[2017] FWC 589
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s.739 - Application to deal with a dispute

Karl Muller
v
Mt Arthur Coal Pty Limited T/A Mt Arthur Coal
(C2016/1813)

Coal industry

COMMISSIONER SAUNDERS

NEWCASTLE, 9 FEBRUARY 2017

Application to deal with a dispute – final written warning issued.

[1] Mr Karl Muller participated in a random drug and alcohol test at work on the evening of 20 February 2016. Later that night he was directed to undertake a further drug test and he refused to do so. On 30 June 2016, Mr Muller was issued with a final written warning by his employer, Mt Arthur Coal Pty Limited (Mt Arthur), in relation to his refusal to undertake the additional drug test on 20 February 2016.

[2] Mr Muller applied to the Fair Work Commission (the Commission) for it to deal with his dispute with Mt Arthur concerning his final written warning, in accordance with the dispute settlement clause in the Mt Arthur Coal Enterprise Agreement 2016 (the Enterprise Agreement) and s.739 of the Fair Work Act 2009 (Cth) (the Act).

Agreed questions for arbitration

[3] Following an unsuccessful conciliation of the dispute, the parties agreed that the Commission has jurisdiction to arbitrate the following four questions pursuant to the dispute settlement procedure in clause 21 of the Enterprise Agreement:

[4] I heard the case on 20, 21 and 22 December 2016 and 19 January 2017. Evidence in support of Mr Muller’s case was adduced from Mr Ian Ayre, CFMEU Site Lodge Vice President at the Mt Arthur open cut coal mine, Mr Jeff Drayton, Vice President of the CFMEU, Mining & Energy Division, Northern Mining & NSW Energy District, Mr Scott Muller, the son of Mr Karl Muller, and Mr Karl Muller, Operator at the Mt Arthur open cut coal mine. Neither Mr Drayton nor Mr Scott Muller was required for cross examination.

[5] Mt Arthur called evidence from Mr Dawid Boshoff, General Manager of the Mt Arthur coal mine, Mr Mitchell Parton, Production Services Superintendent, Ms Hannah Farr, Engineering Manager, Ms Natalie Heritier, Onsite Supervisor and Paramedic, and Mr Jamie Bell, Paramedic.

Question 1 – did Mr Muller breach Mt Arthur’s Drug and Alcohol Procedure by refusing to undertake a drug test on 20 February 2016?

[6] Section 4 of Mt Arthur’s Drug and Alcohol Procedure governs the testing of employees for drugs or alcohol. It provides as follows:

[7] The opening sentence of section 4 of Mt Arthur’s Drug and Alcohol Procedure must be read in context. In my view, that sentence does not give Mt Arthur the right to require an employee to undertake a drug or alcohol test at any time for any or no reason. The balance of section 4 sets out the circumstances in which an employee may be required to undergo drug or alcohol testing. For example, an employee may be required to undertake such testing at random, in connection with an incident, for cause, or at the employer’s request as part of a periodic mandatory test.

[8] In addition to the Drug and Alcohol Procedure, there is a Drug and Alcohol Testing Policy (Testing Policy) that applies at the Mt Arthur mine. There is some overlap between the two documents. Section 1 of the Testing Policy provides that “on-site drug and alcohol testing will be made under the following regimes: … random… at request…for cause…incident…” The fact that such testing must occur under one of those regimes supports the way in which I have construed section 4 of the Drug and Alcohol Procedure.

[9] As to Mt Arthur’s right to require an employee to undergo a drug or alcohol test “for cause”, Mt Arthur is entitled to exercise that right if it deems the employee to be potentially under the influence. Because such a test is “for cause”, it is implicit in the procedure, on its proper construction, that there must be a reasonable basis for Mt Arthur to deem the employee to be potentially under the influence. Mt Arthur accepted in final submissions that the procedure should be construed in this way.

20 February 2016

[10] At the commencement of his shift on 20 February 2016 Mr Muller was randomly selected for drug and alcohol testing. The testing was conducted on-site by Mr Jamie Bell, a Paramedic employed by the Verifact Group to undertake drug and alcohol testing at the Mt Arthur mine.

[11] Mr Bell is an experienced drug and alcohol tester. He has been conducting drug and alcohol tests for about eight years, during which time he has conducted thousands of drug and alcohol tests, including in excess of 1,400 at the Mt Arthur mine. 1 Mr Bell has completed a nationally accredited training course for drug and alcohol testing. He also has a Certificate IV in Health Care and a Certificate IV in Pathology with the Royal Australian Navy.

[12] Mr Muller attended the health clinic at the Mt Arthur mine for his random drug and alcohol test shortly after the commencement of his shift at 6:30pm on 20 February 2016. There is a dispute between the parties about when that test commenced. Mt Arthur contends that Mr Muller provided his first urine sample at about 7:05pm and his second sample at about 7:40pm. Mr Muller contends that he provided his first sample at about 6:45pm and his second sample at about 7:05pm.

[13] In his third witness statement Mr Muller stated that he commenced his shift on 20 February 2016 at 6:30pm, was informed that he was required to undertake a drug and alcohol test at approximately 6:30pm to 6:45pm, and was tested at about 7pm. That evidence is consistent with Mr Bell’s evidence that Mr Muller attended the health clinic for a random drug and alcohol test at approximately 7:05pm on 20 February 2016. Mr Muller also gave evidence in his first witness statement that there was a gap of about 20 minutes between giving his first and second samples on 20 February 2016. 2

[14] However, during his examination in chief Mr Muller gave evidence that he provided his first sample on 20 February 2016 at about 6:45pm 3 and his second sample at about 7:05pm.4 Mr Muller gave that evidence in the context of being asked questions concerning documents produced by Mt Arthur in answer to an order for the production of documents. Those documents contained different times to some of the documents provided to Mr Muller at the time. In particular, the time at the bottom of exhibit A7 was “19:40”, rather than “19:10”. Mr Bell gave evidence that he put the 19:40 time on the form after Mr Muller left the health clinic, to indicate when Mr Muller provided his second urine sample.

[15] The inconsistencies between Mr Muller’s evidence in his witness statements and his oral evidence concerning the timing of when he provided his first and second urine samples on 20 February 2016 were pointed out to him in cross examination. 5 Mr Muller was not able to provide an adequate explanation for such inconsistencies.

[16] Mr Muller was taken in cross examination through the timeline of the relevant events leading up to the giving of his first and second urine samples on 20 February 2016. In particular, it was pointed out to Mr Muller that he gave evidence to the effect that he commenced work at 6:30pm on 20 February 2016, and after a 5 or 10 minute toolbox talk he was informed that he had been selected for a random drug and alcohol test. 6 Mr Muller also gave evidence, supported by Mr Bell, that he was the second person tested by Mr Bell on that shift. Mr Muller gave evidence that it takes about 10 minutes to fill in paperwork and provide a sample.7

[17] In my view, it is unlikely that Mr Muller would have been able to provide his first urine sample at 6:45pm on 20 February 2016 in circumstances where he was not advised that he had been selected for random drug and alcohol testing until about 6:35pm or 6:40pm, at which time he had to walk the short distance (about 20m) 8 to the health clinic and then wait for the first person to complete his test.9 In light of these matters, together with the evidence given by Mr Muller in his third witness statement and the evidence given by Mr Bell, as summarised in paragraph [13] above, I find that Mr Muller did provide his first urine sample at about 7:05pm on 20 February 2016. In my view, Mr Muller was giving oral evidence about the times of his tests on 20 February 2016 as part of his attempt to impugn the integrity of Mt Arthur’s drug and alcohol forms. The change in Mr Muller’s evidence in this regard impacts adversely on his credit as a witness in the proceedings.

