[2014] FWC 1186

FAIR WORK COMMISSION

DECISION

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

Mr Shane Andrew McCarthy
v
Woolstar Pty Ltd
(U2013/2163)

COMMISSIONER CAMBRIDGE

SYDNEY, 18 FEBRUARY 2014

Application for unfair dismissal remedy - positive result of random workplace drug test - confirmatory laboratory test result - breach of employer’s drug and alcohol policy - serious misconduct - further evidence of misconduct - valid reason for dismissal - dismissal not harsh, unjust or unreasonable - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was lodged at Sydney on 3 July 2013. The application was made by Shane Andrew McCarthy (the applicant) and the respondent employer is Woolstar Pty Ltd (the employer).

[2] The application indicated that the date the applicant’s dismissal took effect was 3 July 2013. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.

[3] The matter was not resolved at conciliation and it has proceeded to arbitration before the Fair Work Commission (the Commission) in a Hearing conducted in Sydney on 12, 13 November and 11 and 12 December 2013.

[4] At the Hearing, Mr S Mueller, and Mr N Von Richthofen, from the National Union of Workers (the NUW) appeared for the applicant. The applicant and two other witnesses were called to provide evidence in support of the claim. The employer was represented by Mr S Jauncey and Mr T Reaburn, solicitors from Henry Davis York. Mr Jauncey called a total of five witnesses who provided evidence on behalf of the employer.

Factual Background

[5] The applicant is a man who was 38 years of age at the time of his dismissal, 3 July 2013. The applicant commenced with the employer as a casual Storeperson in October of 2001 and he was appointed to a permanent Storeperson position in 2002. The applicant worked at the Woolworths Sydney National Distribution Centre (SNDC) located at Yennora. The applicant was an elected site delegate for the NUW.

[6] On 24 June 2013, the applicant commenced work at about 5:15 am, driving a counterbalance forklift. At about 6 am the applicant went to a smoking area to have a cigarette. After the applicant had attended to the induction process for some new employees, he was advised that he was one of various employees who had been selected to undergo a random on-site drug and alcohol test.

[7] The applicant offered to be the first person tested in the drug and alcohol testing program on that day. The applicant gave an oral fluid sample which gave a presumptive positive reading for the presence of delta-9-tetrahydrocannabinol (THC), the most active compound found in cannabis or marijuana. As the applicant had tested positive for THC, he was required to provide further oral fluid samples, referred to as A and B samples, which were sent to a laboratory for confirmatory testing.

[8] The applicant was suspended from duty on pay, pending the return of the results of laboratory analysis that was to be conducted on the A sample. The B sample was sent to the laboratory and retained for potential further analysis. The applicant left the SNDC and he arranged to have a urine drug and alcohol test conducted at a work injury management centre of his choosing. At about 10:21 am the applicant was provided with the results of his urine test which showed a negative result for THC.

[9] The applicant returned to the SNDC at around 11:30 am and in the company of two NUW officials he presented the employer with the negative urine test results which he had obtained about one hour earlier. The NUW officials requested that the applicant be returned to work. The employer refused to return the applicant to work and reaffirmed that the applicant would remain on paid suspension from duty until the laboratory test results had been provided.

[10] On 27 June 2013, the employer received the results from the laboratory. A Drug Confirmation Certificate was issued by the laboratory which had analysed the applicant’s A sample using a mass spectrometer which provided a reading of the presence of THC at a concentration of 82 micrograms per litre (ug/L). The target level for presence of THC is 10 ug/L and the Australian Standards set cut offs for THC in oral fluid at 25 ug/L. A meeting with the applicant was arranged for the next day, 28 June.

[11] On Friday 28 June 2013, the applicant and various NUW officials met with the employer and discussed the test results. The employer was concerned about the conflicting results as between the urine test undertaken by the applicant and the confirmatory laboratory results. The meeting was adjourned to enable the employer to further consider the conflicting test results, together with the responses and representations made by and on behalf of the applicant.

