[2011] FWA 6993

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FAIR WORK AUSTRALIA

DECISION

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

Mr Wayne Daley
v
GWA Group Ltd T/A Dux Hot Water
(U2011/7604)

COMMISSIONER DEEGAN

CANBERRA, 13 OCTOBER 2011

Termination of employment for first and only breach of drug and alcohol policy - whether harsh, unjust or unreasonable - remedy of reinstatement ordered.

[1] This matter is an application for a remedy for unfair dismissal lodged by Mr Wayne Daley (the applicant) on 4 May 2011 in respect of the termination of his employment by GWA Group Ltd trading as Dux Hot Water (the employer or Dux).

[2] Following an unsuccessful conciliation conference on 6 June 2011 the matter was listed for hearing on 5 September 2011.

Background

[3] The facts of this matter are largely agreed. The applicant was employed by Dux for almost 16 years. His employment was terminated on 21 April 2011 as a consequence of his having breached the company’s drug and alcohol policy (D&A policy). The applicant was, together with a number of other employees, subjected to a random drug and alcohol test shortly after commencing his shift at 7 am on 20 April 2011. When tested the applicant returned a blood alcohol reading above the 0.02% limit prescribed in the employer’s D&A policy. The applicant’s reading was determined to be 0.076%.

[4] The applicant was suspended on pay following the initial test conducted on 20 April.

[5] On 21 April the applicant, accompanied by a union representative, attended a meeting with Dux representatives to discuss his breach of the D&A policy. At the conclusion of the meeting the applicant’s employment was terminated on the basis of the breach of policy.

[6] There was no dispute that there was a valid reason for the applicant’s dismissal. The applicant claimed that the termination of his employment was harsh, in the circumstances, and a disproportionate reaction to the breach of the policy.

The applicant’s evidence

[7] According to the applicant’s statement of evidence 1 he is 55 years old and commenced permanent employment with Dux in May 1995, having been made redundant by the abattoir where he had worked for the previous 25 years. He was employed as an (unqualified) trades assistant with Dux, performing tasks related to the manufacture of hot water tanks.

[8] According to the applicant he had finished work on 19 April shortly after 3 pm. He had then driven home, completed some household chores, cooked himself dinner and then watched television until retiring to bed at about 10.30 pm. It was the applicant’s evidence that he had drunk “several” beers between 4 pm and 10 pm.

[9] The applicant stated that when he woke on 20 April he did not feel adversely affected by alcohol. He drove to work, arriving at about 6:13 am for his 7 am start. At about 7.45 am he was working, operating a machine used to lift water tanks, when he was approached by a supervisor who informed him that he had been selected for a random drug and alcohol test. He completed the test, consisting of a breath test and a saliva test. He tested negative for drugs but returned a 0.076% blood alcohol reading.

[10] It was the applicant’s evidence that he was aware of the drug and alcohol policy and the fact that it was designed to protect workers’ safety. He accepted that he had breached the policy. Following the termination of his employment, the applicant had been unable to find other work in Moss Vale, where he had lived his entire life, given his limited education and lack of qualifications. He also had residual disabilities from a car accident some years before.

[11] At the hearing the applicant’s evidence was that he had not consumed an alcoholic drink for a period of four months. The applicant tendered a letter 2 from his doctor who had been treating him since his dismissal confirming that the applicant had ceased drinking and that “his liver function has returned to normal”. It also noted that blood tests had confirmed the applicant’s abstinence. The applicant stated that he had made a mistake and was attempting to fix the problem by no longer drinking.

[12] When cross-examined the applicant agreed that there were many workers employed in the manufacture of water tanks at the Dux site in Moss Vale. He also agreed that the manufacturing process involved the use of heavy machinery. He was shown photographs and a sketch of his workplace included in the evidence of the respondent. The applicant described his role in the manufacturing process using the photographs and the sketch. Having described the process he agreed that if he was not focussed or concentrating while performing his tasks he would be exposed to a safety risk, as would the workers around him. He was taken to the employer’s drug and alcohol policy and asked if he agreed with a number of the statements contained in it. He agreed that the use of drugs and alcohol had the ability to affect an individual’s capacity to safely perform their job and put the safety of others at risk. He also agreed that, under the policy, if he had known he was affected by alcohol he was required to report the fact to his supervisors.