[18] When Mr Muller arrived in the health clinic for his first drug and alcohol test on 20 February 2016 he selected a cup and took it into the toilet in the health clinic. He came out and provided a urine sample to Mr Bell.

[19] Mr Bell says the urine sample supplied by Mr Muller was “extremely warm to touch, much like touching the side of a fresh cup of coffee”. This alerted Mr Bell to the possibility of the sample being adulterated because it was far hotter, in Mr Bell’s opinion, than human urine is capable of being. Mr Bell gave evidence that he has never seen another urine sample display similar qualities. Mr Muller says he felt the sample cup and it “felt like it was of normal temperature to me”.

[20] The first urine sample provided by Mr Muller did not give a temperature reading on the temperature strip on the side of the cup. Mr Bell says that was because the sample was above 38°Celsius (C). That is an opinion on Mr Bell’s part, for the sample cup does not give any reading if the temperature of the urine in the cup is above 38°C.

[21] Because of the high temperature of the first urine sample provided by Mr Muller, Mr Bell asked Mr Muller if the urine sample was his own, to which Mr Muller answered “yes”. Mr Bell then explained to Mr Muller that the sample was extremely hot and there was no physical way that urine could be that hot. Mr Muller laughed off this observation and said words to the effect: “I am just a hot fella”.

[22] Mr Muller asked Mr Bell about the integrity of the temperature strip on the sample cup and pointed out that the sample cup could be faulty. Mr Muller asked whether Mr Bell could tip the sample into another testing cup. Mr Bell informed Mr Muller that he could not do that.

[23] Mr Bell says that he is confident the temperature strip on the sample cup was working properly because he observed that after about 20 minutes, once the sample provided by Mr Muller had cooled, the temperature strip registered 38°C. Mr Bell also says he looked at the first sample cup at the time he was examining Mr Muller’s second sample and noticed that the temperature on the first sample cup was showing as the same as the temperature on the second sample cup. Mr Muller denies this was the case. He says he looked across at the first sample cup during the time he remained in the health clinic and he did not see a temperature reading on the side of the cup.

[24] Mr Bell then informed Mr Muller that he would need to provide a second urine sample. Mr Muller said he needed to wait in order to provide a second sample.

[25] Mr Bell asked Mr Muller if he had any symptoms that could increase his urine temperature. Mr Muller denied that he had any symptoms of ill-health.

[26] Mr Bell then conducted a urinalysis because one possible cause of a high urine temperature is a urinary tract infection. A urinalysis is a dipstick test to check the components in urine, including white blood cells, nitrates, specific gravity, and acidity. The urinalysis for Mr Muller’s first sample was ineligible because the temperature of the urine sample caused the colours of the test strip to run. Mr Bell had not observed this happen before.

[27] Mr Muller agrees that Mr Bell took his ear temperature. 10 Mr Bell says Mr Muller’s ear temperature registered at 36.4°C. Mr Muller did not see the temperature reading from his ear, but I have no reason to doubt Mr Bell’s evidence in relation to it. Mr Bell says he was trying to eliminate possible reasons why the temperature of Mr Muller’s urine sample could have been so high.

[28] Mr Bell then put a lid on the first urine sample provided by Mr Muller and turned the sample on its side to conduct the drug test. Mr Bell concedes that he should not have proceeded to test the urine sample for drugs because to do so was contrary to the Drug and Alcohol Procedure, in light of the temperature of the urine sample not being within the required range. In any event, because, according to Mr Bell, the sample was so hot, he could not get an accurate reading on the drug test.

[29] I am satisfied, on the balance of probabilities, that the first sample provided by Mr Muller on 20 February 2016 was hotter than 38°C, for the following reasons:

[30] The first urine sample remained on the table while Mr Muller proceeded to provide a second urine sample. The second urine sample was provided about 20 minutes after the first urine sample.

[31] In order to provide a second sample, Mr Muller went into the toilet in the health clinic. Mr Bell waited to hear the flow of urine. Mr Bell says Mr Muller was taking quite some time to provide a second sample, so Mr Bell stood up and walked toward where the bin was located in the health clinic. Mr Muller had not closed the curtain to the toilet area. Mr Bell says he observed Mr Muller reaching to the left hand side of his groin area, and he did not appear to be urinating. Mr Bell says he did not hear a flow of urine whilst Mr Muller was providing the sample. Mr Bell did not observe Mr Muller actually provide the urine sample as he had his back towards Mr Bell. Mr Muller does not dispute that Mr Bell was standing behind him when he produced the second sample. Based on Mr Bell’s pathology collecting experience, he formed the view that Mr Muller was not urinating into the sample cup. Mr Muller denies Mr Bell’s assertion that he did not provide his own urine to Mr Bell on 20 February 2016.

[32] I note that I have not been asked to, and do not, make any finding about whether Mr Muller supplied someone else’s urine when he provided Mr Bell with two urine samples on 20 February 2016.

[33] The second urine sample provided by Mr Muller to Mr Bell had a temperature of 34°C, but Mr Bell says it had the same physical presentation as the previous sample, namely, it was quite turbid and cloudy.

[34] Mr Bell proceeded to test the second urine sample for drugs. Mr Bell conducted the test because, despite the similarities to the first sample, the second sample fell within the testing requirements of the Drug and Alcohol Procedure in terms of temperature and creatinine content. The second sample was negative for drugs.

[35] While he was performing the drug test on the second sample, Mr Bell describes Mr Muller’s conduct and demeanour as follows:

[36] In cross examination Mr Bell said that Mr Muller “kept getting up and moving it [the sample] into the space that I was doing my assessment in … I felt very uncomfortable. His motions were quite irrational… The comments that Mr Muller was making regarding the integrity of the sample. He said things to the effect of ‘even the temperature is normal’ and ‘look, the lines are all there’, ‘I’m good to go’. He positioned himself in between myself and the sample and every time I moved it towards me, he’d then jerk his hand and move it back towards…” 11

[37] Mr Muller denies these allegations. He says that he did not act in an intimidating or threatening manner. Mr Muller contends that he sat in a chair next to Mr Bell, but Mr Muller was not the person who positioned the chairs in that way. Mr Muller denies that he was intruding into Mr Bell’s personal space. Mr Muller says that he only ever touched the first sample cup and he did not touch the second sample cup. Mr Muller claims that his tone was polite and respectful during the entire testing procedure.

