[2009] FWA 1874

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FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

COMMISSIONER RAFFAELLI

SYDNEY, 15 JANUARY 2010

Termination of employment.

[1] This decision concerns an application made pursuant to section 394 of the Fair Work Act 2009 by Mr Stephen Langman (the Applicant) for an order granting a remedy concerning his alleged unfair termination by Kooregah Pastoral Pty Ltd (the Respondent). The matter was dealt with at a hearing, my having been satisfied of the matters in section 399(1).

[2] There was agreement between the parties as to several facts. The Applicant had been employed from 10 June 2008 as a truck driver and farm worker. Then, in about July 2009, the Applicant was to begin to perform carting of material from the Peak Gold Mines facility. The Respondent had a contract to perform cartage from Tritton Mines, the parent of Peak Gold Mines.

[3] It was also agreed that Tritton and the Respondent, each had a drug and alcohol free workplace policy. The Applicant was aware of such policy.

[4] On 8 July 2009, he was drug tested by the mine operator. This was a fairly simple test which was described as a colour test. The Applicant failed the test.

[5] He was then required to provide a urine sample which was forwarded to a laboratory.

[6] In accordance with the mine’s policy he was unable to enter the facility until he was cleared as drug free.

[7] The Applicant informed the Respondent of this on that day, although the Respondent seems to have been told of the incident by the mine on the same day.

[8] Discussion on 8 and 9 July 2009 occurred between the Applicant and Mr Roger Sheather (the Respondent’s principal) and including their respective spouses.

[9] Ultimately, the Respondent decided to terminate the employment of the Applicant on the basis that his failing of the drug test on 8 July 2009 rendered him incapable (due to the policy of the mine) of performing the work allocated to him by the Respondent.

[10] About one week later on 14 July 2008, the Sonic Healthcare laboratory provided test results of the Applicant’s urine (exhibit L2). This indicated that a level of 58 ug/L of cannabis was detected. The mine’s cut-off level was 15 ug/L.

[11] The Applicant agreed that he had failed the test. However he submitted that when he contacted the laboratory later, he was informed that 58 ug/L was extremely low and was consistent with passive smoking (albeit of a past long-term user). Active cannabis use, he was told, would return results of 4 to 5000 ug/L.

[12] In his evidence the Applicant said that he did not have an explanation for the reading and that it could only have been the result of passive smoking among his acquaintances. He also stressed that he was on parole and would never have risked jeopardising his freedom by using drugs.

[13] He considered that while he was unable to return to cartage work at the mine (until cleared) the Respondent should have given him other general farm work.

[14] Mr Sheather gave evidence that apart from some intermittent farm work there was no living wage opportunities on offer performing farm work. The Respondent’s property was severely affected by the drought and its only going concern was the contract with the mine.

[15] All three witnesses (the Applicant’s wife also gave evidence) were forthright and helpful and I have considered what they put.

Determination

[16] Section 385 provides that a person has been unfairly dismissed “if FWA is satisfied that:

(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.”

[17] In this matter, subclauses (a), (c) and (d) are not in issue. Here Fair Work Australia needs to determine if the dismissal was harsh, unjust or unreasonable.

[18] Section 387 provides that:

“In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA 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 FWA considers relevant.”

[19] I intend to take into account the matters referred to in section 387 where they are relevant.

[20] As to whether a valid reason existed for the termination of the Applicant’s employment due to his failing the drug test, it is clear that in most situations a failure of a drug test will provide a valid reason for termination particularly where a drugs policy is well developed and made known to employees.

[21] I was concerned that the effective date of termination was said to be 8 July 2009. This was before the urine test result was available. If termination had actually occurred then, this might have been significant. But an analysis of all the evidence indicates that the Respondent and Applicant were engaged in several discussions after 8 July. The Applicant was informed of the Respondent’s decision after the urine results were available.

[22] In my view, given the Respondent’s policy and that of the mine and the Applicant’s awareness of such, his failing the drug test provides a valid reason for his termination and I so find.

[23] I am also satisfied that the Applicant was notified of the reason for his termination and given an opportunity to respond.

[24] Section 387(d), (e), (f) and (g) do not require any meaningful attention in the case at hand.

