[2016] FWC 4724


Fair Work Act 2009

s.394—Unfair dismissal

Shane Clayton
Coles Group Supply Chain Pty Ltd



Application for relief from unfair dismissal – alleged serious breach of the drug and alcohol policy – zero tolerance policy – high risk environment – induction training – indicative information about detection periods provided – whether zero tolerance policy reasonable – breach of reasonable policy found – applicant misled employer about when last consumed - whether valid reason – whether harsh – mitigating factors assessed – on balance dismissal not harsh, unjust or unreasonable.

1. Background and case outline

[1] Mr Clayton has made an application under s.394 of the Fair Work Act 2009 (the FW Act) seeking a remedy for an alleged unfair dismissal by his former employer, Coles Group Supply Chain Pty Ltd (Coles).

[2] Mr Clayton commenced employment on 1 July 2013, initially as a casual employee and then as a permanent part-time team member, at the Coles Edinburgh Parks Distribution Centre (the Coles EPDC). Mr Clayton’s position included the operation of various forms of manual handling equipment (MHE), which required him to hold a high risk license. Since September 2014, he has been a delegate of the Shop, Distributive and Allied Employees Association (SDA).

[3] The Coles EPDC is large, covering approximately 70,000 m2, and is a high risk environment due to the workplace being busy with MHE such as forklifts and reach trucks, as well as pedestrians. This is reflected in many of the policies and procedures operating at the facility, including the Drug and Alcohol policy (the D&A policy).

[4] The D&A policy is what is often described as being a “zero tolerance policy”. That is, any level of (detectable) alcohol or illicit drugs will be a breach of the policy and lead to a sanction.

[5] On 25 January 2016, Mr Clayton was involved in a forklift incident with another employee. It is common ground that there was no damage to persons or property and that Mr Clayton was not at fault in the incident. On the same day, Mr Clayton (and others) underwent an on-site oral fluid drug test. The test for Mr Clayton returned a non-negative result for cannabinoids.

[6] Following the further testing of oral fluid samples taken from Mr Clayton at that time, and the receipt of the laboratory result confirming a positive reading of >400 μg/L Delta-9-tetrahydrocannabinol (THC), a disciplinary meeting was conducted on 1 February 2016. As a result of that meeting, Mr Clayton’s employment was terminated without notice on the basis of a breach of the D&A policy.

[7] Mr Clayton has admitted that he smoked cannabis (marijuana) on the evening before reporting for duty on 25 January 2016.

[8] Mr Clayton contends that the dismissal was unfair on the following grounds:

[9] In substance, Mr Clayton contends that the dismissal was harsh and unjust in all of the circumstances. He seeks reinstatement to his former position.

[10] Coles contends that the dismissal was not unfair on the following grounds:

[11] There is no dispute that Mr Clayton was protected from unfair dismissal within the meaning of s.382 of the FW Act and there is a valid application before the Commission.

2. The witness evidence

[12] Mr Clayton provided a witness statement and gave evidence in the matter. He also relied on the witness statements of the following Coles EPDC employees:

[13] Amongst other matters, these employees confirmed the nature of the explanation provided to them as part of the induction and other training in relation to the D&A policy. This included some indicative information consistently provided to them about the “window of detection” for drugs including cannabis.

[14] Mr Clayton also relied upon the witness statement of Ms Louise Bailey, the Warehouse Organiser at the SDA. Ms Bailey provided evidence about the development of the D&A policy, and the meeting of 1 February 2016, where she attended in support of Mr Clayton. Ms Bailey’s evidence was not challenged.

[15] Mr Clayton further relied on an expert report prepared by Dr Ken Pidd, from the National Centre for Education and Training on Addiction, Flinders University, who also gave oral evidence.

[16] Coles relied on the witness statements, and the oral evidence, of:

[17] Coles also relied upon the witness statement of Mr George Bannard, the Drug and Alcohol Technician who performed the on-site testing of Mr Clayton and took the samples that were supplied for laboratory testing. Mr Bannard’s evidence was not challenged.

[18] Coles further relied on an expert report prepared by Dr Robert McCartney, an Occupational Physician specialising in workplace drug and alcohol testing who also gave oral evidence.