[12] On 3 July 2013, the applicant together with the NUW officials, met again with the employer. The employer advised the applicant that it was relying upon the confirmatory laboratory results from the oral fluid testing and, in effect, rejecting the urine test results which had been obtained by the applicant. Consequently, the employer advised that it had determined that the applicant should be dismissed from employment on the basis that he had committed serious misconduct as a result of breaches of the Code of Conduct and the Woolworths Drug and Alcohol Policy.

[13] The dismissal of the applicant appeared to initiate some industrial action by employees at the SNDC and this industrial action was the subject of communication between the employer and the NUW. Subsequently, the applicant was provided with a letter which confirmed his termination of employment on and from 3 July 2013.

The Case for the Applicant

[14] Mr Mueller, from the NUW, who appeared for the applicant at the Hearing, made verbal submissions in addition to documentary material that had been filed earlier.

[15] Mr Mueller submitted that there was no valid reason for the dismissal of the applicant because he was not under the influence of drugs. Mr Mueller referred to the employer’s policy and procedures guidelines which stated that the random on-site drug testing must be carried out in accordance with the Australian Standard. As there was currently no accredited on-site drug testing agencies in Australia, Mr Mueller submitted that the employer was in breach of its own policy and could not rely upon the drug test results which had been obtained for the applicant.

[16] Mr Mueller made further submissions which appeared to challenge the accuracy of the confirmatory laboratory results on the basis that the on-site immunoassay test had not, and could not have been, conducted in accordance with the Australian Standard. Similarly, Mr Mueller seemed to suggest that the chain of custody process for the transportation of the applicant’s A and B samples had not been compliant with the Australian Standard and therefore the employer was not able to rely upon the laboratory test results.

[17] Mr Mueller also made submissions about an issue that arose with the applicant’s signature which appeared on the testing record document 1 when compared to the signatures which appeared where the applicant would have signed the Drager on-site test printout2 and the chain of custody form.3 These three documents, Exhibits 11, 12 and 13, were completed at the time of the on-site drug testing, circa 6:30 am on 24 June 2013.

[18] The signature on the document which was created first in time, Exhibit 11, was recognised as being the applicant’s signature. Strangely however, the signatures on the other two documents, Exhibits 12 and 13 do not look at all like the applicant’s signature as it appeared on the first document, Exhibit 11. The applicant gave evidence that he did not remember signing either of the second two documents, Exhibits 12 and 13, and he did not recognise the signatures that appeared on those documents as being his.

[19] During the Hearing, the employer produced other documents which had been held in the applicant’s personnel file and which contained the “signatures” of the applicant. Curiously these documents, Exhibits 23, 24 and 25, contained signatures which did not look at all like the applicant’s signature as it appeared on Exhibit 11. Instead, particularly in the cases of Exhibits 23 and 24, the signatures had some similarity with the signatures on Exhibits 12 and 13.

[20] Mr Mueller submitted that the challenge to the authenticity of the applicant’s signatures as they appeared on Exhibits 12 and 13, could not be resolved without evidence from a handwriting expert. Further, Mr Mueller said that the person conducting the drug testing on 24 June, Mr Shorrocks, should have cross-checked the signatures at the time.

[21] Mr Mueller made further submissions which criticized the on-site drug tester, Mr Shorrocks, for not checking that the applicant did not have anything in his mouth and that the tester did not wear gloves when conducting the testing of the applicant.

[22] Mr Mueller also made submissions which urged that the urine test results obtained by the applicant supported the applicant’s evidence that he did not take drugs.

[23] In further submissions which appeared to, by implication, accept the confirmatory laboratory drug test result, Mr Mueller said that the employer’s policy did not mandate that one positive drug test meant that dismissal should follow. Mr Mueller submitted that “This was a first breach of the policy by the applicant” and “he said I didn’t take it, I can’t explain why it got there” and it was “unfair to go to the harshest remedy available”. Mr Mueller submitted that “In all the circumstances, including the length of service and the fact that it dismissed the applicant for a first breach offence...”, the dismissal was harsh.