[38] Mr Bell accepts that Mr Muller did not make any threats to him, did not lunge at all towards him, did not tell him to do anything he did not want to do, and did not fail to comply with any instruction given to him by Mr Bell. Mr Bell also conceded that Mr Muller “appeared normal” during their discussions in relation to the first and second samples. 12

[39] I accept that Mr Bell felt intimidated during the time that he was testing the second sample. I found Mr Bell to be an honest and reliable witness. He gave evidence in a direct and responsive manner. He also made a number of concessions in cross examination in relation to the various ways in which he failed to comply with Mt Arthur’s testing procedures and policies at the time. Those issues are dealt with below.

[40] Mr Bell completed the drug test on the second urine sample and it was negative.

[41] Mr Muller observed Mr Bell complete the paperwork for the second sample. A copy of the Drug and Alcohol Testing Form provided by Mr Bell to Mr Muller records, inter alia, the following information:

[42] Mr Bell says that, given the way Mr Muller was reacting, he apologised to Mr Muller in an attempt to neutralise the situation so that Mr Muller would be agreeable to providing another sample supervised by a relevant manager. Mr Bell contends he said to Mr Muller words to the effect: “Look, man, I’m sorry. Like it’s just a process.” Mr Muller agrees that Mr Bell said words to this effect, but contends he also went on to say “you’re all good. Proceed to work.” I find that Mr Bell did say words to this effect to Mr Muller, given there is no dispute that Mr Bell allowed Mr Muller to proceed to work.

[43] Mr Bell says that he felt keeping Mr Muller in the health clinic was not something that he was “comfortable or capable of doing because Mr Muller had made him feel intimidated and unsafe during the process”.

[44] Mr Muller contends that he observed Mr Bell throw the second urine sample into the biohazard bin in the health clinic as Mr Muller was walking out of the health clinic. Mr Bell denies this allegation.

[45] Mr Muller’s contention that Mr Bell threw the second sample in the biohazard bin is supported by the fact that the Testing Policy requires (at section 6.3.7) a negative sample to be disposed of into the biohazard bin and Mr Muller relies on the fact that the copy of the form provided to him suggests a negative test result, as did the fact that Mr Bell told him he was right to go to work. That is, Mr Muller contends that Mr Bell acted in accordance with the correct procedure by disposing of the second sample into the biohazard bin. This argument has some force and I have had regard to it in making my finding in relation to this factual dispute.

[46] This contested issue of fact came to assume more significance in the dispute by reason of the undisputed conduct on the part of Mr Bell in asking Mr Muller to sign a chain of custody form for the first and second urine samples when Mr Muller returned to the healthcare clinic after 9pm on 20 February 2016, in connection with the direction by Mt Arthur for Mr Muller to provide a further (third) urine sample. Section 7 of the Testing Policy requires that:

[47] Mr Bell concedes that he failed to comply with the requirement in the Testing Policy for a chain of custody form to be completed at the time a suspected adulterated sample has been obtained from a person and for the tester and the person tested to remain with the sample at all times until the chain of custody process is complete. The form is then sent together with the sample off to the laboratory for further testing. Mr Bell says he did not complete this process at the time because he “did not feel safe completing the chain of custody earlier without a witness”.

[48] Notwithstanding Mr Bell concedes that he failed to comply with the Testing Policy in relation to the chain of custody form, there is a material difference between, on the one hand, as is contended by Mr Bell, leaving a sample on a desk and not completing the form for more than one hour until the person tested returns to the health clinic and, on the other hand, as is contended by Mr Muller, the tester putting the sample into the biohazard bin with other samples and then later taking the sample (or what is claimed to be the sample) out of the biohazard bin and asking the person tested to complete a chain of custody form in relation to the sample. The latter situation is obviously more serious than the former.

[49] I prefer Mr Bell’s evidence to Mr Muller’s evidence in relation to this issue and, on that basis, find that Mr Bell did not put Mr Muller’s second urine sample into the biohazard bin before later asking Mr Muller to sign a chain of custody form in relation to the sample. I make this finding for two reasons:

[50] Mr Bell says it was his intention to discuss his findings and concerns with Mr Muller’s Open Cut Examiner, Mr Simon Hodge, because Mr Bell believed the urine samples provided by Mr Muller were not his own. When Mr Bell attempted to contact Mr Hodge at about 7:45pm, he says Mr Hodge was not available as he was operating in the pit.

[51] Mr Hodge gave evidence that, at some time during the evening on 20 February 2016, he received a call on the two-way radio from Mr Bell, asking him if he could attend the health clinic. At the time Mr Hodge was in the pit relocating machinery so he told Mr Bell that he would be some time.

[52] I accept the evidence given by Mr Bell and Mr Hodge in relation to this initial discussion between them over the two-way radio, given the broad consistency between their accounts.

[53] Mr Bell undertook drug and alcohol tests of five other people and did a patient presentation while he waited for Mr Hodge to get back to him. During this time, Mr Bell says that he placed both of Mr Muller’s urine samples (with their lids on) on top of the fridge in the health clinic. The fridge is located next to Mr Bell’s desk in the first aid room. Mr Bell says the samples did not leave his sight, except at one point where he left the room briefly, at which time the room was locked. I accept Mr Bell’s evidence in this regard.

[54] Mr Bell had not heard back from Mr Hodge by about 8:40pm, so he tried to contact his supervisor, Ms Natalie Heritier. Mr Bell was not able to speak to Ms Heritier. As a result, he then contacted Mt Arthur’s Health, Safety and Environment Manager, Mr Dalessandro, at about 8:51pm.

[55] Mr Bell informed Mr Dalessandro about his concerns in relation to the legitimacy of the samples provided by Mr Muller, and Mr Dalessandro agreed with his concerns and indicated to him that Mr Muller needed to be identified for a “for cause” test. In particular, Mr Bell believed that Mr Muller may have potentially been under the influence of drugs which potentially may have caused a hazard or risk to himself and/or other employees at the mine.

[56] Mr Bell then contacted Mr Hodge on his two-way radio and said that as matter of urgency his assistance was required on an issue. Mr Hodge informed Mr Bell that he was still unavailable and would continue to be so for a prolonged period, so Mr Bell spoke to the next available Open Cut Examiner, Mr Bevan Moir.

[57] Mr Bell met Mr Moir at approximately 9:10pm. Mr Bell informed Mr Moir of his concerns in relation to Mr Muller’s samples and, according to Mr Bell, Mr Moir agreed to have Mr Muller tested “for cause”. Mr Bell requested that Mr Muller be escorted back to the health clinic and supervised so that there was no question of the integrity of the further sample that was to be collected from him.

[58] Mr Muller met Mr Moir at a crib hut. Mr Moir informed Mr Muller that the tester believed his second sample was adulterated and they wanted a third sample. Mr Muller responded by saying “no problems. I’m happy to give one.”

[59] Mr Muller drove with Mr Moir to the deployment area. When they arrived there, Mr Muller went to grab his bag and was told by Mr Moir that he could not touch his bag. Mr Muller was surprised by this and felt that the manner in which he was being treated was like that of a criminal. Mr Muller started to get annoyed when he was not able to touch his bag. 14

[60] After Mr Muller arrived back in the health clinic, Mr Bell went through a chain of custody form with Mr Muller for the first two urine samples provided by Mr Muller earlier that evening. That process involved taking the lid off the samples and completing the security seals and chain of custody form.