[19] The following are amongst the issues in dispute in this matter:

[20] The evidence of Dr Pidd and Dr McCartney went largely to these issues. I accept that both are experts and some of their evidence was consistent. However, on the contested matters within their expertise, I generally prefer the evidence of Dr McCartney as his evidence was more objective and convincing.

[21] I found, for the most part, that the evidence of Mr Clayton was given in an open and honest manner. I note that he made some appropriate concessions and accepted that he was not up front with Coles about when he originally claimed to have consumed the cannabis. However, he was less convincing about his attitude to, and extent of, his consumption of cannabis more generally. Further, Mr Clayton was not convincing about the timing of his cannabis consumption prior to attending for work on 25 January 2016 and what he asserted was the total absence of food and drink (other than half a cup of coffee) between 11.00 pm on 24 January 2016 and 6.30 pm on the next day. Accordingly, I have treated those parts of his evidence with considerable caution.

[22] The evidence of the other Coles EDPC employees and Ms Bailey was not challenged and I accept it. 1

[23] I have found that each of the witnesses called by Coles gave their evidence openly and honestly. There was some tension between the witnesses about the extent that circumstances, other than a positive test for an illicit drug, would be taken into account in determining whether an employee would be dismissed. It is evident to me that the management of the Coles EPDC have applied the policy to the effect that a positive result will lead to the conclusion of the employment – by resignation or dismissal. The fairness of that approach as applied in this case is ultimately a matter for the Commission to determine.

[24] In my consideration of the disputed evidence and making my findings of fact in this matter, I have had regard to the approach of Dixon J in Briginshaw v Briginshaw 2 as follows:

[25] Further, I note that in Budd v Dampier Salt Ltd 3 a Full Bench of the Australian Industrial Relations Commission said the following in relation to Briginshaw v Briginshaw:

3. The immediate events leading to dismissal

[26] Mr Clayton admits to smoking a few joints of marijuana on the evening of 24 January 2016. Although he had originally indicated an earlier time to Coles, in these proceedings, it is his contention that he did not smoke later than 11.00 pm that evening. I will deal with this aspect shortly.

[27] The following day, 25 January 2016, Mr Clayton commenced his shift at the Coles EPDC at 1.30 pm.

[28] At approximately 5.30 pm, there was an incident between the forklift vehicle that Mr Clayton was in control of and another forklift vehicle. There was no damage to persons or property and Mr Clayton was not at fault in the incident. Such incidents are not uncommon at the Coles EPDC. 4

[29] The incident was reported to management by both Mr Clayton and the driver of the other forklift. It is likely that at least initially, a D&A test was not going to be performed on the two employees involved. However, when the D&A Technician came to site for another purpose, Mr Clayton and the other driver, were requested to undertake a drug test. Both agreed to do so. I note that in the lead up to these events Ms Gibbs did not expect Mr Clayton to test positive and there were no signs evident to her that he was under the influence of drugs. 5

[30] The oral fluid drug testing was undertaken by Mr Bannard at 6.30 pm. Mr Clayton was the first to be tested and returned a non-negative result. There were no other non-negative tests that day. Arrangements were made for the additional samples taken from Mr Clayton at that time to be sent to a laboratory for testing and verification.

[31] As part of taking the oral samples, Mr Clayton was asked a series of questions by Mr Bannard and these were recorded on a testing record by Mr Bannard and signed by both men. The questions and responses were as follows:

[32] A copy of the testing record was also provided to Coles with the above answers redacted in that copy for privacy reasons. The full details were however provided to the laboratory that undertook the testing. I note that this included the name of the over the counter medication and that this had no bearing on the test results.

[33] I note that Mr Clayton stated that, when asked if he had consumed any illegal drugs in the past 24 hours, he had advised Mr Bannard that “I’m pretty sure it was over 24 hours ago or close to…I’m pretty sure I’ll be all right.” 7 He had no explanation for the fact that the answer to question 3 on the testing record, which he did not have access to prior to the hearing, was incorrect. I do not draw any negative inference from his evidence on that particular aspect given the circumstances.

[34] Ms Gibbs informed Mr Clayton of the test result and advised him that he was being suspended with pay and sent home. Mr Clayton declined an offer for Ms Gibbs to arrange a taxi for him.