[24] Mr Mueller made submissions which sought the reinstatement of the applicant together with payment for lost remuneration.

The Case for the Employer

[25] The employer was represented by Mr Jauncey, solicitor, who submitted that the dismissal of the applicant was not unfair. Mr Jauncey commenced his submissions by providing a folder which contained numerous authorities upon which he said the employer’s case relied. Mr Jauncey also made submissions which elaborated upon a documentary outline that had been filed on behalf of the employer.

[26] Mr Jauncey submitted that the key issue in the determination of the matter was whether there was a valid reason for the dismissal of the applicant. Mr Jauncey said that the valid reason was that the applicant produced a saliva sample which was found by liquid chromatography mass spectrometry (LCMS) testing to have a concentration of 82 micrograms per litre of THC. This was a medium high level of THC which would have impaired the applicant’s ability to operate safely in a hazardous work environment.

[27] Mr Jauncey made further submissions which rejected any suggestion that the laboratory test result could be challenged by way of alleged failure to comply with the Australian Standards. Mr Jauncey referred to various authorities which he said established that strict compliance with an Australian Standard was not a mandatory legal requirement. These authorities were said to have clearly determined that Australian Standards should be treated as guidelines, recommendations and preferred methods, rather than some form of compulsory obligation.

[28] According to Mr Jauncey, the various issues which had been raised in an attempt to challenge the LCMS testing result of 82 micrograms per litre of THC, were fallacious and didn’t invalidate the laboratory test results in any way. Issues such as the drug tester, Mr Shorrocks, not checking the applicant’s mouth and not wearing gloves, could not represent any basis to dispute the confirmatory laboratory result obtained from the LCMS testing.

[29] Mr Jauncey also made submissions which disputed the urine test results which had been obtained by the applicant. Mr Jauncey said that the urine test had been conducted without sufficient evidence to establish that it was conducted with appropriate control procedures to avoid a masking, dilution or other contamination. Mr Jauncey stressed that the evidence from the applicant’s own witness was that the urine test result was, of itself, essentially worthless.

[30] In further submissions, Mr Jauncey rejected any criticism which had been made of the chain of custody procedure. In this regard, Mr Jauncey noted the evidence that the laboratory had received the applicant’s A and B sample tubes with the tamper proof seals intact. Mr Jauncey submitted that the LCMS testing procedure was the “gold standard in forensic toxicology” which had a very high degree of reliability.

[31] Mr Jauncey also made submissions about the conflicting evidence regarding what was said by the applicant to the drug tester, Mr Shorrocks, during the on-site testing conducted on the morning of 24 June. Mr Shorrocks provided evidence which was supported by handwritten notes that he had made on the morning of 24 June, which directly contradicted the applicant’s version of the event.

[32] According to the submissions of Mr Jauncey, the applicant’s version could not be preferred over the evidence provided by Mr Shorrocks and that given the nature of the conflict in this evidence, the applicant was not a witness of truth. Mr Jauncey stressed that Mr Shorrocks’ evidence about the conversation that he had with the applicant during the drug test on 24 June had not been challenged during the cross-examination of Mr Shorrocks and thus represented essentially unchallenged evidence.

[33] The submissions made by Mr Jauncey also directed strong criticism at the applicant in respect to the issue of his “different” signatures. Mr Jauncey said that the applicant gave evidence that he didn’t remember signing the test result and chain of custody forms, Exhibits 12 and 13, and that he didn’t recognise the signatures on those documents as being his. However, Mr Jauncey said that the signatures on Exhibits 23 and 24 contained certain resemblances to the signatures on Exhibits 12 and 13.

