[2011] FWA 8505

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FAIR WORK AUSTRALIA

DECISION

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

Mrs Wendy Day
v
Sodexo Remote Sites Australia Pty Ltd T/A Sodexo Remote Sites
(U2011/8236)

COMMISSIONER STEEL

ADELAIDE, 7 DECEMBER 2011

Termination of employment - Drug and alcohol testing.

Introduction

[1] This matter concerns the application by Ms Wendy Day (the applicant) pursuant to s.394 of the Fair Work Act 2009 (the Act) for review of her alleged unfair dismissal from employment by Sodexo Remote Sites Australia Pty Ltd (the respondent).

[2] The applicant was employed from 16 August 2010 and dismissed on 18 May 2011 for failing an alcohol test (BAC). The applicant provided duties as a service attendant for her employer at their client’s mine site at Prominent Hill in South Australia. The applicant’s work was covered by the Sodexo Remote Sites Onshore Employee Collective Agreement 2008. The applicant had received a ‘final written warning’ previously on 8 February 2011. Following her returning positive readings of 0.018 and 0.011 within the two tests for BAC on 18 May 2011 she was stood down from work. She was later called to a meeting and handed a letter of termination without discussion. The effective letter of dismissal dated 18 May 2011 states as follows:

[3] The tribunal considers the form of this letter to be less than specific in its purpose. It is a letter of termination effectively, yet is titled “Positive Alcohol Test.” It does not state the applicant is in breach of the noted policies and responsibilities but indicates “the following issues have been raised,” presumably in regard to the applicant’s behaviour or performance in failing the BAC test. It then states “Sodexho does not promote or accept these behaviours.” In the circumstances the tribunal assumes that the respondent was endeavouring to communicate that the failed BAC was a breach of the mentioned policies and codes and therefore considered as not acceptable performance by the employee. The reference to “promote” is confusing in context. The letter then goes on to emphasise the responsibility of the applicant to adhere to “companies standards” (sic) in discharge of her duties. It then states the respondent’s determination that:

The respondent’s policy or policies addressed in the letter of dismissal

[4] Various policies were provided by the respondent. 1 The Drugs and Alcohol Policy is a one-page summary document with an attached procedure for implementation by Sodexo managers and staff. This policy iterates that employees cannot work under the influence of alcohol, prohibited drugs and/or prohibited substances and if they do they are they are subject to disciplinary action.

[5] It continues:

It further states:

It is noted therefore that this policy refers to random imposed testing.

[6] The attached procedures explain the approach to various drugs and types of testing e.g. random testing or reasonable cause testing. They refer also to the before shift start self-testing requirements of the respondent on the employees. They also reflect the respondent has a threshold level of alcohol detection at or above which alcohol is deemed to be “detected” being 0.00 mg/ml and below which alcohol is deemed to be “not detected” being below 0.00mg/ml. 2 It further sets out that a “positive result” is an indication of 0.00 - 0.05% and that an employee recording a positive result will be re-tested after twenty minutes and may go to work if they record a negative reading or shall be stood down if they record a subsequent positive reading.3 A negative result is one defined as a level that is below the level prescribed in 5.6.2.1 of the procedures. The tribunal concludes from this material and the evidence in relation to this policy that a negative result is below zero which is difficult to understand in a practical sense and a positive record level is zero and above zero. The policy does not mention the issue of rounding of results or cut-off levels of indications relative to the various types of equipment in use. The tribunal considers that this policy provides an element of confusion in regard to the threshold levels for detection.

[7] The Drugs and Alcohol policy refers to ‘disciplinary action’ by the respondent. The respondent’s Disciplinary Policy refers to various behaviour within the “Summary Dismissal” section as gross misconduct. Notably it refers to:

The policy does not define “company premises”.

[8] The policy also sets out the requirements as to suspension, investigation, notice, disciplinary hearings, rights to be accompanied, stages of disciplinary action, summary dismissal and appeals. The tribunal notes that in cases of gross misconduct the employee may be dismissed without notice or previous warnings. The tribunal concludes that procedural fairness is not excluded by this policy.