[35] On 29 January 2016, the Coles EPDC was advised of the laboratory test results for Mr Clayton. The testing was performed by an accredited laboratory. The pathology result was a reading of >400ug/l for THC. Ms Gibbs advised Mr Clayton of that further result and arranged for him to attend a disciplinary meeting on the next working day with a support person.

[36] On 1 February 2016, Mr Clayton attended the disciplinary meeting with Ms Bailey as his support person. The meeting was conducted by Ms Gibbs and Ms Hughes, on behalf of Coles.

[37] Mr Clayton was advised that Coles considered that he had committed a serious breach of his employment contract and safe working practices due to the positive test result confirmed by the laboratory. Reference was made to the laboratory pathology report and Mr Clayton was advised, in effect, that the D&A policy adopted by Coles was a “zero tolerance” policy and that the requirement and the need for appropriate conduct in this regard were the subject of induction training that he had attended. Further, he was advised that coming to work “under the influence” of THC was a serious breach of his “contract”. 8

[38] Mr Clayton was given an opportunity to respond to the allegations and this involved adjourning the meeting to permit him to consult with Ms Bailey to prepare a response.

[39] Mr Clayton subsequently responded by adding the following notes to the meeting record:

[40] After considering that response and discussing the matter with a Senior Manager, a decision was made to dismiss Mr Clayton. Coles considered that given the high reading and the relatively short window for oral testing it was likely that Mr Clayton had consumed more recently than he had indicated. Further, it was considered that an exception (to the policy) could not be made on that basis. These latter aspects were not communicated to Mr Clayton at that time.

[41] Mr Clayton was advised that Coles had “no other option but to terminate your employment”. 10 In response to an invitation to say anything further, Mr Clayton indicated that the person undertaking the testing had pulled a pair of gloves out of his pocket before conducting the test. Mr Clayton then also spoke about the legitimate medical use of marijuana.

[42] Mr Clayton was dismissed at the 1 February 2016 meeting and was not given any notice or pay in lieu thereof.

4. The Drug and Alcohol Policy

[43] The most relevant elements of the D&A policy are set out below.

[44] The principles and standards of the policy are stated as being:

[45] The policy states that it will be applied as follows:

[46] I note that Mr Clayton did not press his original contention that the circumstances contemplated for testing to be undertaken did not exist. 13 This was a reasonable concession given that Mr Clayton readily agreed to undergo the testing and the circumstances of the incident.

[47] The consequences of a positive result are relevantly set out as follows:

[48] The D&A policy also encourages employees to access a confidential Employee Assistance Program (EAP) and other support services in the event that they experience drug or alcohol problems. The policy also provides that if this is done, and in the absence of the employee being involved in any incidents, continuing employment will not be jeopardised.

5. The induction training provided by the Coles EPDC

[49] Each of the Coles EPDC employees, including Mr Clayton, have undertaken an induction program in relation to Coles’ policies, including the D&A policy.

[50] As a result of that induction training, Mr Clayton would reasonably have understood the following:

[51] In addition, Mr Clayton - and other Coles EPDC workers - were advised that as an indicative guide, the window of detection for cannabis when subject to oral testing was between 3 and 6 hours after consumption. 15 Mr Clayton was also advised that it was his obligation to attend work free from drugs, and if in doubt, not to attend at all. This is reinforced in the D&A policy itself.16 Mr Clayton also expressly acknowledged these matters.17 I also note that Mr Clayton, based upon his own information, determined that if a person smoked marijuana it would (or may) show up in a drug test for a period of up to 8 hours after smoking.18 I note also that the other Coles EPDC employees who gave evidence confirmed that based upon their induction training, their understanding was “as long as you had an 8 hour break between smoking marijuana and attending the worksite, you should be okay.”19

6. Findings about Mr Clayton’s consumption of Cannabis

[52] There is a dispute about when Mr Clayton consumed cannabis, and potentially how much he consumed. This matter has proceeded on the basis that Mr Clayton smoked the cannabis, as against any other forms of consumption.

[53] This dispute has potential implications as to whether Mr Clayton knowingly or recklessly breached the D&A policy, given the information provided to him by Coles about the window of detection.