[34] Mr Jauncey summarised his submissions by stating that the evidence supported a finding that the applicant had tested positive for THC and was affected by cannabis such that his operation of machinery was unsafe. This finding alone was, according to Mr Jauncey, a valid reason for dismissal. However, Mr Jauncey said that the exposure of the applicant’s dishonesty by way of his repeated denials of the use of drugs, particularly when combined with the evidence provided by Mr Shorrocks regarding the conversation that took place between himself and the applicant when the test was conducted, established further valid reason for dismissal.

[35] Mr Jauncey said that there were valid reasons for the applicant’s dismissal. Further, he said that the employer had adopted a correct procedure for investigation and determination of the applicant’s positive drug test result and given the revelation of subsequent dishonesty of the applicant, the Commission should dismiss the application.

Consideration

[36] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[37] In this case, there was no dispute that the matter was confined to a determination of that element contained in subsection 385 (b) of the Act, specifically whether the dismissal of the applicant was harsh, unjust or unreasonable. Section 387 of the Act contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. These criteria are:

(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.

387 (a) - Valid Reason for the Dismissal Related to Capacity or Conduct

[38] The termination advice 4 provided to the applicant stated that the reason for dismissal was “...serious misconduct as a result of breaches of the Code of Conduct and the Woolworths Drug and Alcohol Policy.” In addition, the employer has sought to rely upon further alleged misconduct of the applicant which broadly involved dishonesty that was revealed during the investigation which was conducted after the applicant’s drug test result, including conduct that came to the employer’s knowledge during the unfair dismissal proceedings. Essentially, the applicant was dismissed because he recorded a positive on-site workplace drug test result which was subsequently confirmed by laboratory analysis to be 82 micrograms per litre of THC (cannabis).

[39] Workplace drug and alcohol testing regimes are mechanisms which improve safety for workers. Individuals who attend a workplace like the SNDC under the influence of drugs or alcohol, at a level of recognised impairment, are likely to endanger the lives of other workers. Workplace drug testing, if properly conducted and policed, should not be misconceived as an invasive and punitive threat to the welfare of workers.

[40] However, the apprehension that workers often have about drug and alcohol testing regimes is understandable. In particular, the identification of the use of illicit drugs or disproportionate and unsympathetic disciplinary reactions to positive and confirmatory test results, naturally creates concern in the mind of some workers. As a matter of general approach, drug or alcohol addiction or abuse issues which have been identified through workplace testing, should be recognised as problems that require a treatment program and not necessarily dismissal from employment.

[41] Consequently, the particular circumstances of the applicant which involved a confirmatory laboratory test result of 82 micrograms per litre (ug/L) of THC, should be approached from a perspective that acknowledges that: (a) workplace drug and alcohol testing is an important safety protection which benefits workers; and, (b) disciplinary action arising from positive drug test results should as a general practice, encourage rectification and avoid any automaticity for dismissal.

[42] In this context, the applicant’s confirmatory laboratory test result should be properly assessed in terms of the level of severity that it represents. Logically, a first time positive result confirmed to be at a low level of concentration would be treated differently to a second or third positive test result at a high level concentration.

[43] There appears to be considerable scientific and academic debate about the level of concentration of THC which can be equated with any measureable level of human functional impairment. Much of this worldwide debate has developed in the context of state and national government law-making for the establishment of legal driving limits for THC, as have been developed for prescribed levels of alcohol. The expert, unchallenged evidence provided in this case by Dr Ogden, included that in respect to THC: “European countries have adopted limits for driving between 0.3 ug/L and 1.0 ug/L as the legal limits.” 5 Further, Dr Ogden also stated: “I would consider 82 ug/L in oral fluid a medium-high level indicating recent use of cannabis.”6

[44] Consequently, the applicant’s confirmatory test result was, on any objective measure, a matter for alarm. Although it was a first positive test result, it was of such a level that it would seem to be difficult to defend on the basis that it did not represent serious misconduct that would justify dismissal, as opposed to a result of a lower concentration which might attract some lesser disciplinary penalty and a remedial treatment program. It would seem that the confirmatory test result of 82 ug/L would dramatically exceed any legal driving limit (if one existed) and would represent valid reason for dismissal.

