| [2017] FWC 73 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Michael Albert
v
Alice Springs Town Council
(U2016/10304)
COMMISSIONER WILSON |
MELBOURNE, 10 JANUARY 2017 |
Application for relief from unfair dismissal.
[1] Michael Albert was employed by the Alice Springs Town Council from 16 September 2013 until his dismissal, which took effect on 27 July 2016. He was initially employed in Litter Collection duties but then became a Concrete Finisher. Following a short investigation in July 2016, Mr Albert was dismissed by the Town Council for reasons that included him having tested positive for drugs in his system and for having contravened an obligation not to be under the influence of non-prescription drugs or substances.
[2] Section 396 of the Fair Work Act 2009 (the Act) requires the determination of four initial matters before consideration of the merits of the application. Neither party put forward that any of these initial matters required such consideration. In relation to the elements within s.396, I find that Mr Albert’s application was lodged with the Fair Work Commission within the 21 day period for making such applications; that at the time he was dismissed he was a person protected from unfair dismissal; and that questions of consistency with the Small Business Fair Dismissal Code or genuine redundancy do not arise.
[3] As a Concrete Finisher, Mr Albert’s work with the Alice Springs Town Council required him to travel with another employee in a Council truck to perform their work. On Wednesday, 20 July 2016 he started work at 7 AM and was scheduled to work with his brother-in-law, Owen Meurs. The two men loaded the truck and left the depot, with Mr Albert driving. Shortly after leaving the depot, at about 7:15 AM, the Council truck was involved in collision with another vehicle. The evidence before the Commission indicates that the Council vehicle, being a “rigid truck under 4.5 G.V.M.”, was impacted by a sedan that disobeyed a give way/stop sign. The Northern Territory Police Crash Report that was attached to Mr Albert’s witness statement records the following about the circumstances of the collision;
“Location: Intersection Stuart Hwy & Ilparpa Road
Vehicle 1: White Mitsubishi Magna NT Reg [redacted by FWC]
Vehicle 2: White Hino LR Tray truck NT Reg [redacted by FWC]
Driver 1: Unknown [redacted in original]
Driver 2: Michael ALBERT DOB [redacted by FWC]
Attend location and spoke to D2 who stated that he was driving along the Stuart Hwy heading south, at about 7:15am and when he got near the intersection of Ilparpa Rd V1 was traveling east failed to give way at the intersection colliding with the front of V2. V1 continued to drive into Old timers camp and abandoned the car on the edge of the Todd river and decamped on foot. The owner of V1 [redacted by FWC] [redacted in original] The passenger of V2 Owen MEURS was conveyed to ASH for checks on an injuries (sic) to his back in the accident. V2 suffered Minor damage and V1 suffered extensive damage (write off). Police conducted extensive patrols along the river looking for any injured persons or POI.” 1
[4] The same report records that Mr Albert was not subjected by the police to a roadside saliva drug test but that he was tested for the presence of alcohol with the finding that he “tested negative”. No blood sample was taken by the police according to the report.
[5] A two-way radio call was made by Mr Albert to the Council depot and he reported the fact that he and Mr Meurs had been involved in a motor vehicle accident. In response to that notification Justin Rutherford, the Supervisor of Municipal Services with the Town Council, attended the accident scene and found that both the police and an ambulance were in attendance as well.
[6] All parties agree that Mr Rutherford then took Mr Albert to a pathology service named Western Pathology for drug testing, before taking Mr Albert back to the Town Council’s premises. Mr Rutherford had been directed to take Mr Albert for drug testing by Scott Allen, the Town Council’s Manager Works. The drug test that was administered to Mr Albert was in the form of a urine sample drug and alcohol test, which returned a positive result. Mr Albert was notified by Mr Allen of that fact on the same day as providing the sample, with Mr Allen providing the following evidence through his witness statement, noting that THC is a cannabis constituent;
“3. The initial test result returned a positive sample for THC in Michael’s system.
4. Upon Michael's return to the Depot I called him into my office and with Justin present. I informed Michael that the test had returned a positive result for THC and that he would immediately be suspended with pay from duties due to Council having a duty of care for Michael, his work colleagues and the general public.
