Gas Division Manager. Mr Koutsoukos deemed the Ensign sample to be unreliable and found that only Santos sample result should be relied upon. Mr Koutsoukos determined that Mr Hafer should be advised of the results of the test and that the termination of his employment should proceed, and instructed Ms Thom to advise Mr Hafer accordingly.

[29] At about 5.00 pm on 2 September 2015, Ms Heyden in accordance with instructions from Ms Thom telephoned Mr Hafer and advised him of the positive results of the laboratory analysis of the Santos sample. Ms Heyden then terminated Mr Hafer’s employment and confirmed that he would be paid for the period in between the taking of the Santos sample and its analysis.

[30] Mr Hafer protested against the termination of his employment and sought a meeting with Mr Koutsoukos. Ms Heyden responded by saying “this is it Nick, this is the phone call.”¹² Mr Hafer told Ms Heyden that if that was to be Ensign’s approach he would challenge the dismissal.¹³

[31] During the telephone call, a further conversation occurred between Ms Hayden and Mr Hafer. The contents of this conversation are disputed, this is discussed in paragraph [36].

[32] In cross-examination Mr Koutsoukos conceded that there was no formal meeting held where the allegations and the proposed disciplinary outcome were put to Mr Hafer for comment.¹⁴

[33] On 7 September 2015, Mr Hafer was provided with letter of termination signed by Ms Thom. This letter stated that Mr Hafer’s employment with Ensign had been terminated because he tested positive to Amphetamine, Methamphetamine and THC in breach of the Fitness for Work Policy, his obligations under the Agreement, and the provision of a safe working environment. The termination took effect from 2 September 2015. ¹⁵

[34] On 5 September 2015, Mr Hafer filed an application under s.394 seeking an unfair dismissal remedy.

[35] Mr Hafer has not been able to secure full time employment since the termination.

3.1 Disputed Conversation between Ms Heyden and Mr Hafer at the time of termination

[36] In her statement, Ms Heyden contended that at the time she telephoned Mr Hafer to advise him that his employment would be terminated, Mr Hafer, stated “well it would have been out of my system if I had started work at midnight.” 16 This recollection was challenged during cross-examination. Ms Heyden was firm in her recollection of the discussion and insisted that she was not mistaken. Mr Hafer did not refer to this conversation in his statement but in cross examination contended that he had said “I wasn’t to be starting work until midnight that night.”17 Mr Hafer denied using the words attributed to him by Ms Heyden. Having had the opportunity to observe the demeanour of the witnesses I prefer the evidence of Ms Heyden on this point. On that basis I also find that Mr Hafer was (or should have been) aware that he may have failed a drug test if it was administered on the day of his arrival at site.

3.2 Which test should be preferred?

[37] At the hearing Mr Hafer contended that there was no valid reason to terminate based on the negative results analysis of the Ensign sample. Ensign contended that the Ensign sample was unreliable and that only the Santos sample results could be relied upon.

[38] Ensign called Mr Anthony Hehir as an expert witness and submitted two statements as his evidence in chief. His evidence was unchallenged.

[39] Mr Hehir gave evidence that the date on the drug testing kit was in the American date format therefore, the test kit had not expired at the time of testing but expired at the end of August 2015.

[40] Mr Hehir’s reviewed the test results of the Santos and Ensign samples and recommended that Ensign rely on the results taken from the Santos sample. The basis for that recommendation was that the Santos Sample was tested by a NATA accredited laboratory. Further, Mr Hehir contended that there were a number of deficiencies in the reliability and testing of the Ensign sample, as the test results did not specify the cut off levels used and whether the test was conducted under the Australian Standard for drug testing. Furthermore, the Creatinine level in the test results indicated that the Ensign sample had been compromised and was unreliable.

[41] Mr Hehir submitted that the Creatinine level could be reduced by ingesting a large amount of water prior to the test or by diluting the sample. In his opinion it would be unlikely for a person to test positive at the level disclosed in the Santos Sample and to then test negative later that same day.

[42] Whilst there were a number of questions asked in respect of the taking of the Santos sample, there was no evidence presented before me which indicated that the Santos sample was obtained in a manner that could have resulted in it being contaminated, or that the analysis was not performed in accordance with the Australian Standard.

[43] I find that the Ensign test was unreliable and am not prepared to accept the results of that test in establishing that the Santos analysis results were incorrect.

[44] I accept the Santos test and analysis as reliable.

[45] I make no finding as to how the Ensign sample became diluted.

4. What the dismissal harsh unjust or unreasonable?

[46] Pursuant to s.387 of the FW Act, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

“(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.”

[47] I have considered each of these factors in reaching a conclusion in this matter.

Valid Reason - s.387(a)

[48] Notwithstanding its formulation under a different legislative environment I have adopted the definition of a valid reason set out by Northrop J in Selvachandran v Peteron Plastics Pty Ltd,¹⁸which states:

“In its context in s.170DE(1), the adjective "valid" should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reasons must be valid in the context of the employee's capacity or conduct or based upon the operational requirements of the employer's business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must 'be applied in a practical, commonsense way to ensure that the employer and employee are treated fairly.”