[9] The Code of Conduct Policy is also a one-page summary document as to the appropriate behavioural requirements on employees. It refers to various “safe and healthy environment” requirements and “a duty of care” to carry out their duties with regard to the respondent’s responsibilities to its customers and shareholders.

[10] The Fitness for Work Policy of the respondent has a further Alcohol and Drugs Policy section coded 8070.6.1 and dated November 2008. It states that this policy is to be taken in conjunction with any client policy as proposed, depending on which is more stringent. In the definitions section the zero tolerance and negative result definitions are similar in that they refer to BAC readings of 0.00. They also mention “or a negative result.” The tribunal can but conclude this means a negative result is a reading of 0.00, or a negative result. The “positive BAC reading” definition is now a level of 0.01 or higher. The tribunal concludes this means that readings between a positive reading 0.01 and zero are to be disregarded by the respondent within this policy. This policy is therefore in stark contrast to the former mentioned Drugs and Alcohol Policy and procedures.

[11] In the Performance Management section of this policy it states:

“Any employee or contractor will receive appropriate performance management if a positive drug test or a BAC result of greater than zero on a zero tolerance site or the state limit on all other sites.” 5

It is not identified what is a “state limit.” Such performance management may include verbal warnings, first written warning, second written warning and termination of employment. These are applied dependant on circumstances identified and at the discretion of the company. This would seem to be in tension with the Disciplinary Policy which allows for procedural fairness.

[12] Lastly the flow chart headed the ‘Drug and Alcohol Testing Process’ which is part of the Fitness for Work Policy illustrates the previous policy where a discretion is preserved by the respondent as to what respondent action is applied to employees. However this chart illustrates three scenarios including self-testing when an employee is not sure as to their fitness for work. In the case at hand, from the evidence of the parties it would seem that employees have a mandatory self-test in the presence of management before they are to start work. The flow chart would seem to not have been updated or included such a scenario. The flow chart further provides in an encapsulated box the various disciplinary actions available to the respondent which includes verbal warnings, warnings and termination. The list is presented with the proviso that it is presented in no particular order of action to be taken, is wholly dependant on the circumstances and at the discretion of the company. The tribunal is concerned as to the effectiveness of this as a policy aid to be available and understood by the employees concerned. It does not clearly indicate to employees what the policy determines shall occur at various times. The respondent’s client’s drug and alcohol policy, if such exists, was not provided to the tribunal.

Evidence

[13] Both parties were self represented and the tribunal endeavoured to provide assistance such that they provided the best evidence available as to their respective positions. In that regard the tribunal followed an inquisitorial approach at times to elicit the information and responses of the parties.

[14] The applicant provided submissions and sworn evidence and the tribunal found her a serious and directed witness and generally reliable save for specific incidence of recall.

[15] Mr Scott Martin, Ms Crystal Foster and Ms Kristina Stefanovic provided evidence for the applicant. The tribunal found the witnesses generally reliable within their knowledge of the events save for some issues of recall.

[16] Ms Tanya Roeger and Mr Matt Currie provided evidence for the respondent. The tribunal found them generally reliable as witnesses.

[17] The applicant’s case is to the effect that she received a different policy on induction than the policy identified by the respondent as being applicable at the date of termination. 6 She did not recognise the asserted current Drugs and Alcohol Policy of the respondent.

[18] The applicant says she has also not seen the Fitness for Work Policy except in these proceedings and the respondent agrees saying it is part of the OHS manual. 7 The applicant had seen the Code of Conduct Policy referred to in these proceedings.8

[19] The respondent submitted they provide page summaries of policies to employees and give access to the comprehensive policies.