[61] Mr Muller says that he did not want to sign a chain of custody form because he had been out of the health clinic for some time, but he did so because he believed he had no choice and he would be disciplined if he refused to sign the form. 15

[62] I accept Mr Bell’s evidence to the effect that he informed Mr Muller:

[63] Mr Hodge arrived at the health clinic and took over the role being undertaken by Mr Moir as the relevant supervisor. Mr Moir was not called by Mt Arthur as a witness in this case. However, there is no material factual dispute in relation to what was said by Mr Muller and Mr Moir when they were the only persons present. The other conversations to which they were each present or in which they each participated on 20 February 2016 also involved other witnesses such as Mr Bell and Mr Hodge, both of whom were called to give evidence. Because the rule in Jones v Dunkel does not operate to require a party to give merely cumulative evidence, 17 I decline to draw an inference from the fact that Mt Arthur did not call Mr Moir to give evidence in these proceedings.

[64] Before Mr Moir left the health clinic, Mr Muller asked if he could go outside for a cigarette and Mr Moir said he could not do so. 18

[65] Mr Hodge says that he was in the health clinic for about half an hour in connection with Mr Muller’s attendance there to give a further urine sample. Mr Hodge explained the relevant sequence of events as follows:

[66] In his third witness statement Mr Muller took issue with the following parts of this section from Mr Hodge’s witness statement:

[67] In an interview with Mt Arthur on 22 February 2016, Mr Hodge said that Mr Muller had requested to go outside with Mr Hodge to have a smoke. 19 In light of that contemporaneous record, I find that Mr Muller did ask to go outside for a cigarette with Mr Hodge. That request was within the scope of what is allowed under the Testing Policy, because it only prohibits (at section 5) a person from leaving the testing facility without supervision until the testing process has been concluded.

[68] I accept Mr Hodge’s evidence that when he refused to allow Mr Muller to leave the health clinic for a cigarette Mr Muller “got very agitated, argumentative, wanted to call the union delegate and got quite upset.” 20

[69] I also accept Mr Muller’s evidence that he refused to provide a third sample and gave the reasons set out in paragraph [66(b)] above for his decision in that regard.

[70] Mr Bell says that he explained to Mr Muller that, for the Drug and Alcohol Procedure, a refusal is considered as bad as a non-negative result. Mr Muller denies he was advised of this by Mr Bell, but agrees that Mr Hodge informed him that he had to provide a third sample and the refusal to provide a third sample would be considered a breach of the procedure. 21 In my view, it is not material whether it was Mr Bell or Mr Hodge who provided this information to Mr Muller. What is of some importance is that Mr Muller was aware at the time that his refusal to provide a further urine sample would be considered a breach of Mt Arthur’s drug and alcohol procedures.

[71] Mr Muller was stood down and was driven home by Mr Hodge. Mr Muller did not return to work until 29 April 2016.

[72] On 21 February 2016, Mr Ayre and Mr Tanner met with representatives from Mt Arthur to discuss Mr Muller’s refusal on the previous day to provide a third sample. At that meeting Mr Ayre raised the accusation that Mr Bell had retrieved one of Mr Muller’s urine samples from the biohazard bin on 20 February 2016.

[73] Mr Muller now says that part of the reason he refused the third drug test on 20 February 2016 was because Mr Bell had thrown his second urine sample in the biohazard bin and then retrieved it, or what Mr Bell purported to be his second urine sample, so he could complete a chain of custody form. However, it is remarkable, in my view, that Mr Muller did not raise that issue with Mr Bell or anyone from Mt Arthur at the time that he gave his explanation on 20 February 2016 for refusing the test. This alteration to Mr Muller’s explanation for his conduct impacts adversely on his credit.

[74] Further, Mr Muller’s credibility was damaged by reason of there being an inconsistency between him saying, on the one hand, that he signed the chain of custody form because he thought he would be disciplined if he refused to do so and, on the other hand, Mr Muller refusing to provide the third urine sample even though Mr Hodge told him that a refusal to provide a third sample would be considered a breach of the procedure. 22

7 June 2016

[75] At about 6:20am on 7 June 2016, Mr Bell says he was departing the health clinic at the end of his shift and saw Mr Muller walking towards him. Mr Bell says that he shifted his path in order to avoid Mr Muller’s path of travel, but Mr Muller continued to motion towards him. As Mr Muller passed him, Mr Bell contends that Mr Muller lurched towards him and called him a “grub”. Mr Bell says that this caused him to feel intimidated and unsafe. Mr Bell then prepared a statement of what happened and reported it to his supervisor. Mr Muller denies these allegations.

[76] I do not need to make a finding in relation to what happened on 7 June 2016 because Mt Arthur did not investigate the allegations and the contested issue does not bear in any material way on any of the questions I have been asked by the parties to arbitrate.

Breach of the Drug and Alcohol Procedure?

[77] I am satisfied that Mt Arthur had a reasonable basis to require Mr Muller to undertake a “for cause” drug test on the night of 20 February 2016. In particular, it was reasonable for Mt Arthur to rely on Mr Bell’s observations and concerns during the provision by Mr Muller of his first two urine samples, including the hot temperature of the first sample, the fact that the first and second samples were the same temperature at the same time, Mr Bell’s observations (from behind) of Mr Muller providing his second urine sample and Mr Bell’s concern that the second urine sample may not have come from Mr Muller, Mr Bell’s opinion that the second sample provided by Mr Muller was turbid and cloudy, and Mr Bell’s feeling of intimidation during his assessment and testing of the second urine sample provided by Mr Muller. On that basis, Mt Arthur reasonably deemed Mr Muller to be potentially under the influence of drugs.

[78] Mr Muller contends that he did not breach the Drug and Alcohol Procedure by refusing to provide a third urine sample on 20 February 2016. To that end, Mr Muller essentially relies on three arguments:

[79] As to Mr Muller’s first argument, I am satisfied that Mt Arthur has the right under the Drug and Alcohol Procedure and the Testing Policy to require an employee to undertake a drug and alcohol test “for cause”, provided it has a reasonable basis for deeming the person to be potentially under the influence of drugs and/or alcohol. I also find that Mt Arthur can exercise that right even if the employee has provided one or more urine samples in a random drug and alcohol test earlier on the same day. There is nothing in the Drug and Alcohol Procedure or the Testing Policy which precludes Mt Arthur from requiring an employee to undertake such a further test “for cause”. Further, the purpose of the Drug and Alcohol Procedure and the Testing Policy is to dissuade persons attending the Mt Arthur mine from being under the influence of drugs or alcohol and to protect those at the mine from the risks associated with persons under such an influence. This purpose supports the right of Mt Arthur to require an employee to undertake a drug and alcohol test at any time “for cause”, regardless of whether or not the employee has participated in a random drug and alcohol test on the same day.

[80] I have earlier found that Mr Bell informed Mr Muller that he was being directed to undertake a further drug test “for cause” on 20 February 2016. However, even if I had found that the expression “for cause” was not used by Mr Bell and instead Mr Muller had only been asked to provide a “third sample”, my conclusion would not have been any different. The language used in communications with the employee to be tested is not determinative. The question is whether Mt Arthur had a reasonable basis to deem a person to be potentially under the influence and therefore required to undertake a drug and/or alcohol test “for cause”.