[54] Mr Clayton is a regular user of cannabis and does so for recreational purposes as well as to aid with stress relief and assist him to sleep. There were stressors in the workplace that arose from an earlier incident in which he was abused by another employee.

[55] Mr Clayton now contends that he consumed some cannabis no later than 11.00 pm on the evening before his attendance at work on 25 January 2016. In terms of the apparent indication - from the high THC reading confirmed by the laboratory - that his consumption was much closer to the timing of the samples being taken than that, Mr Clayton relied upon his own evidence to the contrary and the evidence of Dr Pidd.

[56] Dr Pidd provided the opinion that that it was not “entirely implausible” 20 that the THC reading could have resulted from cannabis use that occurred more than 20 hours earlier. I note that this was apparently based upon Mr Clayton’s suggestion, as part of seeking a report, that he had smoked marijuana at 8.00 pm on the night before his shift. In support of that opinion, Dr Pidd advanced the following propositions:

[57] Dr Pidd further indicated that had Mr Clayton smoked cannabis at 8.00 pm on the prior evening it is unlikely that he would have been impaired or affected by the consumption of marijuana by the time he commenced his shift.

[58] Coles contends that Mr Clayton must have consumed much closer to his attendance at work and/or during a break whilst at work. It relies upon the results of the laboratory testing and contends that those results were reliable and are consistent with later drug consumption. In that regard, it relies upon the evidence of Mr Bannard and Dr McCartney.

[59] Mr Bannard confirmed the following:

[60] Dr McCartney gave the opinion that Mr Clayton returned a confirmed valid positive oral fluid test for cannabinoids. He further indicated that the relatively high reading was indicative of recent use (being less than 8 hours prior to the testing) and was most likely indicative of consumption between 1 and 3 hours prior.

[61] Dr McCartney also opined that the result was very unlikely to represent “smoking a few joints over a few hours between 19 and 24 hours prior to the test” 21 – which he understood was Mr Clayton’s position.

[62] In relation to the propositions advanced by Dr Pidd, Dr McCartney indicated to the following effect:

[63] For reasons outlined earlier in this decision, where there is a direct conflict on matters falling with the expertise of the two expert witnesses, I prefer the evidence of Dr McCartney.

[64] I have considered the proposition that some residue of cannabis remained in Mr Clayton’s mouth and was responsible for the relatively high THC reading. This relies, in part, upon the proposition that Mr Clayton did not consume any food or water (other than half a cup of coffee) and did not clean his teeth between 11.00 pm on 24 January 2016 and 6.30 pm on 25 January 2016. I consider that the absence of food or water over that period is very unlikely and I have found that Mr Clayton’s evidence was not convincing on this aspect. It is therefore very unlikely that the foundation for this proposition occurred. Further, and in any event, this scenario would not provide an explanation for the high THC laboratory reading, given the need for the residue to directly impact upon the various samples that were taken, and due to the nature of the testing performed. 23

[65] I have considered Mr Clayton’s proposition that Mr Bannard used gloves drawn from his pocket and that this impugned any results. I consider that it is very unlikely that this took place, and further, that it would not, on the balance of probabilities, produce a positive sample in any event. It would be necessary that the gloves had been in contact with cannabis and that the gloves actually came into contact with the initial test sample and the other samples provided to the laboratory and deposited some cannabis onto each sample. Mr Clayton was the first to be tested on that day and was the only non-negative test. Mr Bannard rejected any notion that this would ever be his practice and his evidence was not challenged. In these circumstances, I am satisfied that this proposition does not provide an explanation for the high THC reading or cast doubt on the validity of the testing itself.

[66] There is no substance in the concerns raised about the chain of custody (or other) documentation associated with the testing or the fact the on-site testing was not accredited.

[67] Having regard to the expert and other evidence provided, and noting the fact that Mr Clayton’s consumption of cannabis prior to the events in question is not in dispute, there is no objective basis to doubt the test results relied upon by Coles in this matter. This also leads to the inevitable conclusion that Mr Clayton was at work with detectable THC in his system.

[68] However, there remains a dispute about when and/or how much cannabis Mr Clayton consumed. As outlined earlier, this is relevant to the extent that his intentions are germane to the determination of this matter.