5. I explained that the positive nature of his initial sample did not mean that he would automatically lose his job. The testing facility would now forward the sample to Perth for confirmation. I instructed Justin to drive Michael home immediately and that I would be in contact with Michael once the confirmation test result had been provided to Council.” 2
[7] The evidence of both Mr Albert and Mr Rutherford is that at the same time as Mr Allen informed Mr Albert about the positive test he was also told that he was unable to resume his normal duties because of the duty of care owed by the Town Council to him and other staff members. Mr Rutherford and Mr Allen gave evidence that in the same conversation, on Wednesday, 20 July 2016 that Mr Albert was informed that the urine sample would be sent for further analysis.
[8] Mr Albert and Mr Rutherford also agree that Mr Allen told Mr Albert words to the effect that the initial positive result did not mean that he would automatically lose his job, although the Respondent’s witnesses both connect that statement with the qualifier that a decision about his employment future could only be made after the result of the confirmation test. 3
[9] Later on 20 July 2016, and after Mr Albert had gone home, Mr Allen telephoned him and asked him to come in for a discussion the next day in order “to explain the reasons as to why THC was present in his system”. 4 That discussion was arranged for Thursday, 21 July 2016 at 2 PM.
[10] Mr Allen’s evidence includes that reference to the need for there to be a confirmation test was also mentioned in the meeting with Mr Albert on Thursday, 21 July 2016, a meeting which included Tony Jennison as well, the Town Council’s Manager Human Resources.
[11] Mr Jennison gave evidence that in the meeting held on 21 July 2016 Mr Albert gave an explanation for the presence of THC in his system and was told that a confirmatory drugs tests would need to be conducted;
“5. During this meeting Scott and I asked Michael about the accident and the reason for his non-negative test result. Michael explained that he had smoked marijuana the previous Sunday night with friends and that he thought that it would have been out of his system within 6 hours. Michael also asked if Council had a drugs rehabilitation program that he could attend.
6. It was pointed out to Michael that a confirmatory drugs test would need to be conducted and that if this was also a non-negative a further "Serious Misconduct" meeting would need to be held. Patrick had no concerns with Council's investigative process.” 5
[12] Mr Albert disputes in his oral evidence that he was ever told that his urine sample would be sent for a second or confirmatory test following the initial non-negative result.
[13] The meeting referred to took place with Mr Albert attending as well as Mr Allen and Mr Jennison. The first part of the conversation included Mr Jennison asking whether Mr Albert had a support person. After a short period Mr Allen obtained the assistance of Patrick Ortega, a United Voice delegate working in the Council. Mr Albert’s witness statement about the discussion includes the following;
“17. During the meeting with Mr Jennison, Mr Allen, Mr Ortega and I in attendance, I was asked about why my drug test reading may have come back positive. I told them I had a smoke on Sunday before the accident on Wednesday.
18. Mr Jennison said that he was "willing to tell me 2 things. He said they had spoken to the police and they knew that the accident wasn't my fault; and that the drug test has come back low".
19. I asked Mr Allen whether they had checked the GPS tracker/ toggle records on the truck to see whether I was speeding. They said they had, and said that I had not been speeding.
20. I was then told by Mr Allen not to do anything and that I was suspended on pay until I heard further from them.” 6
[14] The witness statements of both Mr Jennison and Mr Allen record that in the course of the meeting on Thursday, 21 July 2016 Mr Albert asked them if Council had a drugs rehabilitation program that he could attend. 7 While Mr Albert does not dispute that he asked that question at some point, he disputes that it was asked in the meeting on 21 July, and instead puts forward that the question was asked in a later meeting on Tuesday, 26 July 2016, and that it came in the context of him being informed he was to be dismissed, with him then putting forward that it was his understanding that rehabilitation programs were always available to employees if required.
[15] In any event, Mr Albert’s urine sample was sent for further testing by Western Pathology which provided its findings to the Alice Springs Town Council in a report dated 22 July 2016. That report concluded the presence of cannabis metabolite within the sample tested, to the level of 1100 �g/L against a “cut off” of 15 �g/L.
[16] The Town Council received Western Pathology’s report when Mr Jennison accessed the pathology company’s reporting website. Mr Jennison’s evidence on the subject is limited to the fact that he accessed the relevant website, established that the test had indicated 1100 �g/L for cannabis and that he then spoke to the Council’s CEO, Rex Mooney, on the subject. 8 The results of the further analysis were communicated to Mr Allen, whose evidence on the subject records that he was informed by Mr Jennison of the following matters;
“16. I contacted Michael at approximately 2.00pm on 22 July 2016 and notified him that no result had been received from Western Pathology at that stage and apologised that the process would go over the weekend.