[81] As to Mr Muller’s second argument, I am satisfied that Mr Bell failed to follow the applicable policies and procedures in a number of material ways in connection with the first two urine samples he obtained from Mr Muller on 20 February 2016. 23 However, that did not give Mr Muller the right refuse the “for cause” test later on 20 February 2016. I make that finding for two reasons:

[82] Mr Bell’s material failures to follow the applicable policies and procedures in connection with the first two urine samples he obtained from Mr Muller on 20 February 2016 included the following:

[83] Although Mr Bell gave evidence that it was his usual practice to contact the relevant employee’s supervisor before requesting a second urine sample if the employee provides a urine sample that falls outside the relevant temperature range, I am satisfied that this was not a requirement of any of the relevant policies or procedures.

[84] Mr Muller contends that Mr Bell also breached the relevant policies and procedures by testing the second urine sample provided by Mr Muller on 20 February 2016. In support of this contention Mr Muller relies on the following parts of section 6.3 of the Testing Policy:

[85] It is not clear from the procedure whether the prohibition on conducting any further on-site testing applies to only the first sample or both samples. The better view, in my opinion, is that the prohibition on further on-site testing only applies to the sample which is outside the relevant temperature range. Such a construction of the procedure enables the tester to test a second urine sample for the presence of one or more nominated drugs and thereby attempt to protect employees at the workplace by preventing any employee who may be under the influence of a nominated drug from operating heavy and dangerous equipment. 34 That is consistent with the primary purpose of the relevant policies and procedures.

[86] Mr Muller also contends that Mr Bell breached the relevant policies and procedures by sending him to work, rather than arranging for him to be transported home, after providing a urine sample outside the required temperature range on 20 February 2016. I do not agree with that contention, notwithstanding the fact that it is supported by the flowchart in section 8 of the Drug and Alcohol Procedure. In my view, the relevant procedures do not require an employee to be transported home in those circumstances. The requirement in the Drug and Alcohol Procedure that “a person producing a non-negative result other than to declared medication will be transported home” does not, in my view, apply to a urine sample which is outside the relevant temperature range. That is because such a sample does not fall within the proper meaning of the expression “non-negative result” in the procedures. The expression “non-negative result” is used extensively in the Testing Policy. In particular, the expression is used in that policy in the context of considering the types of results which may be produced when a urine sample is tested for synthetic cannabinoids (section 6.3.3) and other particular drugs (section 6.3.5). The expression is used again in the heading to section 9 of the Testing Policy in the context of the person leaving the site and being transported home in the event of a “positive (non-negative) test result”. Those parts of the policy suggest that a urine sample which is outside the relevant temperature range is not the same as a non-negative result. Further, it is clear that any employer would want an employee who has provided a sample which has been tested “positive (non-negative)” to synthetic cannabinoids or other particular drugs to be sent home, rather than operating plant or equipment. However, this argument does not apply to a person who has provided a urine sample outside the temperature range. There is a proper basis for further off-site testing of such a sample, but it does not give rise to the same level of risk as a “positive (non-negative)” test for drugs.

[87] As to Mr Muller’s third reason, I am satisfied that Mt Arthur had the right to test and retain Mr Muller’s DNA. I give my reasons for that conclusion in paragraphs [88] to [96] below. Further, Mr Muller was not aware at the time he refused to undertake the drug test on 20 February 2016 that Mt Arthur wished or intended to test or retain his DNA. As a result, that was not a proper basis for him to refuse the drug test on 20 February 2016.

[88] Section 4 of the Drug and Alcohol Procedure includes the following provision in relation to any suspicion of tampering with a urine sample:

[89] Similarly, section 7 of the Testing Policy provides that “samples outside temperature/colour range, suspected adulteration or tampering, and any other further test requests such as synthetic cannabinoids must be sent for laboratory confirmation testing.”

[90] The expression “confirmation testing” is not defined or explained in either the Drug and Alcohol Procedure or the Testing Policy.

[91] When an employee is required by Mt Arthur to undertake a drug and alcohol test, a testing form is completed by the employee to be tested and the drug and alcohol tester. That form includes the following consent which must be given by the employee to be tested:

[92] A chain of custody form must be completed in relation to a urine sample given by an employee before the sample is sent off for further analysis or testing. The employee concerned must provide the following certification and consent on the chain of custody form:

[93] Mr Muller contends that because the Drug and Alcohol Procedure and the Testing Policy permit Mt Arthur to test for specified drugs and the consents provided by an employee, as set out in the previous two paragraphs, are limited to particular drugs, Mt Arthur has no right to send an employee’s urine sample off for DNA testing or analysis. I reject this argument. The Drug and Alcohol Procedure and the Testing Policy set out procedures and processes aimed at identifying and responding to the risk of tampering by an employee with a urine sample. One way an employee may tamper with a urine sample is to provide urine from another person or animal instead of their own urine when required to provide a urine sample as part of a drug and alcohol test. If Mt Arthur were only able to have a urine sample supplied by an employee sent away for testing at a laboratory for particular drugs, an employee who had tampered with a urine sample by providing urine from another person or animal instead of their own urine would not be detected unless they were caught in the act of tampering, which is unlikely given Mt Arthur does not have the right under its policies and procedures to observe an employee supplying a urine sample direct from their body. 35 In such a scenario, the urine sample provided by the employee would not test positive for any of the specified drugs (assuming the employee obtained the urine sample from a person or animal not under the influence of drugs) and a test for specified drugs would not reveal whether the urine sample came from the employee tested.

[94] The expressions “confirmation testing”, in the Drug and Alcohol Procedure and the Testing Policy, and “subsequent analysis” and “subsequent testing”, in the consent provided by the employee at the commencement of the testing process, are broad. In my view, they are broad enough to include DNA testing or DNA analysis. In addition to this analysis of the meaning of the relevant text, the context and purpose of the relevant policies and procedures also supports such a conclusion. In particular, the context includes the fact that the Drug and Alcohol Procedure and the Testing Policy set out procedures and processes aimed at identifying and responding to tampering by an employee with a urine sample. The purpose of the relevant policies and procedures is set out in paragraph [79] above.

[95] The evidence revealed that Mt Arthur had the urine samples supplied by Mr Muller on 20 February 2016 DNA tested against other urine samples supplied by him on different dates. The DNA testing was limited, in that it only tested whether the urine samples came from the same or different people; Mt Arthur did not ask the laboratory to provide details of the profiles or other information about the person who provided the urine sample. The NSW Forensic & Analytical Science Service conducted the DNA testing and retained the DNA extracts forever, so that if there is a subsequent challenge to the test results another expert would be able to test the DNA extracts themselves.

[96] In my view, Mt Arthur did not contravene its Drug and Alcohol Procedure or its Testing Policy by having the DNA from the urine samples supplied by Mr Muller extracted and stored in this way.