[20] The applicant, with other employees, was compelled by the respondent to self-test each day before work for BAC. 9 If the applicant “blew a number,” taken to be a positive result, she would report it and be re-tested after approximately twenty minutes. If she returned a further positive test she would be stood down for the day without pay. If the applicant failed a random test she understood she may be terminated.10

[21] The applicant, Mr Martin and Ms Forster gave testimony as to their experiences and knowledge of the testing regime for BAC in the workplace. It is apparent from that testimony they are not knowledgeable as to the accuracy of the equipment in use, nor what is a positive reading on such equipment and what Drug and Alcohol Policy requirements are in place by the respondent. 11

[22] On 8 February 2011, having failed two BAC tests twenty minutes apart, the applicant asserts she was waiting around and was not stood down. The applicant says she did not do a re-test but was sent to work by Ms Roeger. 12 After working for some hours she was stood down for the rest of the day and received a final warning. She was told by her supervisor that at that time it was a new policy.

[23] The respondent says that the applicant was in fact re-tested after a time-period on a third test in which she recorded a zero reading. She was allowed to work then stood down after a few hours. The applicant says in these circumstances she was not given any further information or support by her supervisor. 13

[24] The tribunal finds that the applicant completed a further self-test (her third) in company of her supervisor and she returned a negative reading. She was then allowed to work by the supervisor, apparently in error of the policy alleged to be in place at that time that required she be stood down for the day pending review by management. The employer later imposed a stand-down from work on the applicant.

[25] The applicant received a warning letter from her manager on site two weeks later. This was a first and final warning letter and is much like the dismissal letter referred to above in that it mentions various failures and breaches but only infers the applicant has done so. However it states:

[26] How an issued first and final warning “will result in a final written warning and or dismissal where considered appropriate” is confusing to the tribunal since it continues the discretionary approach asserted by the respondent and undermines the finality of the disciplinary procedure. It indicates that dismissal is discretionary if the applicant re-offends in that the final written warning is applicable only in certain circumstances as determined by the employer. The applicant says she was pressured into signing this letter by her manager. 15

[27] The applicant claims that this first and final warning was unfair and that others were not treated in this way by the respondent. She received no follow up counselling, information or assistance and in May after failing a subsequent BAC test she was dismissed.

[28] Her evidence and the evidence of Ms Foster and Ms Stefanovic all convey that these employees had a contrasting view as to the nature of the Drugs and Alcohol Policy than the view provided by the respondent. The applicant asserts that the Drugs and Alcohol Policy of the respondent calls for more than one warning to be applied and the first warning applied to her should not be subsequently relied upon by the respondent for dismissal. She was supported in this by Ms Stefanovic. There is also apparent confusion as to what is a positive indication on a BAC test and the apparent zero tolerance of the respondent.

[29] On 18 May 2011 the applicant failed a BAC test (two tests) and was stood down for the day. She asserts that she was advised she would be working that day from 6.00 pm in a bar but was then handed a letter of dismissal that afternoon and subsequently put on the plane out of the encampment. There was no meeting or discussion with the respondent. She therefore asserts her dismissal was unfair as she was not given the benefit of a two-strike policy based on the assertion the first warning should not have been a final warning due to the circumstances. She asserts that the respondent is applying their policy unfairly and that specific high status employees are not penalised for breaching the Drugs and Alcohol Policy.

[30] On 18 December 2010, at a toolbox meeting, the new Occupational Health and Safety Policy was handed out in summary form but was not explained to the applicant. She did however acknowledge it on the meeting agenda.

[31] The applicant was called to the dismissal meeting on 18 May 2011 but was not given an indication of the purpose of the meeting. Apparently no discussion occurred as to representation etc. The applicant was not aware of her rights to any appeal mechanism, or it was not discussed. The applicant was not asked for mitigation items and apparently discussion was at a minimum when handed her dismissal letter.

Evidence of Mr Scott Martin

[32] Mr Martin indicated from his personal experience that the respondent company was not consistently applying their policy in regard to BAC readings and he had received a final warning as a consequence when he should not have done so. 16 Mr Martin provided evidence that there exists much confusion about threshold levels for testing and the rounding up of numbers in respect to testing or the disregard of numbers in such circumstances.17 In May 2011 he was given a warning and understood he may be sacked on the next occurrence.18

[33] The tribunal finds that his experience was in fact consistent with the approach taken to the applicant by the respondent. However his testimony highlighted that a level of confusion is apparent in regard to the distinctions and standards of the Drugs and Alcohol Policy of the respondent.