[49] The Applicant contended that there was insufficient evidence to support a summary termination. In my view this overstates the onus on the employer. The test in s.387(a) of the FW Act does not require that the employee’s conduct justified summary dismissal, or was “serious misconduct,” or whether the employer had a right to dismiss at law. 19

[50] The Applicant contends that in the absence of intent to breach Ensign’s agreement and policies, there was no valid reason for dismissal. In my view there is no requirement for the Respondent to establish intent on behalf of the Applicant. In any event, at Paragraph [36] I have found that the Applicant was (or should have been) aware that there was a risk that had he been tested his arrival at the Santos site, he would have failed the test.

[51] Mr Hafer’s counsel referred to the use of the word “wilful” in the termination letter and submitted that Ensign had an obligation to show that the conduct complained of was wilful in order to have a valid reason for termination. I do not agree that this is correct in law. In my view, in order to establish a valid reason Ensign must demonstrate that Mr Hafer breached the Fitness for Work Policy, not that any breach was wilful or constituted serious misconduct.

[52] Ensign’s Fitness for Work Policy required compliance with client policy’s whilst at site. No objection has been raised in respect of the entitlement of Santos to conduct the random test.

[53] The results of the analysis of the Santos sample detected the presence of Amphetamines, Methamphetamine and Cannabinoids. I have not been persuaded that the manner in which the Santos sample was obtained has adversely impacted its reliability. I have concluded that the analysis result is evidence of the presence of Amphetamines, Methamphetamine and Cannabinoids in Mr Hafer’s system at the time of the test. In my view, the contradictory results of the Ensign sample analysis has been appropriately explained and does not dissuade me from accepting the result of the Santos sample analysis.

[54] Based on the evidence before me, on the balance of probabilities, I find that at the time Mr Hafer arrived at the Santos site Mr Hafer had Amphetamines, Methamphetamine and Cannabinoids, in his system in breach of the terms and conditions of his employment. In my view this represents a valid reason to terminate Mr Hafer’s employment.

Notification of valid Reason - s.387(b)

[55] An employee protected from unfair dismissal must be advised of a valid reason for termination prior to the decision being made. In Crozier v Palazzo Corporation Pty Ltd ²⁰the Full Bench of the Australian Industrial Relations Commission dealing with a similar provision of the Workplace Relations Act 1996 stated the following:

“As a matter of logical procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”

[56] Although Mr Hafer was aware of the conduct that had put his employment at risk, the decision to terminate his employment was made by Ensign prior to him being advised verbally on 2 September 2015. I am not satisfied that Mr Hafer was formally notified of the reason of his termination prior to his dismissal. Ensign should have met with Mr Hafer, formally advised him of the Santos test result and that it was proposing to terminate his employment and sought his response.

Opportunity to respond - s.387(c)

[57] An employee protected from unfair dismissal must be given an opportunity to respond to the reasons for termination prior to a decision to terminate is made. 21

[58] Mr Hafer was aware of the positive result of the initial screening of Santos sample, the zero tolerance approach to drugs and alcohol and that the likely outcome of a breach was dismissal. 22 I find that Ensign failed to formally put the results of the laboratory analysis of the Santos sample, the reasons why the Santos sample was relied on over the Ensign sample and its proposed disciplinary outcome of termination to Mr Hafer prior to the final decision being made.

[59] Ensign admitted this failure at the commencement of the hearing.

[60] The Applicant contended that this breach rendered the dismissal harsh, unjust or unreasonable.

[61] At the hearing Mr Hafer was given an opportunity to put forward what he would have said to Ensign had he been afforded an opportunity to respond to the potential termination. Mr Hafer stated that:

“I would have demonstrated to him [Mr Koutsoukos] how seriously I take my job and how much it means to me and I would have also demonstrated to him just how much I've achieved in my life and that to be able to achieve those sorts of things that I've done would no way be possible if drugs were a part of my life or even if I even considered it.  I'm a highly qualified scuba diving instructor, I do a lot of cave diving, rock climbing, mountaineering, and there is no place for drugs in my life.  Yes, I would have conveyed that to him, to the fullest extent…” 23

[62] Although Ensign failed to give Mr Hafer an opportunity to respond to the reasons for termination, I do not believe Mr Hafer’s response would have had any bearing on the outcome of the disciplinary process had this been put to Ensign prior to dismissal. The explanation offered by Mr Hafer does not give a satisfactory explanation for how the positive reading was obtained and is inconsistent with the statement I have found 24 that Mr Hafer made to Ms Heyden.

Any unreasonable refusal to allow a support person - s.387(d)

[63] Whilst no issue was taken at the hearing on this requirement, the manner in which the termination decision was conveyed precluded Mr Hafer seeking a support person.

Warnings relative to unsatisfactory performance - s.387(e)

[64] There was no allegation of unsatisfactory performance.

Size of the employer’s business - impact on procedures - s.387(f)

[65] Ensign is not a small business. This is not a relevant consideration in this matter.

Size of the employer’s business - access to human resource management expertise - s.387(g)

[66] Ensign is not a small business and I am satisfied that it had available to it, and utilised, human resource management expertise. This is not a relevant consideration in this matter.