[13] It was the applicant’s evidence that he was aware that the threshold for alcohol breath testing was 0.02 grams of alcohol per 100 millilitres of blood and that this was a lower level than that prescribed for the safe operation of a car on public roads. Similarly he was aware that the employer’s D&A policy stated, under the heading “First Positive Test”, that current employees would be counselled and that a manager would determine any disciplinary action required, up to and including termination.

[14] The applicant agreed that he:

[15] The applicant reiterated that he could not remember the exact number of beers he consumed on the evening before the test but denied his lack of memory was due to the amount of beer he had consumed. It was his evidence that he had had drunk no beer on the morning before the test. He strongly denied having drunk as many as 13 or 14 full strength beers the previous evening. The applicant also denied that he was aware that he was over the limit when he drove to, and commenced, work on the morning of 20 April. He claimed that until he was tested he believed he was “alright”.

[16] The applicant conceded that he had operated the manipulator crane and the shaker machine in the presence of other workers on the morning of 20 April. He did not concede that he was drunk at the time but agreed that he had drunk alcohol the previous evening.

[17] It was the evidence of the applicant that he had been informed by Dux that his employment was to be terminated as he had breached the enterprise agreement and the D&A policy. He also agreed that he had had a blood alcohol level above 0.07 and presented a safety risk to himself and his workmates.

[18] The applicant denied that he had made no efforts to find other work, indicating that he had put his name down with a number of employment agencies and attended a number of interviews.

[19] Mr Arthur Potter, an AMWU delegate at the Dux Moss Vale site, filed a statement of evidence 3 in support of the applicant’s claim. Mr Potter had been employed at Dux since 1993 and had worked closely with the applicant for about 5 years until the applicant was transferred to another worksite about three or four years prior to his termination. It was Mr Potter’s evidence that the applicant was a punctual, hard-working employee who got on well with his workmates. Mr Potter participated in the meeting that occurred immediately after the drug and alcohol testing on 20 April and at the meeting on 21 April which culminated in the termination of the applicant’s employment.

[20] Mr Potter was not required for cross-examination.

The Employer’s evidence

[21] Mr Steven McCrae, the employer’s Operations Manager at the Moss Vale site since 2009, filed a statement of evidence. 4 His evidence described the process, begun in 2009, through which Dux adopted the D&A Policy which commenced on 14 February 2011. Mr McRae’s evidence also covered the training that was provided to all the employees prior to the commencement of the policy. He noted that the random testing commenced from 14 February 2011.

[22] Mr McRae stated that prior to the positive test the applicant “had not come to my specific attention”. He claimed he had not been aware that the applicant had a “poor attendance record” until he reviewed the applicant’s attendance record after the dismissal.

[23] When cross-examined Mr McRae confirmed that the decision to terminate the applicant’s employment was his alone and that he had reviewed the applicant’s work record before making the decision. The witness conceded that the record showed that the applicant had never been given a warning for either performance or conduct in the 16 years he had been employed by the company.

[24] Mr McRae was also questioned about why he considered the applicant’s attendance record to be poor. He was taken to the records and confirmed that it appeared that, in respect of unpaid absences and sick leave, both certificated and uncertificated, the applicant was:

[25] Mr McRae was also asked about the Dux’s D&A Policy which referred to the consequences of an employee returning a first, second and third Positive Test. He did not agree that the policy contemplated that an employee might not be dismissed until returning a third positive test.

[26] It was put to Mr McRae that the only unsafe thing the applicant had done during his employment with Dux was to attend work on 20 April 2011 when over the prescribed blood alcohol limit. Mr McRae responded that the applicant had operated machinery on that day. He conceded, however, that the reason for the termination was that the applicant had commenced work over the prescribed blood alcohol limit that day, and on the same day had gone to his local pub. When asked if that is why he claimed that he had lost trust and confidence in the applicant Mr McRae replied that it was his view that the applicant had been negligent, and that he had turned up for work “obviously intoxicated…putting himself and his workmates at risk”. 5

[27] Finally, Mr McRae conceded that he was not able to say whether employers in the Moss Vale region were looking to hire employees with the applicant’s skills.

[28] Ms Brooke Carter, the Dux Moss Vale site Return to Work and Safety Coordinator, described in her statement of evidence 6 the process by which the Dux D&A Policy was adopted. It was Ms Carter’s evidence that she encountered the applicant immediately after his test on 20 April and claimed that he smelled strongly of alcohol. She was directed to drive the applicant to his home a little later.