[25] As to any other matters of relevance, I consider that Mr Sheather had a genuine but possibly erroneous view as to Tritton’s attitude to the Applicant. In his evidence he stated that the mine would never have him back. There is no evidence of this. Indeed the Peak Gold Mines Alcohol and other Drugs Management policy (exhibit L6) reveals that if its employees fail the second (i.e. urine) test they are to be stood down without pay. They are to remain so, up to a period of three months during which they can prove their drug-free status. After three months (without a drug-free test being taken), presumably, termination may occur.

[26] In my view, the Respondent acted prematurely in terminating the Applicant. He could have been utilised on other work or stood-down without pay.

[27] Taking all the findings into account I consider that the Applicant’s termination was unreasonable.

[28] Having so found and given what I said before, I am also satisfied pursuant to section 385 that the Applicant was unfairly dismissed.

[29] Section 390 provides that Fair Work Australia may order the Applicant’s reinstatement or the payment of compensation. In this case I am satisfied of the necessary preconditions set out in section 390(1) and (2).

[30] I have had to consider whether or not in the circumstances the Applicant ought to be re-instated. I note the Applicant’s submission that work is available. However, I prefer the evidence of Mr Sheather who says that no such work is available. Due to the economic difficulties faced, the cartage work being performed at the mine, which the Applicant used to be engaged in, is being performed by Mr Sheather and his son.

[31] In those circumstances, I find it inappropriate to order reinstatement.

[32] Pursuant to section 390(3)(b), I consider that in all the circumstances of the case it is appropriate to make an order for the payment of compensation.

[33] The order for the payment of compensation is in lieu of reinstatement.

[34] In determining the amount of compensation, section 392(2) sets out matters that must be considered. I give consideration to those matters as follows:

[35] While the Respondent says that it is suffering financially including from drought conditions I find that any order as to compensation will have no meaningful effect on the Respondent’s business.

[36] The Applicant was employed for only about thirteen months.

[37] As to the remuneration that the Applicant would have received or have been likely to receive but for the termination of employment, this is always a speculative consideration.

[38] In this regard, I note that the Applicant provided evidence of another set of laboratory tests that he underwent on his initiative (exhibit L3). His evidence was a little confused as to when he took such tests. The exhibit reveals that a test occurred on 14 July 2009 where cannabis was detected. Another test on 29 July 2009 revealed no trace of cannabis. That would suggest that at least from 29 July 2009 he was drug free. It might be said that but for the termination he could have continued to be gainfully employed soon after 29 July 2009.

[39] On the other hand, Ms Renfrew the Respondent’s solicitor made some telling points about exhibit L3. Firstly, the Applicant had never shown such to the Respondent. The Respondent only received it in the past few days consequent upon Fair Work Australia directions.

[40] Secondly, the results and the circumstances surrounding them fail to meet any reasonable chain of custody procedures. She made the valid point that exhibit L3 does not establish that it was the Applicant who presented himself for testing and the circumstances of how the samples were taken.

[41] The Applicant’s evidence as to his recollection of when the tests occurred was somewhat vague. This included that some tests may have occurred as late as November 2009, when this does not seem to have been the case.

[42] However, while for the reasons raised by Ms Renfrew, I cannot accept the drug-free result as at 29 July 2009 as conclusive, it may have been true. Or, it may not.

[43] Either way, the Respondent should have given the Applicant some extra weeks to provide a clear result. I do not consider that this very small employer should have kept the Applicant “on the books” for three months, as the mine does. However, it should have given the Applicant a further two weeks to clear himself. As to whether in those two weeks, he would have been given some paid employment is hard to determine. Certainly there would have been no ongoing paid opportunities in farm work. However I consider, on balance that at least two weeks paid work would have been probable.

[44] But for the termination, the Applicant would at least have earned two weeks work at his usual rate, and I so find.

[45] The Applicant has sought to mitigate his loss by securing alternative employment.

[46] I have given consideration to the matters set out in section 392(e) and (f).

[47] On the basis of the consideration of all the matters here relevant to section 392 I have decided to order compensation of an amount of two weeks pay.

[48] Finally, I indicate that in deciding this matter I have given consideration to the need to ensure that a fair go all round has been provided to the Respondent and Applicant.

[49] An order reflecting this Decision is in PR992131.

COMMISSIONER

Appearances:

S. Langman for himself.

L. Renfrew, solicitor for the Respondent.

Hearing details:

2009.

Orange:

December 14.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR992119>