Other matters considered relevant - s.387(h)

[67] The applicant contended that the failure to provide Mr Hafer with a portion of the Santos sample was a denial of procedural fairness. Mr Koutsoukos’ unchallenged evidence was that Santos was prepared to provide Mr Hafer a portion of the sample on request. 25 Ensign advised Mr Hafer that he could approach Santos directly. There was no evidence that Mr Hafer pursued that option. In the circumstances I am unable to find that Mr Hafer was denied access to his Santos sample and that it resulted in a denial of procedural fairness.

5. Conclusion

[68] The Explanatory Memorandum to the Fair Work Act 26 explains the approach of the Commission in considering the elements of section 387:

“FWA must consider all of the above factors in totality. It is intended that FWA will weigh up all the factors in coming to a decision about whether a dismissal was harsh, unjust or unreasonable and no factor alone will necessarily be determinative.”

[69] In Byrne and Frew v Australian Airlines Pty Ltd, ²⁷ the following observations made by McHugh and Gummow JJ are relevant to my conclusion:

“It may be that the termination is harsh but not unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[70] I further note that in Sharp v BCS Infrastructure Support Pty Limited  28the Full Bench stated that:

“…employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable. Likewise, depending on all the circumstances, it may be reasonably open to find that a dismissal effected pursuant to such a policy was not unfair.”

[71] I have taken into account all submissions and evidence. Although there were procedural defects in the conduct of the termination meeting, in my view this did not affect the outcome of the termination.

[72] In this case, I have found Mr Hafer was aware that there was a risk that he may have failed a drug test. Mr Hafer engaged in a number of discussions with human resources during the period of his suspension whilst awaiting the test results. While Mr Hafer may have been buoyed by the negative test result of the Ensign sample, he should have been aware of the qualification on its reliability and that if Santos test result was positive his employment would most likely be terminated.

[73] In this matter, Mr Hafer stated that if he had been formally asked to respond to the test results he said he would have told Ensign that he did not take drugs. It is highly probable that Ensign would have terminated his employment on the basis that drugs were present in his system when he reported for work. Whilst it would have been preferable in this case for Ensign to have put the allegations and proposed disciplinary outcome to Mr Hafer for comment, I believe the outcome would have been the same.

[74] If I take into account my finding that Mr Hafer was aware that there was a risk that if tested before the commencement of his shift, he would have returned a positive result, it appears that Mr Hafer gambled that he would not be tested and in this case lost.

[75] The evidence before me is that risks to safety in the drilling industry are high, a lapse in judgement can result in serious injury or death. The zero tolerance drug and alcohol policy and the likely consequences of a breach was well known to Mr Hafer. In my view, the prejudice resulting from of the procedural deficiencies is outweighed by the need to ensure a safe workplace.

[76] Having considered each of the factors detailed in s.387 of the FW Act, both individually and collectively, I do not consider that the termination of Mr Hafer’s employment is harsh, unjust or unreasonable.

[77] The application will be dismissed accordingly. An Order 29 reflecting this decision will be issued.

COMMISSIONER

Appearances:

M Hearty of counsel, with permission, for the applicant.

A Manos of counsel, with permission, for the respondent.

Hearing details:

2015.

Adelaide:

December 1, 16.

1 Exhibit R2 - witness statement of Peter Koutsoukos at [6]-[14].

2 Exhibit A6 - offer of employment letter dated 27 October 2011.

3 Exhibit A7 - Ensign Australia Pty Ltd Onshore Drilling Employees Enterprise Agreement 2014, AE409791.

 4   Exhibit A8 - “Fitness for Work” Alcohol and Other Drug Policy and Testing Procedure - Version 2, February 2013.

5 Exhibit R1 - bundle: GRMS Policy Handbook 2014 (dated 3 February 2014) and acknowledgment receipt of said handbook signed by Mr Hafer (dated 29 March 2014).

 6   Transcript PN352- 356.

7 Exhibit A5 - original yellow copy of urine drug testing form.

8 Ibid.

9 Exhibit A2 - inbox report dated 31 August 2015.

10 Exhibit A10 - Racing Analytical - Drug Screening Certificate, signed by Bianca Alessi dated 2 September 2015.

11 Ibid.

12 Transcript PN221.

13 Transcript PN222.

14 Transcript PN657.

15 Exhibit A11 - letter of termination of employment dated 7 September 2015.

 16   Transcript PN848.

 17   Transcript PN385.

18 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.

 19   Sharp v BCS Infrastructure Support Pty Limited  [2015] FWCFB 8205.

20 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [73].

 21   RMIT v Asher (2010) 194 IR 1 [26]-[30]; Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 22  Transcript PN352-356.

 23   Transcript PN542.

 24   At paragraph [34].

 25   Transcript PN746.

 26   Explanatory Memorandum to the Fair Work Bill 2008 at [1541].

27 Byrne and Frew v Australian Airlines Pty Ltd (1995) 185 CLR 410 at 465.

 28   PR560985 at [24].

 29   PR577302.

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