[29] According to her evidence Ms Carter again encountered the applicant that same day. About 12.30 pm when she was having lunch with a colleague at a local hotel. At that time she saw the applicant drinking beer at the bar. Ms Carter claimed that the applicant asked her not to tell anyone that she saw him there.

[30] When cross-examined Ms Carter conceded that she did not know how many beers the applicant had drunk at the hotel on 20 April.

[31] Mr Ian Jameson, Managing Director of Integrity Sampling (NSW), filed a statement of evidence 7 setting out the role of his company in conducting drug and alcohol testing, particularly for Dux. Mr. Jameson’s evidence also covered the training provided to Dux employees in relation to the D&A policy.

[32] It was Mr Jameson’s evidence that he had been conducting drug and alcohol tests for the company since 2004 and had, prior to that, been a crime investigator with the NSW police force for 25 years, where “certain aspects” of the position involved drug and alcohol testing. He claimed that he had conducted thousands of drug and alcohol tests and agreed that alcohol affects different people in different ways, depending on a number of variables including body weight, body mass and food consumption.

[33] Mr Barry John Ryan was the Drug and Alcohol screening officer employed by Integrity who conducted the random tests at the Dux site on 20 April 2011. His evidence 8 described the screening method used for the test conducted on the applicant.

[34] According to Mr Ryan the applicant was one of ten employees randomly selected for a test from all the employees on shift on the morning of 20 April. It was also his evidence that when the applicant presented for his test he was “nervy, agitated, had a flushed face and smelt strongly of intoxicating liquor”. 9

[35] When cross-examined Mr Ryan stated that he had been working for Integrity Sampling since 2010 performing an average of 10 drug and alcohol tests a week. He had previously been employed in the police force for 35 years.

[36] Mr Ryan conceded that people get “nervy” and agitated when undergoing drug testing and many people being tested may have flushed faces. He also agreed that a person with such symptoms will not automatically return a positive test. Mr Ryan reiterated his claim that the applicant smelt strongly of intoxicating liquor at the time of his test.

Submissions for the Applicant

[37] It was put that termination of the applicant’s employment was harsh for a number of reasons.

[38] It was submitted that the D&A policy clearly contemplated that an employee might return three positive tests prior to being dismissed, which implied that termination after one positive test might be disproportionate to the conduct involved. Further the applicant relied on his length of service (16 years) and his good work record over that time. He had received no warnings for any misconduct or performance issues. Finally, it was put that the termination was harsh on account of the applicant’s personal circumstances. The applicant was 55 years old with few qualifications and little education. He lived in a regional area with few employment opportunities for a person with his limited skills. In addition, there was evidence that the applicant suffered a number of physical disabilities which would affect his ability to obtain employment.

[39] It was the applicant’s submission that, despite having made efforts to obtain alternative employment, including visiting employment agencies on a weekly basis, he had been unable to find another position.

[40] The applicant’s representative relied on a number of authorities 10 to support his contention that a dismissal could be found to be harsh despite there being a valid reason for that dismissal.

[41] In relation to the matter of reinstatement, it was put that the applicant had suffered as a result of his dismissal. He had been unable to find work. It was also submitted that the applicant was contrite, had been a credible and truthful witness, had admitted responsibility for his mistake and had since abstained from alcohol. It was put that the applicant, in stating that he could not recall how many beers he had had on the evening of 19 April, was being truthful - he simply could not recall the exact number.

[42] The representative for the applicant noted the contents of documents marked Annexure 2 and Annexure 3 which were attached to the Outline of Submissions filed by the Respondent. The documents appeared to be publications of the Australian Drug Foundation and contained the following statements:

[43] It was put that on the basis of these statements, which were documents the respondent sought to rely on, it was clear that the Respondent’s contention that the Applicant must have consumed a certain number of standard drinks in order to return a test result indicating a 0.76% blood alcohol level, was not supportable. Any number of variables could have affected the result.

Submissions for the Employer

[44] It was the employer’s case that the termination of the applicant’s employment should not be found to be unfair, as either he decided to take the risk of attending work, knowing that he had consumed a significant amount of alcohol the previous day and with absolute disregard for safety, or he was wilfully blind to the consequences, not even turning his mind to the issue of whether he was above or below the limit.