Evidence of Ms Crystal Forster

[34] Ms Forster indicted she was present when the applicant failed two tests then waited with her until she had a third test where she recorded a zero BAC. They both went to work at the direction of the employer. This is inconsistent with the applicant’s testimony but the tribunal has found this to have occurred.

[35] Ms Foster also indicated that she had had more than two tests on occasion and not stood down. 19 She referred to this as occurring under “the old policy”. She referred to the new policy as operating from December 2010. The change being the employee would be stood down for the day whereas she says they were always previously sent to work and were given three warnings including a verbal warning, first warning and then final warning.20

[36] Ms Foster recognised the policy had changed but was not conversant with the current policy though admitting she had signed acknowledging it. She asserts that the new policy was not explained in the toolbox meetings but that employees could access it if they wanted.

[37] Ms Foster asserted that Ms Roeger, the relief Project Manager, was not conversant with the respondent’s Drugs and Alcohol Policy, so how can the respondent expect employees to understand and follow the policy. 21

Evidence of Ms Kristina Stefanovic

[38] Ms Stefanovic gave evidence of her employment on the mine site. She asserts that she has failed BAC tests before but never received warnings. She then said she had, in June 2011, received a final warning with a life of six months. She submitted that she had blown a BAC of 0.008 and was sent to work. Two days later she was told to pack and leave the site for having a positive reading. 22 Ms Stefanovic submitted that she considered the 0.008 to be a negative reading but the employer (the Project Manager) found otherwise.

Subsequently she left the site for two weeks and was then called back to work because the decision was considered an error by the respondent. She thinks it was an error with the machine. The respondent, in this matter, also accepted there had been an error. 23

In September 2011 she flew in to site and was not referred to work and consumed some alcoholic drink with a colleague. However she was then asked to work and admitted to having consumed alcohol. She was tested for BAC, provided a positive reading and was stood down for the day. Sometime later she was dismissed again for failing the mentioned test.

[39] Subsequently Mr Matt Currey contacted her on site and told her not to leave and she went back to work. The respondent indicated they were going to look at the fly-in fly-out roster and the consideration of the travel day being a break day or a work day.

[40] Ms Stefanovic says her understanding of the drug testing policy is that on the first occurrence of a positive BAC reading the employee gets a verbal warning. She showed little knowledge of the policy as submitted by the respondent. She says she has never been directed to the policy by the employer even on the occasions when she has been sacked by them and then reinstated. 24 Ms Stefanovic says she has never been offered counselling or rehabilitation by the employer and has never had a toolbox meeting on the policies.

[41] Ms Stefanovic also provided information of previous tests prior to December 2010 when she returned positive results. To her recollection she was stood down on one occasion and received a written warning of some nature but then seemed not sure of the events in question. The tribunal did not form a view her memory could be relied upon in terms of these events.

The respondent’s case

[42] Ms Nunn, for the respondent, acknowledged the BAC testing approach has changed in the past and was about to change on the issue of rounding of the recorded results and that the respondent was endeavouring to continuously improve the policy to ensure it met the requirements of a safe workplace. 25 Compulsory pre-start testing was applied to all employees, including management, on the site. Ms Nunn submitted that a positive result occurs:

[43] The current policy is a pre-start test with available two tests to blow an acceptable limit. If a test is failed the person is stood down for the day and receives a written warning. There are no verbal warnings applicable and no verbal warning was applicable in February 2011 with respect to the applicant. 27 There was a first and final warning provided to the applicant at that time, similar to Mr Martin’s experience. As a consequence the applicant, in May, having tested positive, failed the test again and was dismissed.

