[2013] FWC 2017 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Raymond Briggs
v
AWH Pty Ltd
(U2012/10089)
COMMISSIONER WILLIAMS |
PERTH, 9 APRIL 2013 |
Termination of employment.
[1] This matter involves an application made by Mr Raymond Briggs (the applicant or Mr Briggs) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is AWH Pty Ltd (the respondent or AWH).
[2] This matter was dealt with by a Fair Work Conciliator however it was not resolved and the applicant has asked for the application to be determined.
[3] The applicant was dismissed on 27 September 2012 with two weeks’ pay in lieu of notice because of his alleged failure to comply with a direction that he undertake a drug test in accordance with the AWH policy dealing with alcohol and drug misuse.
The circumstances leading up to the dismissal
[4] Having considered the evidence of Mr Briggs and the evidence of the witnesses called on behalf of the respondent; being Mr Ward the respondent’s General Manager, Mr Van Dyk the respondents Leading Hand/Supervisor, Mr Cameron the Principal Legal Services Consultant of the Australian Mines and Metals Association and Mr Frazier a Drug and Alcohol Collector employed by Western Diagnostic Pathology (Western Diagnostics), I make the following findings.
[5] AWH provides a range of storage and associated logistics services for a range of products, such as:
[6] The applicant began employment with the respondent in January 2011 as the Stores Officer on a casual basis. The applicant was offered and accepted a full-time position with the respondent in August 2012.
[7] The applicant on each occasion accepted an offer of employment which included express provisions requiring him to be familiar with all policies and observe all lawful directions, orders, instructions and policies of the respondent as varied from time to time. The contract also expressly required the applicant to be free from the effects of any drug at all times whilst carrying out his duties and to comply with any requirement to undertake a medical examination and/or drug test to determine his fitness to work.
[8] At the commencement of his employment in January 2011 and again from the beginning of his permanent employment in August 2012 the applicant attended an induction during which the respondent’s Alcohol and Drug Misuse Policy was explained as were the consequences of failing to comply with the policy.
[9] On both occasions during these inductions the applicant raised questions regarding the cut-off levels specified under the Australian Standard AS4308, which is entitled “Procedures for specimen collection and the detection and quantitation of drugs of abuse in urine”.
[10] The applicant challenged the view that the cut-off levels for a positive reading under AS4308 were related to impairment.
[11] The applicant agrees that he was aware of the requirements of the respondent’s Alcohol and Drug Misuse Policy 1.
[12] That policy says that the unauthorised or illegal use of alcohol or any controlled substance or drug by an employee while working on company premises is prohibited. And that any use of alcohol or a controlled substance or drug which inhibits safe working practices, causes or contributes to unacceptable job performance or unacceptable job behaviour is also prohibited.
[13] The policy says the company reserves the right to conduct an alcohol or controlled substance screen, testing or search procedure on any employee while working on company premises.
[14] Specifically the policy says that random screening, testing or search procedures may be implemented at the discretion of the respondent. Further the policy says that screening or testing procedures will be conducted according to recognised standard medical procedures for alcohol, opiates, sympathomimetis amines, cannabis cocaine, and benzodiazepines or any other drug the respondent’s medical adviser proscribes from time to time.
[15] The policy says the cut-off levels for these substances are as prescribed by statute or the AS4308 and are subject to change on the advice received from the respondent’s medical adviser.
[16] That policy expressly refers in the “Testing Procedures” provisions to drug testing or screening being undertaken in accordance with AS4308. AS4308 is the Australian Standard that sets out procedures for specimen collection and detection of drugs in urine.
[17] The balance of the policy deals with testing procedures and the consequences for employees generally.
[18] Importantly it includes the following provision:
“Refusal to undertake test
Refusal by an employee to undertake a test in accordance with this policy will result in disciplinary action or termination of employment for failure to comply with a work direction. At AWH’s discretion the employee will not be permitted to return to work until he/she has submitted to a test. During this time the employee will be suspended from duty without pay.”
[19] Drug testing is carried out for the respondent when required by staff from an independent qualified testing agency Western Diagnostics.
[20] Mr Ward the respondent’s General Manager had arranged for Western Diagnostics to perform a random drug and alcohol test on employees on 21 September 2012.
[21] The employees who were working at the site on that day, including the applicant, were directed to go to an area of the respondent’s offices that had been set aside for Western Diagnostics to conduct the testing. The applicant complied with that direction and went to the testing area where there were a number of other employees waiting to be tested.