[45] Further, it was put that despite his expressed contrition for his actions the applicant had not accepted responsibility for his consumption of alcohol on day before the random test. In those circumstances it was submitted that his expression of contrition and remorse should be regarded with caution or rejected.

[46] So far as the applicant’s lengthy service was concerned it was argued that this should not be a factor which excused the applicant’s conduct but that as a long serving employee he should have known better, given that he was aware of the A & D policy. Similarly, it was put that the personal consequences of termination are present in every case and should not be permitted to override cases where there is a strong, valid reason for the termination and particularly where issues of safety are critical.

[47] According to the employer the applicant’s evidence concerning the amount of alcohol he consumed on the day prior to the test should not be accepted as the “only rational inference that could be drawn was that he had consumed a substantial amount of alcohol on 19 April, something in the order of 13 standard drinks”. 11

[48] It was the employer’s view that reinstatement of the applicant was not an appropriate remedy as the applicant had “not accepted responsibility for his actual conduct” and had not accepted the “true extent of his misconduct”. For these reasons it was put for the employer that there was no trust and confidence between the applicant and the company.

[49] Finally, the employer took issue with the claim that there were no job opportunities available for the applicant, noting his acceptance under cross-examination that he had picked up skills through the course of his employment, his admission that he had not looked in newspapers for other positions, and his evidence that there were jobs available although “he might have to travel a slightly longer distance than the less than five minutes’ travel he had to Dux’s manufacturing plant at Moss Vale”.

Consideration

[50] There is no question in this matter that the applicant is a person protected from unfair dismissal for the purposes of s.382 of the Act. In determining whether the dismissal was unfair I must have regard to those matters set out in s.387 of the Act.

Section 387(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)

[51] The parties agree that there was a valid reason for the termination of the applicant’s employment. He had breached the employer’s A & D policy by returning a blood alcohol reading of 0.76 in a random test conducted in accordance with that policy.

Section 387(b): Whether the person was notified of that reason

[52] There is no dispute that the applicant was notified of the reason for his termination.

Section 387(c): Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[53] The applicant was given an opportunity to respond to the reason for his termination at a meeting conducted at the employer’s premises on the day after the random test was performed. The applicant was notified in advance that the meeting would be held.

Section 387(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

[54] The applicant was supported at the termination meeting by a representative of his union.

Section 387(e): If the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[55] The dismissal did not relate to unsatisfactory performance by the applicant. It was solely on the basis of his breach of the A & D policy.

Section 387(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

[56] The employer has in excess of 100 employees in New South Wales.

Section 387(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

[57] It was Ms Carter’s evidence that there is no Human Resource Manager at Dux. Ms Carter’s position is that of Return to Work Safety Coordinator. She reported to Mr McNair, the Safety, Training and Environment Manager, at the time of the dismissal. Ms Carter holds an Associate Diploma in Human Resources but claimed to take no part in recruitment, discipline or termination of employees- these functions are performed by the relevant manager.

[58] Mr McRae, the Operations Manager, took the decision to terminate the applicant’s employment. Mr McRae and Mr McNair were the only management representatives at the termination meeting on 21 April. The lack of human resources expertise does not appear to have impacted on the procedures followed in effecting the termination of the applicant’s employment.

Section 387(h): Any other matters that FWA considers relevant

[59] There are a number of other matters that I consider should be taken into account when determining whether the termination of the applicant’s employment for breaching the Dux A & D policy was harsh, unjust or unreasonable. They are:

[60] I found the applicant to be an honest and credible witness. I accept his evidence that he does not recall the exact number of drinks he consumed on the evening before the random blood test was performed. He denied that it was as many as 13 cans of beer but could not give an exact number. I do not consider that his failure to do so casts any doubt on his honesty. He accepted the result of the blood test and recognized that he had been wrong to attend at the workplace with a blood alcohol reading of 0.076. That he has ceased to consume alcohol at all is, in my view, an indication of both his contrition and his commitment to not repeating such conduct.