[44] The respondent utilises in the drug and alcohol testing regime a method of rounding, asserted to be based on Australian standards for cut-off levels that would be defined as a zero reading that is rounding to two decimal places. However, it is evident the respondent has some equipment calibrated to record results to more than two decimal places. They are also in the process of changing their equipment to further refine such rounding. 28 The respondent accepted the testing regime applying to the applicant in February 2011 was confusing.29 They also accepted the definitions of positive and negative results in their policy were confusing. 30

[45] The respondent accepted that Ms Roeger made an error in administering the applicant at work in February in respect to the Drugs and Alcohol Policy, however Ms Nunn held to the position that the applicant in February failed the BAC tests and as such she was provided with a written warning. No verbal warning was likely to be given as the respondent’s policy determined it did not provide for such a warning at that time. 31

[46] Ms Nunn explained that it was difficult to write policies when they have so many different requirements by clients and that the documents allow the respondent to alter the procedure at their discretion. 32 The policies form the ideal of the respondent and the discretion allows the respondent to adjust to circumstances accordingly. Ms Nunn accepts that it may be confusing but the policy allows a discretion by management to adjust the approach. However she could not supply the amended form of the appropriate policy that applied at the relevant site as of February 2011.33

[47] The respondent’s evidence is that before December 2010 there was a regime of warnings, both verbal and written, in relation to BAC testing and then in December a new, more vigilant approach was applied to the effect that the respondent may go direct to written final warnings and not the other steps. 34 The respondent asserts the policies provided and referenced in this matter allow them that discretion and that the employees were appropriately informed via management. This was consistently applied to the applicant in that the Drugs and Alcohol Policy and procedures and a disciplinary policy which refers to Drugs and Alcohol Policy and a code of conduct policy, all read together, determine how the employer administers these matters.

Evidence of Mr Matt Currey

[48] Mr Currey’s evidence went to how the disciplinary process was applied to employees at the mine site. Mr Currey explained that the form and severity of response by the respondent was determined by the circumstances of the case, notably the severity of the positive reading. He indicated that verbal warnings were still considered in this process. He also indicated that consideration was given to the safety of the site and the effects of such employees not being fit for work on the site and on fellow employees.

[49] Mr Currey indicated that the tool box meetings were used to roll out the amended policy in December 2010 to employees. It was also to highlight the important issues in the policy, the changes. The respondent assumed that their managers had completed this task.

[50] It was advised that Mr Alex Rouse (the applicant’s manager at that time) never gave the employees, including the applicant the actual policy to hold, but provided a rundown and reference to the combined procedures, the disciplinary policy and the code of conduct. Mr Currey accepts that problems have occurred on site with the policy implementation by the respondent’s security staff and the lack of knowledge by the Acting Operations Manager, Ms Roeger, of the relevant policy. Mr Currey agreed that Ms Roeger allowed the applicant to work on 8 February2011 in the face of Ms Roeger finding the applicant to be unfit and then fit to work. 35 The applicant was then stood down and given a “final warning.”

[51] Mr Currey confirmed in his evidence that he was of the view that Mr Rouse would have provided to employees the statement of drug and alcohol policy and have directed employees to the company website for the full policies. The full policies being the procedures mentioned above. Such information would tell them that disciplinary procedures would be applied to them if they breached the Drugs and Alcohol Policy and to which Mr Currey agreed. Mr Currey however was not aware of the specific changes to the policy that were made in December 2010, but that it has now been emphasised or a “crackdown was occurring.” Mr Currey agreed that his staff would have, in December, briefed the employees on the Drugs and Alcohol Policy, which refers to disciplinary procedures that the employees had access to. 36 He further agreed that such briefing did not go to the provision or explanation of the flow chart previously mentioned or changes to that flowchart.37

Evidence of Ms Tanya Roeger

[52] Ms Roeger gave evidence of the events of 8 February 2011 when she was relieving as Project Manager on site. On that day the applicant had three BAC tests. Two recorded positive results and the third was zero. Ms Roeger made a decision to send the applicant to work because that was what the old policy allowed, that is that employees go back to work when they are fit to work. 38 The new rule of stand-down for the day was in place, but she was not advised of this until 9.30 am by someone in the Human Resources department. She now understands the policy is to stand-down and contact Human Resources.