17. Some time after that phone call, Human Resources informed me that Michael Albert's confirmation drug test results from Western Diagnostics in Perth were received and indicated a count of 1100 ug/l for cannabis.
18. On Monday, 25 July 2016, I was informed by Tony Jennison that the decision had been taken to terminate Michael's employment at Council.
19. I contacted Michael at approximately 3.30pm on that day and notified him that the confirmatory test result had been received and he was to attend a meeting on Tuesday 26 July 2016 @ 7.45am.” 9
[17] Mr Albert’s evidence about the circumstances of the meeting on Tuesday, 26 July 2016 includes the following;
“21. On 25 July 2016, at around 4.30pm, I received a call from Mr Allen telling me that I had to attend a meeting the next day at 7.45am. I was not told what the meeting was about.
22. Mr Orgeta (sic) attended the meeting with me. As soon as we sat down, Mr Allen handed me the termination letter which stated that I was instantly dismissed on the grounds of serious misconduct pursuant to clause C3 of the ASTC EA 2015 … Mr Jettison (sic) also told me then for the first time that my reading was high and showed me the pathology report. I did not understand what it meant. He did not provide me a copy of the report.
23. I asked Mr Jettison whether there was any potential for me to attend a rehabilitation program rather than be dismissed. We had been told previously that rehabilitation programs were always available if required. Mr Allen said: "if I had come to them first, that would have been possible". The meeting lasted for around no longer than 10 minutes” 10
[18] Mr Jennison’s evidence includes that at the meeting on 26 July 2016 Mr Albert was informed he was to be dismissed and that “Michael was subsequently presented with a Termination of Employment letter, Michael asked if Council would reconsider its decision to terminate, but we informed him that Council's decision was final.” 11 Mr Allen’s evidence on the subject is consistent with Mr Jennison’s putting forward that Mr Albert had also asked about “the appeals process” and that Mr Jennison informed him he would get back to Mr Albert and Mr Ortega.12
[19] The letter of termination provided to Mr Albert is dated 26 July 2016 and is signed by the Town Council’s Chief Executive Officer, Rex Mooney, and communicates to Mr Albert these reasons for his dismissal;
“Dear Mr. Albert
TERMINATION OF EMPLOYMENT
During working hours on Wednesday 20 July 2016, after being involved in a motor vehicle accident, you were directed to undertake a drug test at Western Diagnostic Pathology Alice Springs to determine whether you were at that time under the influence of a non-prescriptive drug or substance. On Friday 22 July, 2016 Council subsequently received confirmation that you tested positive for cannabis metabolite.
This is in direct contravention of Section 5 “Serious Misconduct” of Council's Enterprise Agreement which states that serious misconduct may result in the instant termination of employment when proven to be one or more of the actions to include:
consumption of, or being under the influence of a non-prescriptive drug, substance or alcohol and / or being intoxicated at work
Accordingly, I have to advise that your employment with Council has been terminated as of 27 July, 2016. Your entitlements will be paid within three working days of today's date.” 13
[20] Mr Albert also gave evidence that when he undertook the urine test he was never provided with paperwork by Western Pathology and that when he asked for a copy of his results after being terminated they refused to provide him with a copy. Mr Albert says that the first time he saw the results was when the Employer Response Form in these proceedings was filed on 25 August 2016.
[21] Mr Albert does not dispute that the test result provided to the Town Council by Western Pathology relates to the sample given by him or that the result was wrong.
[22] The legislative provisions which are relevant to this matter are set out in s.387 of the Act, which is as follows;
387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
[23] Determination of whether Mr Albert’s dismissal was harsh, unjust or unreasonable requires each of the matters specified in s.387 to be taken into account.