[61] I also accept the applicant’s evidence that he did not believe that he was affected by alcohol such that he should not drive or attend work on 20 April. Clearly he was wrong in that belief but that does not make him any less truthful in stating his belief. For many years citizens of Australia with blood alcohol levels up to 0.08 drove vehicles in the belief that their faculties were sufficiently unaffected by alcohol to allow them to do so and the state supported them in that belief. In the circumstances I can accept that the applicant wrongly believed that he was able to both drive and attend work on 20 April and was not in danger of breaking the law or breaching the Dux A & D policy.

[62] The literature supplied by the respondent concerning the effects of alcohol clearly indicates that each individual is affected differently. It is conceivable that a person with a higher tolerance to alcohol might be less of a danger in the workplace with an alcohol level of 0.076 than a person who is usually teetotal but had a blood alcohol reading of 0.04. Policies cannot be written to suit each individual and it is appropriate for Dux to have a policy which imposes a general limit of 0.02. This does not, however, mean that every breach of that policy should result in the termination of the relevant employee’s employment. Clearly the Dux policy recognizes this fact and allows for up to three breaches before dismissal will definitely occur.

[63] Despite the fact that a number of the witnesses claimed that the applicant smelt strongly of alcohol, there was no evidence that any action he took or any behaviour he displayed indicated that he was under the influence of alcohol. His breach of the policy was discovered as a result of a random test and not because he caused an accident or was noticed by his workmates to be behaving oddly. He may have been lucky or he may have been still capable of performing his duties.

[64] No expert evidence was called to indicate the effect of a blood alcohol level of 0.076 on a male of the applicant’s build and the applicant’s tolerance to alcohol, whatever that may be. The doctor’s letter stated that the applicant’s liver function had returned to normal since he had ceased his consumption of alcohol. It may have been that the applicant’s liver function around 20 April was impaired so that the alcohol he drank on 19 April 2011 did not metabolise at the rate expected of an average male, thus accounting for the discrepancy between a reading taken the following morning and the actual alcohol consumed the prior evening. These matters were not in evidence and I raise them only for the purpose of suggesting that the situation is not necessarily as “black and white” as the employer’s counsel appeared to suggest in his closing submissions.

[65] Despite the employer’s submissions that the applicant’s failure to gain alternative employment was a result of his failure to look in the newspapers or his reluctance to drive an additional 140 kilometres per day (Moss Vale to Goulburn return) in order to take up a position, I accept that the applicant has made considerable efforts to find employment. He has his name down with several employment agencies. His education is limited and his qualifications and skills acquired with Dux may not be easily transferable to other employers. Additionally he has a number of health issues and is 55 years old. I do not consider his employment prospects to be good in the Moss Vale region. I also take into account that travelling an additional 140 kilometres a day might make employment at the minimum wage unviable due to the travel costs involved.

Conclusion

[66] Having taken all the above matters into account it is my view that the termination of the applicant’s employment on the basis of his first breach of the A & D policy was, in the circumstances, harsh. The applicant had 19 years service with an unblemished record. Due to his age, health and lack of education the effect of the termination upon him was more severe than it may have been on a younger, healthier or more highly educated employee. The applicant has demonstrated that he recognises the seriousness of the breach and has ceased to consume alcohol. In my view he deserves at least one opportunity to demonstrate that this is the case.

Remedy

[67] I have found the termination of the applicant’s employment to be have been harsh and therefore, unfair. I consider that I should make an order for the applicant to be reinstated with no loss of continuity of his employment. Because the applicant breached the A&D policy I do not make any order for payment of remuneration lost between the date of the termination and the date he is reinstated.

[68] The reinstatement Order is published separately [PR515639].

COMMISSIONER

Appearances:

Mr Adam Walkaden, AMWU, for the Applicant.

Mr Yaseen Shariff, of counsel, for the Respondent.

Hearing details:

2011.
Sydney:
September, 5.

 1   Exhibit W1.

 2   Exhibit W2.

 3   Exhibit W3.

 4   Exhibit S1.

 5   Transcript PN541.

 6   Exhibit S2.

 7   Exhibit S5.

 8   Exhibit S7.

 9   Exhibit S7 paragraph 11.

 10   Regional Express Holdings Limited t/as REX Airlines v R Richards [2010] FWAFB 8753; GlaxoSmithKline Australia Pty Ltd v Colin Makin [2010] FWAFB 5343; Paul Quinlivan v Norske Skog Paper Mills (Australia) Ltd [2010] FWA 883.

 11   See Transcript PN808, PN813, and PN829.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR515638>