[22] The applicant presented himself to Mr Frazier from Western Diagnostics and asked Mr Frazier to clarify certain points about the alcohol and drug testing policy and procedures that the applicant viewed as contradictory and confusing. The applicant pointed out to Mr Frazier and that he believed the standard urine testing AS4308 contains the following statement:
“This standard has no relevant to impairment.”
[23] The applicant was not satisfied with Mr Frazier’s reaction or lack of response to his concerns.
[24] I accept the applicant said that he would not provide a urine sample unless there was some effort to answer these and other questions he had about the procedure and policy and that he requested instead he undertake an oral fluids swab test.
[25] Mr Frazier refused his request for an oral fluids swab test and the applicant then asked to speak to the respondent’s management.
[26] Following a phone conversation between Mr Frazier and Mr Ward, Mr Ward came to the area where the tests were being conducted and spoke to the applicant in a nearby room.
[27] During that discussion the applicant questioned Mr Ward about what the policy was trying to achieve by conducting the drug and alcohol tests and explained his view that the testing was wrong and was unlawful. The applicant referred to various references in legislation and Mr Ward replied by saying that he was not there to discuss the validity of the test but to request that the applicant follow the company’s policy and procedures as directed.
[28] It became apparent to Mr Ward that the applicant was not willing to undertake the urine testing.
[29] Mr Ward arranged for Mr Van Dyk to attend whilst he had a more formal meeting with the applicant. Mr Ward asked the applicant if he wanted to bring anyone else to the meeting but he did not. Mr Ward told the applicant he was required to undertake a urine test but the applicant flatly refused. Mr Ward asked the applicant to go away and write down the reasons why he was refusing to undertake the urine testing.
[30] The applicant agreed to do this and subsequently provided a typed letter detailing the reasons for his refusal 2.
[31] The applicant’s letter explained why he declined a urine test and instead requested an oral fluids swab test.
[32] In short the applicant’s reasons were that the company’s policy says drug testing is conducted to determine whether an employee is under the influence of drugs but that AS4308 says urine testing cannot be used to determine whether an employee is fit to work and this is the only concern under the occupational health and safety legislation.
[33] The applicant’s letter says that swab testing is presently best practice in determining whether a person is under the influence of drugs.
[34] The final two paragraphs of his letter of explanation are as follows:
“I have declined a urine test as it is not relevant to the aim of drug testing according to the company’s own policy guidelines. I have instead requested the standard test for determining whether someone is under the influence of drugs − an oral swab test.
In short, I am asking the company to adhere to the standard of ‘best practice’ in this area as best practice is always the best way to go in terms of occupational health and safety.”
[35] Later that afternoon having received the applicant’s letter of explanation a second meeting was held between Mr Ward, the applicant and Mr Van Dyk.
[36] The applicant was provided with copies of the respondent’s Alcohol and Drug Misuse Policy and it was confirmed that he was aware of the policy from his inductions and he acknowledged the provisions in his contract of employment regarding these matters.
[37] The applicant says he wanted to speak to somebody from head office because he believed the policy was not best practice and not relevant.
[38] The applicant continued to refuse to undergo a urine test. Mr Ward told the applicant that he would not be allowed to return to work until he had done a clear urine test.
[39] Subsequently a letter was sent to Mr Briggs at his home address which he agrees he received. That letter refers to the previous meetings during which he advised he was not prepared to undertake a urine drug test as required.
[40] The letter advises the applicant that unless he makes himself available to take the test in accordance with the company’s policy the respondent would consider him in breach of the policy and having failed to comply with a work direction.
[41] The letter requested that he attend the offices of Western Diagnostics on Wednesday, 26 September 2012 at 9.00 a.m. for a urine test.
[42] The letter includes the following:
“This letter should be viewed as a final warning and furthermore fail to follow this work direction may result in termination of your employment.”
[43] On Wednesday, 26 September 2012 Mr Ward and the applicant spoke on the phone and the applicant confirmed that he had not attended the appointment at Western Diagnostics and so had not completed the urine drug test as directed.
[44] The following day Mr Ward rang the applicant and asked him to come in and attend a meeting.
[45] The applicant attended the meeting on 27 September 2012 with Mr Ward and Mr Van Dyk attending as a witness. Mr Ward explained to the applicant that his employment was to be terminated and the reason for this was his refusal to follow the direction to undertake the urine drug test. A letter confirming the termination was provided to the applicant dated the same day.
The applicant’s submission
[46] The applicant argues that the respondent’s Alcohol and Drug Misuse Policy is misleading because it creates the false impression that the cut-off levels for a urine test under AS4308 are related to impairment, fitness to work or being under the influence of drugs.