[24] The Full Bench has summarised the approach that should be taken by the Commission to the criteria within s.387 in the following way; 14
“[28] The following propositions concerning consideration as to whether there is a valid reason for dismissal for the purpose of s.387 are well established:
[25] I will deal with each of the criteria within s.387 in turn.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees)
[26] Having been dismissed for misconduct, the Commission is first required to find whether, on the balance of probabilities, the alleged misconduct actually occurred. 20 In doing so, the Commission will take into account the need to be properly satisfied of the proofs of the conduct; without applying a standard of proof higher than the balance of probabilities.21 The Commission will also take into account the need for honesty on the part of the applicant during the course of an investigation.22
[27] In some respects, the factual base of this matter is not especially controversial, with the following findings being available on the evidence of the parties about Mr Albert’s conduct;
[28] Mr Albert acknowledges having attended an information session on the Town Council’s alcohol and drugs procedural statement and directives in 2015 but disputes whether in the course of that session he was told that a breach could lead to termination.
[29] Mr Rutherford’s evidence is that, after the motor vehicle accident, he was directed by Mr Allen to send Mr Albert for urine sample drug and alcohol testing. The evidence of both is that such is consistent with the Town Council’s application of its PSD, being a formal Procedural Statement and Directives on Alcohol and Drugs that was adopted by the Council in late 2015. In particular the Respondent’s witnesses put forward that testing after a motor vehicle accident would be a routine to be followed by the Town Council. Rather than specifying that an employee involved in a motor vehicle accident is to be directed to be tested for alcohol or drug use, the PSD specifies that an employee will be immediately directed for testing “where Council has reasonable suspicion that an employee’s work performance is affected by drug use”. 23 In this regard, the Town Council argues that it would in fact have a “reasonable suspicion” when an employee has been involved in something such as a motor vehicle accident. The evidence of each of the Town Council’s witnesses is that they understood the policy to require drug and alcohol testing in cases where an employee was involved in a reportable accident (that is one which is required to be reported to the police) or where the incident involves more than $1000 in damage to property.
[30] The Town Council’s evidence includes that the vehicle Mr Albert was driving cost $16,994 to repair. 24
[31] The police did not require Mr Albert to submit to drug testing, but did require a breath analysis from him for the purposes of alcohol testing.
[32] There is no evidence before the Commission that would lead to a finding that Mr Albert had not discharged his obligation to be truthful and honest during the course of the Town Council’s investigation about his conduct.
[33] While there appears to be nothing about the motor vehicle accident, as it was reported to the Town Council, that would cause it to have a reasonable suspicion that Mr Albert’s work performance or driving abilities had been affected by drug use, I accept that the Town Council was acting according to how it understood its policy to operate when it directed Mr Albert to attend for drug testing.
[34] Mr Albert puts forward both that he was not provided with documentation by Western Pathology when he provided a urine sample for them and neither was he provided with the results of the test that were ultimately relied upon by the Town Council to dismiss him. He also submits that he was not informed that the sample would be sent for further analysis after its initial negative result. After considering the evidence of both Mr Jennison and Mr Allen on the subject and comparing it with the evidence given by Mr Albert, I am satisfied that Mr Albert was informed there would be further analysis.
[35] It is notable that Mr Albert’s witness statement does not refer to him not being told about the need for confirmatory testing, despite him realising by the time of preparing the statement that such testing had been carried out. Mr Allen’s evidence refers to Mr Albert having been told on two occasions there would be further testing and, importantly, in a separate phone conversation on Friday, 22 July 2016 to him apologising for the confirmatory test results having not yet been received and, at the time of the conversation, seeming like Mr Albert would need to wait the weekend for the process to be concluded. 25 That evidence of Mr Allen’s was not challenged by the Applicant. In all, I consider it to be implausible that Mr Albert did not know that his urine sample would be sent for further confirmatory testing.
[36] The Town Council makes much of the fact that the second analysis of the urine sample returned the result it did, submitting;
“23. The Applicant's positive analysis for cannabis metabolite returned a reading of 1100 ug/L while the cutoff point is 15 ug/L, as indicated in the pathology report, … This is a count 73 times higher than the cutoff point.
24. The Respondent has a drug and alcohol policy that demands a zero count for a drug analysis test.” 26
[37] The interpretation the Town Council puts on the second analysis is that Mr Albert’s cannabis metabolite reading was very high, and unacceptably so. The explanation which Mr Albert gave to Mr Jennison and Mr Allen was that he had last used cannabis on the night of Sunday, 17 July 2016 and that he thought it would be out of his system within about six hours. 27
[38] The Town Council argues that it has a drug and alcohol policy that demands a zero count for a drug analysis test. 28 That argument relies upon the contents of the Town Council’s Procedural Statement and Directives: Alcohol and Drugs (PSD) which provides for the following within a definitions clause;
“Maximum permissible alcohol level
Where an employee is on duty or on call, the maximum permissible alcohol level is zero unless the employee has otherwise obtained the consent of the CEO.