Conclusion as to breach of Drug and Alcohol Procedure

[97] For the reasons set out above, I am satisfied that Mr Muller breached the Drug and Alcohol Procedure by refusing to undertake a drug test on 20 February 2016.

Question 2 – was it unreasonable for Mt Arthur to issue Mr Muller with the final written warning dated 30 June 2016?

[98] By letter dated 30 June 2016, Mt Arthur gave Mr Muller a final written warning for refusing to provide a third urine sample as part of a drug test on 20 February 2016 and thereby breaching the Drug and Alcohol Procedure. The final written warning provides, in part, as follows:

[99] Mt Arthur’s Disciplinary Policy and Procedure is not incorporated into the Enterprise Agreement. The issue of disciplinary action is not dealt with in any substantive way in the Enterprise Agreement. In those circumstances, the question of disciplinary action is a matter of managerial prerogative and the Commission as the arbitrator of a dispute such as the present would not interfere with the employer’s decision to impose disciplinary action such as a warning unless it was unjust or unreasonable. 36 The decision may be unjust if, for example, the employee did not engage in the misconduct alleged by the employer. The decision would be unreasonable if no reasonable person in the position of the employer could have made the decision.37

[100] I have already found that Mr Muller breached Mr Arthur’s Drug and Alcohol Procedure by refusing to undertake a drug test on 20 February 2016. He therefore engaged in the misconduct alleged by Mt Arthur.

[101] I am satisfied that Mt Arthur undertook a detailed and thorough investigation into the incident before issuing the final written warning to Mr Muller on 30 June 2016. That investigation was initially undertaken by Mr Parton and later by Ms Farr. The investigation included interviewing relevant witnesses, reviewing relevant documents and giving Mr Muller an opportunity to respond to the allegations before findings were made and the warning was issued.

[102] Mr Muller and Mr Ayre say that Mr Muller was told at a meeting with Ms Farr and Mr Hodge on 29 April 2016 that he would be issued with a final warning. Mr Muller relies on that alleged statement to support his case that Mt Arthur did not conduct a reasonable investigation and instead made up its mind as to his “guilt” very early on in the process.

[103] I reject the argument that Mt Arthur did not conduct a reasonable or proper investigation into the incident. Ms Farr took over the investigation on her return from maternity leave on 2 May 2016. Ms Farr was certain she did not return from maternity leave until 2 May 2016 and did not attend any meeting with Mr Muller on 29 April 2016. I accept Ms Farr’s evidence in that regard. It was apparent from her evidence that Ms Farr has a good recollection of the relevant events and I am satisfied that she would accurately recall the date on which she returned from maternity leave. In addition, Mr Hodge gave evidence that he could not recall Mr Muller being told on 29 April 2016 that he was to be given a final warning. 38 On the basis of the evidence given by Mr Hodge and, in particular, Ms Farr, I find, on the balance of probabilities, that Mr Muller was not told on 29 April 2016 that he would be given a final warning.

[104] I accept Ms Farr’s evidence in relation to the detailed steps she took to investigate the matter when she assumed responsibility for the investigation shortly after her return to work on 2 May 2016. Ms Farr met with Mr Muller on 19 May 2016 and issued him with a final written warning on the basis of the investigation undertaken by Mr Parton. However, Mr Muller objected to the warning and put it in dispute. Ms Farr then spent a considerable amount of time reviewing the relevant evidence, interviewing witnesses (including Mr Muller) before making her recommendation that a final warning was appropriate, albeit it the written warning should be reissued with minor amendments. Ms Farr’s recommendation was accepted and the final written warning was issued to Mr Muller on 30 June 2016.

[105] In summary, I am satisfied that it was not unreasonable for Mt Arthur to issue Mr Muller with the final written warning dated 30 June 2016. Mt Arthur conducted a reasonable investigation. It concluded, and I have found, that Mr Muller breached the Drug and Alcohol Procedure by refusing to take a drug test on 20 February 2016. That was a serious matter. It warranted a final written warning. I am satisfied that the decision by Mt Arthur to give Mr Muller a final written warning in the terms that it did is not a decision that no reasonable person in the position of the employer could have made.

Question 3 – is it unreasonable for Mt Arthur to require Mr Muller to meet with Mt Arthur’s EAP provider?

[106] Section 4 of the Drug and Alcohol Procedure states that a “person who refuses a test will be considered to have breached this procedure”.

[107] Section 7 of the Drug and Alcohol Procedure is entitled “Management of Confirmed Positive Results”. It provides that:

[108] Mr Muller has not breached the Drug and Alcohol Procedure by recording a confirmed positive result. At no time has Mr Muller had a positive result for drugs or alcohol. Accordingly, Mt Arthur is not required to follow the process set out in section 7 of the Drug and Alcohol Procedure when deciding what disciplinary action should be taken against Mr Muller in respect of his breach of that procedure by refusing a drug test.

[109] Because the Drug and Alcohol Procedure is silent in relation to the disciplinary action or process to be undertaken by Mt Arthur in the event of a refusal by an employee to undertake a drug test, Mt Arthur has a considerable discretion in relation to the way in which it may deal with such a breach. It is a question of managerial prerogative and the Commission as the arbitrator of a dispute such as the present would not interfere with the employer’s decision unless it was unjust or unreasonable. 39

[110] The circumstances relating to the refusal and the seriousness of the breach are obviously relevant considerations. I have already concluded that Mr Muller did not have a proper basis to refuse the additional drug test on 20 February 2016. Having regard to all the relevant circumstances, as set out above, I am satisfied that the breach of policy was serious. I am also satisfied in the circumstances that it was appropriate for Mt Arthur to treat Mr Muller’s breach of section 4 of the Drug and Alcohol Procedure as though he had recorded a confirmed positive result. I therefore find that it is not unreasonable for Mt Arthur to require Mr Muller to meet with its EAP provider. That is a lawful and reasonable direction in the circumstances.

[111] There is a further, and separate, reason why it is not unreasonable for Mt Arthur to require Mr Muller to meet with its EAP provider. That reason is based on what Mr Muller told the General Manager of the Mt Arthur mine, Mr Boshoff, on 30 June 2016. In particular, I am satisfied for the reasons set out below that at the 30 June 2016 meeting Mr Muller told Mr Boshoff that:

[112] Mr Muller vehemently denies making such a statement to Mr Boshoff. Mr Muller also denies that he has taken any illegal drugs for in excess of 25 years.

[113] Mr Muller contends that his evidence in relation to the discussion with Mr Boshoff on 30 June 2016 should be preferred for the following reasons:

[114] Each of these arguments has some force, and must be weighed against the matters set out below.

[115] It is true that Mr Muller attended the meeting on 30 June 2016 without representation, but I am satisfied that he also attended the meeting on 9 June 2016 with Mr Boshoff without representation. Mr Muller attended all other meetings in relation to these matters with representation.

[116] I accept Mr Scott Muller’s unchallenged evidence. It supports Mr Muller’s argument that he did not make the admission alleged by Mr Boshoff, but it is not determinative of that question.