[47] The applicant submits that he has raised these issues with the respondent but their management has failed to reply adequately to these issues.
[48] The applicant’s argument is that a link between the cut-off levels for a positive reading described in AS4308 and impairment would have to be established forensically before those cut-off levels could be used as a test of fitness to work.
[49] The applicant submits that he has a right to decline to engage with any workplace policy which uses a method which is not best practice but is simply the preferred method of the employer.
[50] He submitted his challenge to urine testing as a preferred method does not amount to a rejection of drug testing per se.
[51] The applicant argues that he is entitled to challenge the respondent’s policy as he did, raising reasonable questions such as why urine testing was the preferred method of testing. Further that the respondent’s failure to answer these reasonable challenges to their policy means that policy is not sound or well founded. Consequently the applicant submits that dismissing him for asking these questions and requesting an oral fluids swab test instead of the urine test was unfair.
The respondent’s submission
[52] AWH submits that the applicant was not unfairly dismissed. The dismissal was not harsh, unjust or unreasonable in the circumstances.
[53] It is submitted that in this case there was a valid reason for the dismissal relating to Mr Briggs’ failure to obey a lawful and reasonable management direction to undertake a urine test, not once but twice, in breach of company policy.
[54] In addition Mr Briggs was notified of the reason for which he was to be dismissed and he was given an opportunity to respond to that reason.
[55] There was no unreasonable refusal by AWH to allow Mr Briggs to have a support person present to assist at any discussions relating to dismissal.
[56] The commercial contractual requirements of AWH to implement and enforce a Drug and Alcohol Testing Policy which includes scope to conduct urine testing at management discretion, the consistent application of AWH’s policies and the need for consistent treatment of other employees are also relevant matters which should be taken into account in support of AWH’s case.
[57] Accordingly, the respondent submits the Commission should not be persuaded that Mr Briggs be afforded an unfair dismissal remedy and, instead, these proceedings ought to be dismissed.
Consideration
[58] Section 387 of the Act sets out the matters the Commission must have regard for.
“387 Criteria for considering harshness etc.
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.”
[59] The applicant’s contract of employment expressly required him to comply with the respondent’s various policies as amended from time to time.
[60] There is no doubt that the applicant was aware of the respondent’s Alcohol and Drugs Misuse policy. Indeed it is the detail of that policy that the applicant had challenged.
[61] That policy expressly provides that the procedure for drug testing will be in accordance with AS4308 which details a standard for detection of drugs in urine specimens.
[62] The respondent did direct the applicant along with other employees to undertake a urine drug test. I accept that the respondent’s direction to its employees including the applicant was consistent with their policy.
[63] The applicant refused to undertake a urine drug test at first instance when the Western Diagnostics testers attended the respondent’s premises.
[64] The applicant however told the respondent’s General Manager he would willingly undertake an oral fluids swab test.
[65] The respondent did not accept this and repeated its direction to him to undertake a urine test. The applicant repeatedly refused to do this.
[66] The respondent in writing warned the applicant that failure to comply with this direction would result in his termination. The applicant was given time to comply with this however he persisted with his refusal to undergo a urine test and was dismissed.
[67] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [[2009] AIRC 893] which was upheld on appeal to the Full Bench in Mr Nick Kolodjashnij v J Boag and Son Brewing Pty Ltd [[2010] FWAFB 3258] it was made plain that an employee who:
“knowingly breaches a lawful and reasonable policy, the importance of which has been stressed by the employer, and where it has been made clear that a breach will result in dismissal, will have difficulty making out an argument that there was no valid reason for dismissal.” 3
[68] There is generally no basis for the Commission to interfere with the managerial prerogative or an employer’s right to make decisions on how to manage their business including a decision to introduce a workplace policy.
[69] In an unfair dismissal context, in Cameron Brown v Woolworths Limited (t/as Safeway), (2005) 57 AILR 100-415), the Full Bench of the Australian Industrial Relations Commission stated that:
“[24] In the modern era employers face an often bewildering array of statutory obligations in relation to matters such as health and safety, discrimination, taxation, trade practices and fair trading to mention the most obvious examples. Employers face potential liability arising from their common law duty of care to their employees and to members of the public. Employers may be subject to contractual obligations that require them to conduct their business in a particular way or to meet particular standards or observe particular constraints. For these reasons it is entirely reasonable, and often necessary, for employers to put in place policies, with which employees must comply, to facilitate the employer’s compliance with its obligations and duties.”