Where the employee, who is not on duty but uses a personal use vehicle (as defined in the Motor Vehicle Usage and Maintenance PSD), the maximum permissible alcohol level is 0.05.
To avoid doubt, where the employee, who is not on duty or on call, uses a home garaged vehicle (as defined in the Motor Vehicle Usage and Maintenance PSD), the maximum permissible alcohol level is zero.
Prohibited drug
Any drug classified as a dangerous drug under the Misuse of Drugs Act (NT)
As per the following procedural statements” 29
[39] The same policy makes the following provision in relation to the consequences of working with alcohol or drugs within one’s system;
“4.4.4 Consequences of analysis
Where alcohol and/or drugs analysis indicates that:
the employee may be directed to return to duties.
Where the alcohol or drug analysis indicates that the maximum permissible alcohol level has been exceeded or indicates the presence of a prohibited drug, the employee will immediately be suspended from duties and may face further disciplinary action including the possibility of termination of employment or contract.” 30
[40] While Mr Albert’s evidence includes that he attended an information session about the introduction of the PSD in 2015, he disputes that it amounted to him being told that a breach of the PSD could lead to termination. 31 For its part, the Town Council is dismissive of this argument, putting forward that “Mr Albert knew full well that the policy existed and wilfully chose not to abide by it”.32 Mr Rutherford’s evidence on the subject of the information session, which was characterised by the Town Council as training, was that there was a robust discussion in the room about the PSD and that everyone was involved.
[41] The Town Council’s argument, succinctly put, is that an employee who is drug tested and returns an analysis showing “the presence of a prohibited drug” within their system faces suspension from duty and further disciplinary action, which may include dismissal.
[42] As found above, at the time of the motor vehicle accident, Mr Albert had cannabis metabolites within his system, with his explanation to the Town Council’s investigation being that the non-negative reading came about because of him having used cannabis on the Sunday night, more than two full days prior to the motor vehicle accident, which occurred on Wednesday, 20 July 2016, and that he thought the cannabis would be out of his system within 6 hours. 33 He gave that explanation to Mr Allen and Mr Jennison in the meeting held on Thursday, 21 July 2016. At that time the only information known to the Town Council about his drug use was that the initial testing had returned a non-negative result, and that a confirmatory test was being undertaken.
[43] After receiving that explanation, Mr Jennison accessed the confirmation test results on Friday, 22 July 2016 and discussed them with his Chief Executive Officer, Mr Mooney. Between them they decided to dismiss Mr Albert, and Mr Jennison informed Mr Albert of that decision in the meeting held on Tuesday, 26 July 2016. Mr Allen’s evidence is that Mr Jennison informed him of the decision to dismiss Mr Albert the day before, on Monday, 25 July 2016. 34
[44] As set out above, the Full Bench has succinctly summarised the grounds for establishing when an employer has a valid reason for dismissal. In this case, the enquiry requires a focus on whether the conduct complained of by the Town Council occurred and justified termination, with the source of that proposition stemming from the judgment of the Full Federal Court in Edwards v Giudice, which matter concerned the application of earlier legislation dealing with unfair dismissal; 35
“4. In the present case the Full Bench concluded that Commissioner Tolley had failed to determine whether Ms Edwards was guilty of misconduct in the way alleged by Telstra Corporation Ltd and that the Commissioner should have done so as part of ascertaining whether her termination had been harsh, unjust or unreasonable. The approach of the Full Bench was, in my opinion, unexceptionable. When the reason for a termination is based on the misconduct of the employee, the Commission must, if it is an issue in proceedings challenging the termination, determine whether the conduct occurred. The obligation to make such a determination flows from s 170cG(3)(a). That is, the Commission must determine whether the alleged conduct took place and what it involved. Section 170CG(3) provides:
"In determining, for the purposes of the arbitration, whether a termination was harsh, unjust or unreasonable, the Commission must have regard to:
(a) whether there was a valid reason for the termination related to the capacity or conduct of the employee or to the operational requirements of the employer's undertaking, establishment or service; and
(b) whether the employee was notified of that reason; and
(c) whether the employee was given an opportunity to respond to any reason related to the capacity or conduct of the employee; and
(d) if the termination related to unsatisfactory performance by the employee - whether the employee had been warned about that unsatisfactory performance before the termination; and
(e) any other matters that the Commission considers relevant."