[117] Mr Boshoff only commenced working at the Mt Arthur mine in mid-May 2016. Prior to that time, he was employed as the General Manager at the Daunia mine in the Bowen Basin, Queensland. Prior to June 2016, Mr Boshoff did not know and had not communicated with Mr Muller. Mr Boshoff’s first interaction with Mr Muller was when he met with him on 9 June 2016. Mr Boshoff met with Mr Muller at that time in response to a request by Mr Muller for such a meeting. Mr Muller asked Mr Boshoff at that meeting to cancel the written warning issued to him on 18 May 2016. Mr Boshoff had not read or seen the written warning prior to that meeting. At that meeting Mr Boshoff committed to revert back to Mr Muller about his request to have the written warning cancelled after he spoke to the people involved in the investigation. 40

[118] In the period between 9 June and 30 June 2016, Mr Boshoff met with a number of employees, including Ms Farr, about the final written warning issued to Mr Muller. As a result of those discussions, Mr Boshoff agreed with Ms Farr’s recommendation to reissue a final written warning to Mr Muller and Mr Boshoff proceeded to sign the warning letter.

[119] Mr Boshoff then met with Mr Muller on 30 June 2016 for the purpose of issuing the revised final written warning to Mr Muller. The only persons present in that meeting were Mr Boshoff and Mr Muller. Mr Boshoff informed Mr Muller that he was not going to retract the warning letter. After some further discussion Mr Boshoff says he asked Mr Muller “if there was anything else he would like to share with me that he thinks I should know and can help him with.” It was at this point that Mr Boshoff says Mr Muller made the admission set out in paragraph [111] above and then broke down into tears.

[120] It is Mr Muller’s case that Mr Boshoff is lying and he made up the alleged admission to justify or support the decision by Mt Arthur to issue the final warning to him on 30 June 2016. That is a very serious allegation, as is the allegation by Mt Arthur that Mr Muller is lying in these proceedings by denying that he made the admission alleged by Mr Boshoff. It is appropriate to apply the Briginshaw standard to those allegations.

[121] One matter which is relevant to my assessment of whether Mr Muller made the alleged admission is the fact that there is no history of dealings, or “bad blood”, between Mr Boshoff and Mr Muller. That fact is not determinative, but it should be given some weight because it rules out the possibility that Mr Boshoff was motivated to lie as an act of retribution for some prior conduct on the part of Mr Muller. There remains the possibility that Mr Boshoff is being dishonest because he believes it will assist Mt Arthur in these proceedings. Similarly, it is possible that Mr Muller is being dishonest to enhance his prospects of success in these proceedings. Whether a witness has a motive to lie can be relevant to a finding of credit. 41

[122] Mr Boshoff presented as a careful witness. He answered the questions asked of him in a precise and direct manner. He explained why Mt Arthur did not dismiss Mr Muller, or take other disciplinary action against him, on the basis of the admission Mr Boshoff says Mr Muller made on 30 June 2016. In particular, Mr Boshoff said that the discussion he had with Mr Muller on 30 June 2016 was “in confidence and I felt the risk posed would be managed by the increased testing that flowed from the final written warning.” 42 Mr Boshoff also explained that Mt Arthur had not taken any action against Mr Muller in relation to the determination by the NSW Forensic and Analytical Science Service that the urine samples allegedly supplied by Mr Muller to Mt Arthur on 20 February 2016 were from a different person than the urine samples provided by Mr Muller on 29 April 2016 and 1 August 2016, because the chain of custody requirements were not met in relation to the collection of urine samples from Mr Muller on 20 February 2016.43

[123] After observing Mr Boshoff give evidence and considering the substance of his evidence, I formed the view that he was trying to help, rather than punish, Mr Muller, as well as ensure the employees and contractors at the Mt Arthur mine are protected from the risks associated with a person at the Mine being under the influence of alcohol or drugs. 44

[124] For the reasons set out above, I find that Mr Boshoff is a reliable and credible witness. I prefer his evidence over Mr Muller’s evidence in relation to the alleged admission on 30 June 2016.

Question 4 – has the drug and alcohol testing required of Mr Muller by Mt Arthur since 20 February 2016 been unreasonable and/or in accordance with Mt Arthur’s policies and procedures?

[125] Mr Muller has been required to undertake drug and alcohol testing at the Mt Arthur mine on two occasions since 20 February 2016. The first occasion was on his first day back at work, 29 April 2016, and the second occasion was on 1 August 2016. That is not an unreasonable number of tests for an employee who has breached the Drug and Alcohol Procedure.

29 April 2016

[126] Section 7 of the Drug and Alcohol Procedure requires an employee who has a “confirmed positive test result” to “provide a negative result to an on-site drug and alcohol test on their first day returning to work and prior to commencing their shift”. This requirement did not apply to Mr Muller, because he has never had a “confirmed positive test result”. However, because Mr Muller breached the Drug and Alcohol Procedure by refusing a drug test on 20 February 2016, I am satisfied that it was reasonable for Mr Muller to undergo a drug and alcohol test on his first day back at work (29 April 2016).

[127] Mr Muller contends that the drug and alcohol test he was required to undertake on 29 April 2016 was unreasonable and/or not in accordance with Mt Arthur’s policies and procedures for three reasons:

[128] As to Mr Muller’s first argument, given that 29 April 2016 was Mr Muller’s first day back at work after having been suspended since 20 February 2016 in connection with his refusal to participate in a further drug test on that day, I am satisfied that it would not have come as any surprise to Mr Muller or any of the employees with whom he worked that he was required to undertake a drug and alcohol test before commencing work on the morning of 29 April 2016. 46 Mr Ayre was present at the test in his capacity as Mr Muller’s representative or support person. Mr Hodge and Mr Dalessandro did not conduct the test, but they were there to ensure the correct procedure was followed.47 In my view, that was appropriate, having regard to what took place on 20 February 2016. It was also appropriate in the circumstances for Mr Ayre, Mr Hodge and Mr Dalessandro to walk with Mr Muller from the meeting to the health clinic and for him to be tested before the other employees who had been selected for random tests. I am satisfied that the manner in which the drug and alcohol test on 29 April 2016 was arranged and conducted was not unreasonable or other than in accordance with Mt Arthur’s policies and procedures.

[129] As to Mr Muller’s second argument, Mt Arthur contends that the urine sample provided by Mr Muller on 29 April 2016 was not sent away for further testing or analysis arbitrarily, unfairly or because Mr Muller was being singled out or targeted, but rather because the sample supplied by Mr Muller produced a non-negative result and the Drug and Alcohol Procedure required it to be sent for further testing or analysis.

[130] Mr Muller submits that his evidence should be preferred over Mt Arthur’s evidence in relation to this issue because, first, the Drug and Alcohol Testing Form provided by the tester to him was not marked negative or non-negative and, secondly, Mt Arthur did not call any evidence from the tester or Mr Dalessandro.

[131] The Drug and Alcohol Testing Form provided by the tester to Mr Muller was not marked negative or non-negative. However, the Drug and Alcohol Testing Form produced by Mt Arthur in response to an order for production of documents is marked non-negative at the foot of the first page. 48 It would seem that the company’s copy of the document has had the non-negative box ticked after Mr Muller’s copy of the document was provided to him.