[45] Any challenge to the employer’s decision to dismiss for reason of a confirmatory laboratory test result of this level could conceivably involve two seemingly mutually exclusive approaches. One potential challenge would involve the accuracy of the test result, and the other would involve the proposition that dismissal was not a reasonable penalty in consequence of the result. The latter proposition would seem to be something that would be approached with great trepidation. However, surprisingly, those representing the applicant attempted to advance challenge to both the accuracy of the test result and the severity of the penalty which by implication, acknowledged the accuracy of the test result.

[46] In this case, it was disappointing and regrettable to observe the flimsy and unfounded attempted challenge taken on behalf of the applicant against the valid reason for dismissal. Once there was a confirmatory laboratory test result obtained via use of a mass spectrometer which provided a reading of the presence of THC at a concentration of 82 micrograms per litre, a prima facie serious threat to the safety of workers at the SNDC had been identified. Any attempt to defend a person who presented for work with such a level of drug induced impairment should have been approached with great caution and attention so as to ensure that any challenge to the accuracy of the test result would only be made upon compelling proof.

[47] The evidence which was presented on behalf of the applicant did not include any conceivable basis for challenge to the accuracy of the confirmatory laboratory test result. There was considerable evidence which established the accuracy and reliability of mass spectrometer testing and there was simply no plausible basis advanced as a reason to impeach the applicant’s test result of 82 micrograms per litre of THC.

[48] The attempted reliance upon the position that the regulatory authority has not accredited any on-site testing body in accordance with the Australian Standard was specious and illogical. In effect, this proposition would translate into a circumstance that would render all workplace drug testing currently being conducted in Australia as void or invalid. The current difficulties associated with formal accreditation of on-site drug testing are broadly irrelevant to the results of an analysis conducted in a laboratory, unless there was evidence to support the possible contamination of the samples sent to the laboratory. In this instance, that possibility was so remote as to be described by Dr Ogden as “vanishingly unlikely.” 7

[49] Similarly, the suggestions that the laboratory test result could be called into question because the on-site tester did not inspect the applicant’s mouth or because the tester was not wearing gloves, defied logic and common sense. These suggestions seemed to be advanced upon the almost ludicrous prospects that either the applicant had cannabis in his mouth, or that the drug tester, Mr Shorrocks, had significant amounts of a substance containing high concentrations of THC on his hands.

[50] It must be readily recognised that a confirmatory laboratory result obtained by way of mass spectrometry testing, should not be treated as an infallible and unchallengeable finding. Although it would be highly unlikely, there could have been some contamination of the applicant’s A sample when it was tested at the laboratory or some other error may have occurred during the laboratory testing. The refusal of the applicant to have his B sample tested by some other “independent” laboratory was suggestive of a lack of conviction and when combined with other evidence of the confidential discussion between the applicant and Mr Shorrocks during the on-site testing, provided compelling basis to accept the evidence of Mr Shorrocks and discredit that of the applicant.

[51] There was also evidence regarding the applicant’s signatures which was most disturbing. Upon examination it has become clear that the applicant has employed two quite different signatures. One “legitimate” signature which he appears to use in circumstances where the identification could conceivably have no adverse impact on him, and a second or “false” signature which is used in circumstances where some absence of clarity with his identification might be, at least potentially, to his advantage.

[52] The evidence of the applicant’s use of different signatures has become more troubling when considered in combination with the dramatically conflicting evidence of the conversation that he had with Mr Shorrocks during the drug testing on the morning of 24 June. Mr Shorrocks presented as a highly credible witness who had taken notes shortly after the drug testing had occurred. There was no basis to reject the evidence given by Mr Shorrocks. Indeed, he was not challenged under cross-examination on the most significant aspects of his evidence which directly and diametrically conflicted with the applicant’s version.