[69] Dr McCartney gave evidence to the effect that the level of THC detected was consistent with Mr Clayton having smoked marijuana 1 to 3 hours prior to testing, however it was feasible that very significant use 5 to 6 hours earlier would also give a high level. It would also be expected that someone with a very high “dose” of that nature would be noticed as being impaired, but not always, depending upon their history of use and their desire and capacity to modify their behaviour. 24

[70] In terms of the suggestion put by Coles in closing submissions that Mr Clayton may have consumed cannabis during a break whilst at work, this was not put directly to him under cross-examination. That is, it was suggested to him that he may have consumed cannabis much later than he indicated and that he did have a break during which he attended a “smoko hut”, however no direct link between those two propositions was put to Mr Clayton. In these circumstances, and given the significance of this proposition, I do not consider that a finding of that nature can properly or fairly be made. 25

[71] This does, however, leave the probability that Mr Clayton consumed a significant amount of cannabis in the morning of 25 January 2016 before attending his shift commencing at 1.30pm. There are competing factors that inform that assessment. These include:

[72] Having considered all of the circumstances in light of the evidence and the relevant principles to be applied, 26 I find on the balance of probabilities that Mr Clayton consumed a significant amount of cannabis during the morning of 25 January 2016 before attending his shift.

7. Was Mr Clayton’s dismissal unfair within the meaning of the FW Act?

[73] Section 385 of the FW Act provides as follows:

[74] Mr Clayton was dismissed, the employer is not a small business within the meaning of the FW Act, and the concept of a genuine redundancy is not relevant here.

[75] On that basis, the dismissal will be unfair if it is found to be harsh, unjust or unreasonable.

[76] The FW Act relevantly provides as follows:

[77] It is clear that s.387 of the FW Act contemplates an overall assessment as to the nature of the dismissal being made by the Commission. In so doing, the FW Act sets out a number of considerations that must, where relevant, be treated as a matter of significance in the decision making process and weighed up accordingly.

[78] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to Mr Clayton’s capacity or conduct (including its effect on the safety and welfare of other employees)

[79] Valid in this context is generally considered to be whether there was a sound, defensible or well-founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights, privileges, duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, common sense way to ensure that the employer and employee are each treated fairly. 27 When considering whether there has been a valid reason concerning conduct, the Commission must itself determine whether the alleged conduct actually occurred based upon the evidence and materials before it.28

[80] The failure to follow a lawful instruction which was reasonable in the circumstances may provide an employer with a valid reason to terminate an employee's employment.29

[81] Conversely, it has been held that the failure to comply with an unreasonable direction does not provide a valid reason for the termination of a person's employment. In Izdes v L.G. Bennett & Co Pty Ltd t/as Alba Industries30 Beazley J also stated:

[82] In Woolworths Limited (t/as Safeway) v Cameron Brown32 a Full Bench of the AIRC, after considering the principles in Selvachandran v Peteron Plastics Pty Ltd and the approach of the AIRC in Atfield v Jupiters Limited t/a Conrad Jupiters Gold Coast,33 considered when a failure to abide by a policy of an employer would amount to a valid reason for termination of employment and when it would not:

[83] In Kolodjashnij v Lion Nathan T/A J Boag and Son Brewing Pty Ltd,35 Deegan C determined that:

[84] Mr Clayton contends, in effect, that he did not deliberately breach the policy in that he was relying upon the indicative detection window advised to him by Coles as part of his induction. He further contends that if he was not deliberately in breach of the D&A policy, there would not be a valid reason for dismissal. In that regard, he relies upon various decisions of the Commission and its predecessors concerning the approach generally adopted to misconduct, and in particular, serious misconduct, and to a number of decisions concerning drug and alcohol policy breaches.

[85] Coles contends, in effect, that Mr Clayton deliberately or recklessly breached the D&A policy, but in any event, the applicant’s intentions were not relevant when applied to a policy of the kind in operation at the Coles EPDC.

[86] In Harbour City Ferries Pty Ltd v Toms 37 (Toms) the Full Bench was dealing with an appeal of a decision concerning the breach of a “zero-tolerance” drug and alcohol policy. The Member at first instance38 found that the employee’s attendance at work having consumed some marijuana was a valid reason for dismissal but that there were various mitigating factors that made the dismissal harsh. The Full Bench concluded that in that case, the mitigating factors were not sufficient to produce that finding.