[53] Ms Roeger stated to her understanding there were three approaches to employees before they lose their job including a verbal warning. 39 She indicated that before December 2010 the policy was different in that employees were not suspended for the day and they got verbal warnings.

Respondent’s submissions

[54] On the second day of the hearing the respondent made various submissions that they had endeavoured to settle the matter under s.390 of the Act in a manner formerly requested by the applicant. The applicant had however refused such an approach and the respondent submitted the case should be therefore characterised as vexatious or frivolous on that basis, presumably under s.587 of the Act.

[55] The tribunal indicated at that time the matter would proceed unless the parties presented a mutual position or the applicant withdrew the application pending some arrangement. Since neither was available, the matter should proceed. The parties were offered the option of further conciliation during the hearing but that offer was declined.

[56] The tribunal is of the view it could not dismiss the applicant’s claim in this scenario under s.587 of the Act given it is difficult to determine without hearing the case to finality the merits of the matter. Further s.587 of the Act is directed to dismissal of an applicant’s claim. It does not seem to be applicable to the scenario where the respondent is putting their hand up to discontinue proceedings and seeking a settlement which has been refused by the applicant. Further s.390 of the Act is directed to the ambit of matters available to the tribunal consequent to the determination of the unfair dismissal claim, not before such determination.

Legislation

[57] By virtue of s.385 of the Act:

Items (c) and (d) are not relevant in this matter.

[58] The criteria that FWA must take into account on considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable are set out in s.387 of the Act as follows:

[59] A valid reason for termination of employment is one which is “sound, defensible or well founded” and not “capricious, fanciful, spiteful or prejudiced.” See Selverchandron v Peteron Plastics Pty Ltd. 40 The reason for termination must also be defensible or justifiable on an objective analysis of the relevant facts. See Rode v Burwood Mitsubishi.41

Consideration

[60] Having considered all the material and evidence available the tribunal is unable to accept there was a valid reason for the applicant’s dismissal in this matter. In making this conclusion the tribunal is satisfied that the applicant had consumed alcohol at various times and had failed various BAC tests of the respondent. Such behaviour is not to be condoned and is usually recognised as misconduct by impairment and being unfit for their duties.

[61] However in this matter an examination of the context and culture of the applicant’s conduct has led the tribunal to form a view that the veracity of the respondent’s combined policies and testing systems is severely lacking. There are in existence various policies, some of which are in tension as to standards and procedures that apply to employees. All are less than clear and comprehensive as to the procedures that shall apply at the site in question. They are relied upon by the respondent as they supposedly allow adjustment at determined times to client and site specifications. That relied upon discretion in the tribunal’s view contributes a lack of specificity to such policies and procedures.

[62] The respondent has continuously referred to the imposition of new policies from December 2010, but a consideration of the evidence indicates that this new policy is but a discretionary approach to the existing policies and a various discretionary re-emphasis applied, i.e. no verbal warnings, referred to as a “crackdown”.

[63] The evidence further shows that the changes were insufficiently bedded down or communicated to the workforce with personnel managers, operational managers and employees having less than a comprehensive knowledge of the changes and the clear policy to be applied and conformed with. The witnesses in this matter all indicated a divergent knowledge of the policy parameters applicable. The evidence further indicates that the respondent’s staff, including some managers, had little knowledge of the combined policies of the respondent before the supposed changes or “crackdown” was initiated post December 2010. It is noted the applicant was allowed back to work having conformed to a procedure in the company of her supervisor. Having worked for some hours and operated a vehicle, she was then stood down as the manager was in error. She then received a first and final warning letter without discussion or consideration. The experience of Ms Stefanovic is also persuasive. This is less than a vigilant approach by the respondent to a significant issue and one which puts at risk the continued employment of their employees.

[64] It is not in dispute the applicant was advised of the reason for dismissal, notwithstanding the letter received is less than clear as to the specific breach and the view of the respondent. There is no evidence of the provision or consideration of any discussions with the applicant prior to dismissal or the attendance by a support person at the dismissal or exchange of the dismissal letter. The opportunity to respond or discuss with the respondent was limited.