[53] Regrettably, I am unable to find that the applicant was a witness of truth. The evidence has conclusively established that the applicant has acted with considerable impropriety both in respect to his signing of employment related documents, his presentation for work at the SNDC on 24 June, and subsequently in respect to issues that have followed his presumptive positive test for THC.

[54] Consequently, the applicant was dismissed for valid reason. In view of the findings that I have made regarding the nature of the particular actions of the applicant before, on, and after 24 June, I have unfortunately formed the view that he is not a person deserving of any benefit that the Commission may provide.

[55] In some respects, the nature of the valid reason for dismissal and the basis for the adverse credit and character findings that I have made, would be sufficient to dispose of the claim for unfair dismissal remedy. Nevertheless, a dismissal for valid reason can be unfair because of other factors and for abundant caution, I am required to address all of the elements contained in s.387 of the Act.

387 (b) - Notification of Reason for Dismissal

[56] The employer provided written notification of the reason for the applicant's dismissal.

387 (c) - Opportunity to Respond to any Reason Related to Capacity or Conduct

[57] The employer provided the applicant with adequate opportunities to respond to the confirmatory laboratory test result. These opportunities were provided at the meetings held on 28 June and 3 July.

387 (d) - Unreasonable Refusal to Allow a Support Person to Assist

[58] The employer did not refuse to allow the applicant to have support persons present and indeed numerous officials from the NUW participated at various times and made strong representations on behalf of the applicant. Regrettably, those representations may be best described as misguided.

387 (e) - Warning about Unsatisfactory Performance

[59] This factor has no relevance in this instance.

387 (f) - Size of Enterprise Likely to Impact on Procedures

[60] This factor has no relevance in this instance.

387 (g) - Absence of Management Specialists or Expertise Likely to Impact on Procedures

[61] This factor has no relevance in this instance.

387 (h) - Other Relevant Matters

[62] Other matters, such as the personal circumstances of the applicant, including his reasonable length of service and the financial hardship suffered as a result of the dismissal have been considered. However, these other matters when evaluated against the findings made in respect to the established reasons for dismissal, do not militate against the severity of the misconduct of the applicant.

Conclusion

[63] The applicant was dismissed for serious misconduct involving breaches of the employer’s Code of Conduct and its Drug and Alcohol Policy.

[64] The applicant recorded a confirmatory laboratory test reading of the presence of THC in oral fluid at a concentration of 82 micrograms per litre. This test result would of itself, provide valid reason for the employer to terminate the employment of the applicant. This test result should have been treated as a prima facie serious risk to the safety of fellow workers.

[65] It would be a matter for the discretion of the employer, if, because of some other mitigating factors such as open and early admissions and general good character, that a first drug test result of this level would not result in dismissal but instead attract some less severe form of disciplinary action. In this instance, regrettably, there were no mitigating factors which might provide basis for an outcome other than dismissal.

[66] Consequently, the substantive reasons for the applicant's dismissal have been held to be valid.

[67] No criticism can be made of the procedure that the employer adopted when it conducted an investigation into the apparent discrepancy between the laboratory confirmatory test result and a urine test result obtained by the applicant.

[68] Similarly, other matters relating to the personal circumstances of the applicant do not diminish the seriousness of the transgressions of the applicant.

[69] The dismissal of the applicant was not harsh, unjust or unreasonable. Consequently, the application for unfair dismissal remedy is dismissed. An Order [PR547908] confirming the dismissal of the application will be issued concurrently with this Decision.

COMMISSIONER

Appearances:

Mr S Mueller and Mr N Von Richthofen, from the National Union of Workers, on behalf of the applicant;

Mr S Jauncey and Mr T Reaburn, solicitors from Henry Davis York, on behalf of Woolstar Pty Ltd.

Hearing details:

2013.

Sydney:

November, 12 & 13;

December, 11 & 12.