[87] The Federal Court in subsequently considering the Full Bench decision in that matter 39 observed as follows:

[88] I will return the role of mitigating factors later in this decision. For immediate purposes, the Full Bench decision in Toms confirms that a policy based upon the presumption that there is to be no illicit drugs present in the employee’s system may be reasonable and depending upon the circumstances in which that policy is to operate, a breach of that policy is a significant factor to be considered as to whether there is a valid reason for dismissal.

[89] Further, the deliberate or reckless breach of such a policy is a relevant consideration in that regard and more generally in an application of this nature.

[90] I am satisfied that it was reasonable for Coles to have a D&A policy of the kind implemented here and that it was important that it be consistently applied. That is, given the nature of the workplace, the risks associated with employees potentially working under the influence of alcohol or illicit drugs, and the absence of an appropriate objective test for impairment, the policy’s insistence upon not having any (detectable) drugs (or alcohol) in the system is reasonable and lawful.

[91] It is apparent that Mr Clayton was in breach of the policy given that he did attend for work in circumstances where a valid non-negative result for THC, subsequently confirmed by further testing, was found. Further, the importance of not being in breach of the D&A policy was well understood by him and a strict approach to the policy has been consistently applied by Coles. This is a matter directly concerning the health and welfare of employees at the Coles EPDC.

[92] It has also become apparent that Mr Clayton was not honest with Coles during the meeting on 1 February 2016 about when he had consumed the cannabis. Even on his own account, it was some five hours later, and on the basis of my findings, much later again.

[93] I am satisfied that there was a valid reason for Mr Clayton’s dismissal related to his conduct as contemplated by s.387(a) and the relevant authorities. There are however some factors, such as his understanding about the indicative window of detection and other circumstances associated with his conduct, that should potentially be further considered more generally.

Section 387(b) – whether Mr Clayton was notified of the reasons for dismissal

[94] This consideration requires the Commission to assess whether the applicant concerned was relevantly notified of the reasons leading to the dismissal before that decision was taken. 40

[95] The evident purpose of this consideration is that notification of the valid reason to terminate must be given to the employee before the decision to terminate the employee is made and the notification needs to be in explicit and plain and clear terms.

[96] The substantive reason for dismissal was the view taken by Coles that Mr Clayton had attended work in breach of the D&A policy. This was the focus of the meeting conducted on 1 February 2016 and Mr Clayton was advised of the reason.

[97] Coles also considered that Mr Clayton had not been honest in relation to the timing of his consumption of cannabis, and this aspect was not notified to him prior to the dismissal. This should have been undertaken however I will subsequently consider whether this has led to unfairness in this case.

Section 387(c) – whether Mr Clayton was given an opportunity to respond to any reason related to his capacity or conduct

[98] The relevant reasons are those arising from the valid reasons found by the Commission. This consideration is therefore directly related to the above discussion.

[99] This process contemplated by the FW Act does not necessarily require any formality and is to be applied in a common sense way to ensure the employee has been treated fairly. The question becomes whether Mr Clayton was aware of the nature of the employer’s concern about his conduct and had a full opportunity to respond to these concerns. 41

[100] Subject to the further consideration of the issue identified above, Mr Clayton was given a genuine opportunity to respond to the relevant reason.

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Clayton a support person

[101] Mr Clayton was accompanied by a support person and assisted by one or more officials of the SDA in discussions concerning the matters leading to the dismissal.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Clayton– whether he has been warned about that unsatisfactory performance before the dismissal.

[102] This consideration relates to performance of the job. Performance in this context includes the employee’s capacity to do the work, and the diligence and care taken with that work. 42

[103] This consideration does not arise in this matter.

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

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.

[104] Coles is a very large employer with access to dedicated human resource expertise.

Section 387(h) - other matters considered to be relevant

[105] Amongst other considerations, the Commission should consider the impact of the dismissal upon the applicant given all of the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 43

[106] A dismissal may, depending upon the overall circumstances, be considered to be harsh on the applicant employee due to the economic and personal consequences resulting from being dismissed. 44 Mr Clayton lost his employment which he had held since mid-2013 and there is no indication of any performance or conduct concerns prior to the events leading to his dismissal. These are relevant factors and must be weighed up in the context of the relevant misconduct, workplace requirements, and the circumstances of the matter more generally.