[70] The Full Bench examined the case law in this area and concluded that:
‘[34] A failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:
(a) the policy, or a direction to comply with the policy, is illegal;
(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or
(c) the policy, or a direction to comply with the policy is unreasonable.”
[71] Considering this approach in this case the only question here is whether the direction to comply with the policy was unreasonable. The applicant’s refusal was because he says the employer’s drug testing policy which includes a procedure which tests urine, rather than oral fluids was an unreasonable policy.
[72] In my view a testing policy is not unreasonable simply because an employer could have adopted an alternative approach to testing which an employee would have preferred, and which in some circumstances may have had different consequences or outcomes for tested employees.
[73] As the Full Bench in Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; Australian Municipal, Administrative, Clerical and Services Union; Association of Professional Engineers, Scientists and Managers, Australia [[2012] FWAFB 4998] confirmed at paragraph [54] of their decision there is:
“no reason to conclude that testing for drugs whether by urine or oral fluid as part of a drug and alcohol policy, would not be properly considered to be a reasonably practicable measure that will minimise risks to health and safety.” (Underlining added)
[74] Other decisions on drug testing methodology also highlight that both urine or ‘oral’ or ‘swab’ testing are reasonable, legitimate and common methods used to minimise occupational health and safety risks. The decision of Construction, Forestry, Mining and Energy Union v HWE Mining Pty Limited [[2011] FWA 8288] at paragraph [29] confirms that continuing urine testing was a reasonable methodology as part of that employer’s drug and alcohol policy.
[75] The alternative approach that employees are entitled to choose whether they undergo swab tests, urine tests or blood tests as a matter of personal preference based on their opinion of ‘best practice’ has no basis and is rejected. The employer has the right to put in place reasonable policies and to require their employees comply with these.
[76] In this case the particular method of testing procedure the employer adopted for drugs was a matter for it to decide upon. The respondent’s policy requiring employees to be subject to urine testing for drugs was reasonable.
[77] Mr Briggs refused to undergo a urine test in accordance with the respondent’s Alcohol and Drugs Misuse Policy. He refused being fully aware that failing to comply with the direction to be so tested would lead to his termination. AWH was entitled to dismiss Mr Briggs because of his failure to follow a lawful and reasonable direction to undertake the urine drug testing. Mr Briggs refusal to undergo a urine test when directed to do so was a valid reason for his dismissal to do with his conduct.
Notification of reason for dismissal
[78] AWH did notify Mr Briggs of the reason it was considering termination his employment before it decided to do so.
An opportunity to respond to any reason related to his conduct
[79] On 21 September 2012 (the day that Mr Briggs refused to be tested), Mr Briggs attended at least two meetings with Mr Ward in the presence of a witness, Mr Bernard Van Dyk, AWH Logistics Supervisor. Mr Briggs was asked to provide formal reasons as to why he refused to undertake the urine test in the first meeting and subsequently provided a letter outlining his response.
[80] Again on 25 September 2012, Mr Briggs had the opportunity to put forward any additional information to AWH management for their consideration as to why he refused to be tested.
[81] Mr Briggs understood that the consequences of his conduct in refusing to be tested could include termination of his employment.
No unreasonable refusal to allow a support person present
[82] AWH did not refuse to allow Mr Briggs a support person to assist at any discussions relating to the dismissal.
The dismissal did not relate to unsatisfactory performance
[83] The dismissal of Mr Briggs was not related to unsatisfactory work performance.
The size of the enterprise and dedicated human resource management specialists
[84] The size of AWH’s enterprise and the absence of human resource management specialists at the site are not in issue in this matter. The procedure followed by the respondent was not deficient.
Other relevant matters
[85] Other relevant factors include the fact as Mr Ward explained that there are commercial obligations AWH has to clients requiring urine drug testing to be able to be carried out by AWH and separately the importance for AWH that its policy is consistently applied to all its employees.
[86] The applicant had been employed for under two years.
Conclusion
[87] There is no basis on which the Commission can find that the decision to dismiss the applicant was harsh, unjust or unreasonable. The dismissal was not unfair.
[88] This matter will be dismissed and an order to that effect will be issued in conjunction with this decision.
COMMISSIONER
Appearances:
R Briggs on his own behalf.
J Tracey of Counsel for the respondent.
Hearing details:
2013.
Perth:
March 26.
1 Exhibit R2, Annexure JW1.
2 Ibid., Annexure JW5.
3 [[2010] FWAFB 3258] at paragraph [54].
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