[65] The previous performance of the applicant had resulted in receipt of a warning letter which the tribunal has already found to be less than specific as to the breach.

[66] There is no absence of dedicated human resource personnel to assist the respondent. The size of the respondent’s enterprise would have little impact on the procedures followed in this matter.

[67] Other matters considered are the reference by the respondent to the availability of various assistance programs and specific intervention strategies for employees involved in breaches of the drug and alcohol policies. Their existence is commendable, but the witness evidence of employees indicates they are not clearly applied at the workplace.

[68] Furthermore the applicant suffered some financial disruption to her circumstances as a result of being dismissed.

[69] The tribunal having considered all the evidence available and the relevant criteria of the Act has concluded that the dismissal of Ms Day was unfair as it was harsh and unreasonable. The dismissal has had economic consequences on the applicant. She has been able to find some work, but has experienced some economic loss. It was unreasonable as it was decided on the base assumptions of the respondent that their policies were comprehensive and promulgated. In fact, this was not so in the workplace.

Remedy

[70] Having considered the provisions of the Act in respect to s.390 the tribunal considers that reinstatement is appropriate in this matter. The applicant is seeking reinstatement. The respondent submits the employment relationship is untenable primarily because the applicant has refused their approaches at settlement, including reinstatement. The tribunal does not accept the respondent’s submissions and can see no basis that the relationship is untenable and cannot be reconstituted successfully. The applicant is motivated to resume work.

[71] For the reasons above the tribunal has decided to order reinstatement of the applicant to the position she was employed in immediately before the dismissal. The tribunal has also decided it is appropriate to make an order to maintain the continuity of the applicant’s employment with the respondent and the period of her service with the respondent.

[72] The tribunal has further decided to order that the respondent pay an amount of remuneration lost, or likely to be lost by the applicant as a consequence of her dismissal. Such an order shall take into account the remuneration earned by the applicant during the period between her dismissal and the date of her reinstatement.

Orders

1. That the applicant is to be reinstated to her former position that she held immediately before dismissal with full continuity of employment and service with the respondent within fourteen days of this order.

2. That the respondent pay to the applicant an amount in terms of remuneration lost, or likely to be lost, between the date of termination and the date of reinstatement less any remuneration earned by the applicant within those dates. The applicant shall provide a declaration and evidence of her employment and earnings during this period to the respondent on reinstatement. The amount of remuneration lost is to be paid to the applicant within fourteen days of the date of reinstatement.

COMMISSIONER

Appearances:

The applicant in person

Ms L Nunn for the respondent

Hearing details:

2011:
Adelaide
October 11, 25

 1   Exhibit R1

 2   Sodexo Remote Sites Australia, Drugs & Alcohol Procedure at 5.6.2.1

 3   Ibid at 5.6.2.4

 4   Sodexo Disciplinary Policy at p 10

 5   Sodexo Fitness for Work Policy at p 7

 6   Policies and Procedures within Exhibit R1

 7   PN 104-106

 8   PN 109

 9   PN 123

 10   PN 127

 11   PN 152-165, PN 673-674, 677

 12   PN 341

 13   PN 355

 14   Letter to applicant from respondent dated 8 February 2011

 15   PN 231

 16   PN 498

 17   PN 593

 18   PN 616

 19   PN 673-674, 677

 20   PN 691, 701

 21   PN 797

 22   PN 1497

 23   PN 1515

 24   PN 1589

 25   PN 898

 26   PN 906

 27   PN 914

 28   PN 938, 942, 944-945

 29   PN 949-950

 30   PN 964

 31   PN 918

 32   PN 996-998

 33   PN 992

 34   PN 1105

 35   PN 1211-1214, 1235

 36   PN 1280

 37   PN 1295-1296

 38   PN 1726

 39   PN 1736

 40   (1995) 62 IR 371 at 373

 41   Unreported AIRC Print R4471 at para 90

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