[107] I earlier referred to the approach of the Full Bench adopted in Toms. Amongst other matters, that decision turned on the nature of mitigating circumstances that should be considered when considering the outcome of a matter where a valid reason for dismissal, and compliance with procedural fairness requirements had been met.

[108] I have earlier set out an extract from the decision which discussed the nature of mitigating circumstances relied upon in that case. It is apparent, from that decision, that in the case of a D&A policy of the type evident here, the absence of any demonstrated link between consumption and impairment and/or the incident concerned, is not a relevant mitigating factor. However, the circumstance that led to the consumption of the drug, pain relief in the case of Toms, was a mitigating factor.

[109] In this case, Mr Clayton consumed the cannabis for a variety of reasons including as a means of coping with some stress that he felt from attending work and to assist him to sleep. This is relevant but must be weighed up in the context of a workplace that had a confidential EAP scheme and a D&A policy which encouraged employees to self-report problems without the spectre of sanctions. Mr Clayton also consumed cannabis for recreational purposes.

[110] As outlined earlier in this decision, I must also consider the impact of the information provided to Mr Clayton during the induction process about the indicative window of detection period. This goes both to the position on intent as advanced by Mr Clayton and potentially to mitigating circumstances.

[111] The information about the indicative detection window is relevant and information about how a policy will be applied, or the consequences of a policy provided by an employer to the employees, will generally be a factor to be weighed into the overall assessment of a dismissal. There are potential dangers for an employer in providing information about detection periods to the extent that this information might detract from the zero tolerance message in the policy itself. It may also, depending upon the overall information actually provided, be misleading given the variations that exist between individuals and the unpredictable potency of various illicit drugs. However, in this case, the information about the detection window does not provide an explanation for the breach of the policy or a major mitigating factor. The reasons for this are that the information provided to Mr Clayton included:

[112] Further, Mr Clayton had consumed cannabis on the morning before his shift and he could not, in the circumstances, be confident that he would be clear of the drug from his system when he attended at work. Accordingly, Mr Clayton attended for work where he was, at best, recklessly indifferent to his potential breach of the D&A policy and any confidence to the contrary was not soundly based. Based upon my findings, it is also the case that Mr Clayton consumed within, or at best, very close to, the “safe” indicative detection period as he understood it to be.

[113] I also note that it would not be reasonable or workable to expect Coles in any given case connected with the D&A policy to ascertain exactly when the drugs were consumed, or their quantity and potency, or to attempt to determine whether, in subjective terms, an employee deliberately intended to breach the policy. This does not mean that an employer in these situations should not consider, and take into account, the personal circumstances and explanations provided by the employee concerned. I have done so in determining this matter.

[114] I have also considered the fact that Coles did not provide any notice, or pay in lieu of notice, to Mr Clayton. The notice of termination of employment provisions in s.117 of the Act, which also permit payment in lieu of notice of termination, would in accordance with s.123(1)(b) of the Act not apply if the conduct of the applicant could be described as being serious misconduct. This term is defined by Regulation 1.07 in the following terms:

[115] If Mr Clayton had not misled Coles about the actual timing of his consumption of cannabis, and could more legitimately rely upon the indicative window of detection as part of the mitigating circumstances, I would have been inclined to the view that the absence of notice, or pay in lieu, would be a factor strongly supporting a finding that the dismissal was harsh. However, in this case, whilst the absence of notice is a factor, it is not a decisive one.

[116] In reaching a finding on a dismissal in these circumstances, differential treatment compared to treatment of other employees may also be taken into account. 45 In this case, the evidence is that the D&A policy has been consistently applied by Coles and there has been no differential treatment adverse to Mr Clayton.

Conclusion on nature of dismissal

[117] I have weighed all of the factors and circumstances of this application.

[118] In Parmalat Food Products Pty Ltd v Mr Kasian Wililo,46 the Full Bench observed:

[119] I need to consider the fact that Coles did not expressly disclose its concerns that Mr Clayton was not being honest about when he last consumed the cannabis as part of the disciplinary process. In the circumstances, and given my findings about his actual consumption, this has not in this case led to unfairness.