[132] More important is the fact that the second page of the Drug and Alcohol Testing Form, on both copies of the document, contains a signed declaration made by Mr Muller declaring himself fit for work. The Drug and Alcohol Procedure relevantly provides that:

…

[133] The flow chart on page 7 of the Drug and Alcohol Procedure also shows that an employee who has produced and non-negative sample which is consistent with declared medication will be “return[ed] to work”.

[134] The second page of the Drug and Alcohol Testing Form has the benzodiazepines box ticked to indicate “which test was non-negative” and includes a handwritten list of medications which must be listed “if non-negative site screen test is consistent with medication declared”. Further, on the first page of that form Mr Muller has declared the same medications that are listed on the second page.

[135] Having regard to the matters set out the previous four paragraphs, I am satisfied, on the balance of probabilities, that the urine sample supplied by Mr Muller on 29 April 2016 tested non-negative for benzodiazepines and Mr Muller was permitted to go to work because he declared that he had taken various medication and that he was fit for work. I am also satisfied that Mr Muller’s urine sample was sent away for further testing or analysis because it generated a non-negative result and Mt Arthur’s conduct in that regard was not arbitrary, unfair or an attempt to single-out or target Mr Muller, nor was it a breach of the Drug and Alcohol Procedure or the Testing Policy. The comment by the tester to Mr Muller that he was “all clear” should, in the context of the documentary evidence which I have referred, be construed as the communication to Mr Muller that he was able to return to work because he had produced a non-negative sample which was consistent with declared medication.

[136] Further, in light of the documentary evidence to which I have referred, I decline to draw an inference from the fact that Mt Arthur did not call Mr Dalessandro or the tester (who is not employed by Mt Arthur) to give evidence in these proceedings. The rule in Jones v Dunkel only applies where a party is “required to explain or contradict” something. 51

1 August 2016

[137] On 1 August 2016, Mr Muller undertook an on-site drug and alcohol test. Ms Heritier, Supervisor and Paramedic employed by Verifact Health and Response, was the tester on that occasion.

[138] Mr Muller provided a urine sample. It was 32°C. Ms Heritier informed Mr Muller that the sample had to be at least 33°C, and because it was not the sample had to be sent off for further testing or analysis.

[139] Section 6 of the Drug and Alcohol Procedure states that the correct temperature range for a urine sample is “between 32°C and 38°C”. Similarly, section 6.3.1 describes the “required range” for a urine sample as “32 – 38°C” and the Drug and Alcohol Testing Form signed by Mr Muller refers to an “Acceptable Range 32 – 38°C”.

[140] Ms Heritier says that the temperature range in Mt Arthur’s policies, procedures and forms (32°C – 38°C) does not reflect the limits set by Australian Standard 4308:2008, which states (at section 2.3.3(f)(ii)) that the “acceptance criterion shall be a temperature between 33°C and 38°C”. Ms Heritier’s view is that the applicable Australian Standard should apply in the event of any inconsistency between it and Mt Arthur’s policies, procedures or forms. In that regard, Ms Heritier relies on the various references to the Australian Standard in Mt Arthur’s Drug and Alcohol Procedure and the Testing Policy.

[141] I accept the evidence given by Ms Heritier to the effect that her practice is, and has always been, to send a urine sample off for further testing or analysis if it is 32°C. 52 Accordingly, I am satisfied that Ms Heritier’s conduct in requiring Mr Muller’s urine sample provided by him on 1 August 2016 to be sent off for further testing or analysis was not any attempt by Ms Heritier or Mt Arthur to single Mr Muller out or treat him differently from the way in which other employees, contractors and visitors at the mine are treated.

[142] I also accept Ms Heritier’s evidence that she examined the urine sample provided by Mr Muller on 1 August 2016 and determined that it was of a blue colour, rather than green, which is the colour required to produce an accurate temperature reading. On that basis, Ms Heritier concluded that the urine sample produced by Mr Muller on 1 August 2016 was slightly less than 32°C and it had to be sent for further testing or analysis. 53

[143] For the reasons set out above, I am satisfied that the drug and alcohol testing required of Mr Muller by Mt Arthur on 1 August 2016 was not unreasonable or other than in accordance with Mt Arthur’s policies and procedures. Those policies and procedures should obviously be updated to ensure the relevant temperature range for a urine sample is consistent with the Australian Standard to which they refer.

Conclusion

[144] For the reasons set out above, my answers to the four questions I have been asked to arbitrate are as follows:

[145] In light of my answers to these questions, I decline to grant any of the relief sought by Mr Muller and dismiss his application under s.739 of the Act.


COMMISSIONER

Appearances:

Mr K Endacott, Industrial Research Officer from the CFMEU, on behalf of the applicant;

Ms S Millen, solicitor from Herbert Smith Freehills, on behalf of the respondent.

Hearing details:

2016.

Newcastle:

December, 20, 21, 22.

2017.

Newcastle:

January, 19.

 1   PN1494

 2   PN756

 3   PN525

 4   PN751

 5   PN763-774

 6   PN742

 7   PN525 & PN782

 8   PN1506

 9   Ex A4 at [12]

 10   PN895

 11   PN1807-1812

 12   PN1722

 13   PN945-950

 14   PN935-8

 15   PN992

 16   PN2119-2120

 17   Cubillo v Commonwealth (2000) 103 FCR 1 at [360]

 18   Ex A6 at [13]

 19   PN3129 & 3148-9

 20   PN3156

 21   Ex A6 at [92]

 22   Ex A6 at [92]

 23   See paragraph [81] below.

 24   PN1586-7

 25   PN1619-1620

 26   PN1776-7

 27   PN1839, 1842, 1885, 1891-7

 28   PN1864-5

 29   PN1901-2

 30   PN1638-40

 31   PN1667

 32   PN1696-1698

 33   PN1903-4 & PN2027

 34   PN1740

 35   See clause 6.2 of the Testing Policy, which requires an employee to "take the selected empty testing cup into the toilet area for the self – collection of a urine sample”, at which time the employee must "leave the door ajar to allow the tester to hear if any packaging is being opened all water used”.

 36   Australian Federation Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188; Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU [2015] FWCFB 1889 at [26]-[27]

 37   CFMEU v HWE Mining [2011] FWA 8288 at [12]

 38   PN3193

 39   Australian Federation Union of Locomotive Enginemen v State Rail Authority of New South Wales (XPT Case) (1984) 295 CAR 188; Lend Lease Project Management and Construction (Australia) Pty Limited v CFMEU [2015] FWCFB 1889 at [26]-[27]

 40   PN2264

 41   Corrective Services NSW and Fraser [2015] NSWIRComm 1 at [187]-[188]

 42   See also PN2332

 43   PN2332

 44   See, for example, PN2285 and the witness statement of Mr Boshoff (Ex R2 at [7]-[9], [13]-[16], [35], & [39]-[43]

 45   Exhibit A4 at [43]-[45]

 46   PN1105

 47   PN3204 & 3215

 48   Ex A12

 49   Section 5

 50   Section 6

 51   Jones v Dunkel (1959) 101 CLR 298 at 321; Cubillo v Commonwealth (2000) 103 FCR 1 at [355]

 52   PN2906-7

 53   PN2985-88

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