[120] The disciplinary process and the dismissal were handled by Coles in a procedurally fair manner.

[121] In determining matters in this jurisdiction, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in that position. 47 This also means that the employer’s approach to apply the “zero tolerance policy” in a manner that may not account for any of the particular circumstances of the breach cannot limit the Commission’s proper consideration of all of the statutory criteria as part of its own assessment of fairness.

[122] The Commission is directed to ensure a fair go all around. This is reinforced by the objects of this Part of the FW Act in s.381 including ss.(2) which provides as follows:

[123] The situation now facing Mr Clayton is regrettable. However, on balance, having regard to the provisions of s.387 of the FW Act as applied to the facts and circumstances evident in this case, I am not persuaded that Mr Clayton’s dismissal was harsh, unjust or unreasonable.

8. Conclusion

[124] Given my findings, this application must be dismissed and an order 48 to that end is being issued in conjunction with this decision.



D Blairs of Wearing Law, with permission, for Mr Shane Clayton.

W Spargo of Lander and Rogers, with permission, for Coles Group Supply Chain Pty Ltd.

Hearing details:



July 12, 13.

 1   There were some objections upheld to the content of some of the employee’s statements.

 2   (1938) 60 CLR 336.

 3   (2007) 166 IR 407 at [14] - [16].

 4   Statement of Ms Gibbs – Exhibit R2 at par16.

 5   Transcript PN746.

 6   Exhibit R1.

 7   Transcript PN345.

 8   Attachment EH5 to the Statement of Ms Hughes – Exhibit R3.

 9   Attachment EH 5 to the Statement of Ms Hughes – Exhibit R3.

 10   Statement of Ms Hughes – Exhibit R3 at par 30.

 11   Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.

 12   Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.

 13   Transcript PN1398.

 14   Attachment EH2 to the Statement of Ms Hughes – Exhibit R3.

 15   Exhibit A2.

 16   Attachment SAC1 to Statement of Mr Clayton – Exhibit A2 and Attachment EH2 to Statement of Ms Hughes – Exhibit R3.

 17   Transcript PN50-51 and PN100 – 102.

 18   Statement of Mr Clayton – Exhibit A1 at par 26.

 19   See Statement of Mr Cook – Exhibit A5 at par 19 as an example.

 20   Appendix A to the Statement of Dr Pidd – Exhibit A9.

 21   Attachment RM1 to the Statement of Dr McCartney – Exhibit R4.

 22   Transcript PN962.

 23   Transcript PN971.

 24   Transcript PN953-957.

 25   Browne v Dunn (1894) 6 R 67 as discussed in Cross on Evidence, 5th Edition at [17435] to [17455].

 26   Including Briginshaw v Briginshaw.

 27   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, at par [36].

 28   Rail Corporation New South Wales v Vrettos (2008) IR 129 and [27] and Edwards v Giudice (1999) 94 FCR 561.

29 Cox v South Australian Meat Corporation [1995] IRCA 287 (13 June 1995) per von Doussa J.

30 [1995] IRCA 499 (14 September 1995).

 31   Cf: Tranter v Council of the Shire of Wentworth (unreported, 24 October 1995, Marshall J. See also Schreier v Austal Ships Pty Ltd, Print N9636.

32 PR963023 (26 September 2005) (footnotes omitted).

33 PR928970 (19 March 2003) at [14].

34 Woolworths v Brown at [34].

35 [2009] AIRC 893 (16 October 2009).

36 Lion Nathan at [54].

 37   [2015] FWCFB 6249.

 38   Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327.

 39   Toms v Harbour City Ferries Pty Ltd [2015] FCAFC 35.

 40   See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

 41   RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

 42   See Anetta v Ansett Australia Ltd (2000) 98 IR 233.

 43   Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

 44   See also Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.

 45   Davis v Collinsville Coal Operations (unreported, AIRCFB, Harrison SDP, McCarthy DP, Redmond C, 19 November 2004) PR953370 [31].

46 [2011] FWAFB 1166.

 47   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681 at 685; Miller v University of New South Wales (2003) 132 FCR 147 and [13].

 48   PR548194.

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