5 It is clear from both the language and structure of s 170CG(3) and the statutory context in which the subsection appears that the section requires the Commission to consider each of the matters referred to in pars (a) to (e), though the matter referred to in par (d) does not arise in all circumstances. Not only must the matters be considered but the use of the words "have regard to" signify that each must be treated as a matter of significance in the decision making process: see Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187; 45 ALD 136; Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153 and Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121.
6 Paragraph (a) speaks of "whether there was a valid reason ... related to the ... conduct of the employee". The paragraph requires consideration of the validity of the reason when the reason is, relevantly, based on conduct of the employee. It is, in my opinion, difficult to avoid the conclusion that the Commission is obliged in such circumstances to investigate in the inquiry process contemplated by s 170CG(3) whether the conduct relied on occurred as a necessary step in the process of determining whether a valid reason existed.
7 The reason would be valid because the conduct occurred and justified termination. The reason might not be valid because the conduct did not occur or it did occur but did not justify termination. An employee may concede in an arbitration that the conduct took place because, for example, it involved a trivial misdemeanour. In those circumstances the employee might elect to contest the termination in the arbitration on the basis that the conduct took place but the conduct did not provide a valid reason and perhaps also by relying on the other grounds in pars (b) to (e). …”
[45] The conduct of Mr Albert relied upon by the Town Council, as set out in its letter of termination, is that at the time of the motor vehicle accident he was under the influence of a non-prescriptive drug or substance.
[46] The evidence available to the Town Council when it took its decision to dismiss establishes that allegation. When tested for the presence of drugs in his system immediately after the motor vehicle accident on 20 July 2016, Mr Albert’s urine analysis test established that his system contained cannabis metabolites at the level of 1100 �g/L. At the time it decided to dismiss Mr Albert, the Town Council had before it the following information;
[47] Mr Jennison’s evidence includes that he made some basic interpretive enquiries about the result and satisfied himself that the result was unacceptably high. While he was imprecise in his evidence about how or of whom he made those enquiries, his evidence is capable of acceptance. Those enquiries reasonably led him to form the view that the result was an unacceptably high one.
[48] The question of the quantum of the result goes directly to the question of whether Mr Albert’s conduct of being at work while under the influence of a non-prescriptive drug or substance justifies termination. In this regard, the Town Council submit that Mr Albert’s confirmatory testing shows a result “73 times higher than the cutoff point” and would have me draw the conclusion that this was an unacceptably high reading.
[49] The material before me about the interpretation of the results is from three sources. Firstly, Mr Jennison gave evidence that he had satisfied himself that the result was to be interpreted as a high reading. Secondly, the Town Council submitted that the result deviated substantially from the Town Council’s policy “that demands a zero count for a drug analysis test”. 36 Thirdly, Mr Albert submitted that “not all test results are equal”, as well as putting forward that urinary drug tests indicate the presence of drugs and not impairment; are subject to variable results; and are affected by externalities such as a person’s hydration, drug use, body mass index, kidney function, etc.37
[50] While it is well settled that a valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced, consideration of the question requires a consideration of the context of the workplace, with the following being held in relation to predecessor legislation;
“Section 170DE(1) refers to ‘‘a valid reason, or valid reasons’’, but the Act does not give a meaning to those phrases or the adjective ‘‘valid’’. A reference to dictionaries shows that the word ‘‘valid’’ has a number of different meanings depending on the context in which it is used. In the Shorter Oxford Dictionary, the relevant meaning given is: “2. Of an argument, assertion, objection, etc; well founded and applicable, sound, defensible: Effective, having some force, pertinency, or value.” In the Macquarie Dictionary the relevant meaning is ‘‘sound, just, or well founded; a valid reason”.
In its context in s 170DE(1), the adjective ‘‘valid’’ should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s 170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘‘be applied in a practical, commonsense way to ensure that” the employer and employee are each treated fairly, see what was said by Wilcox CJ in Gibson v Bosmac Pty Ltd (1995) 60 IR 1, when considering the construction and application of s 170DC.
The requirements of s 170DE(1) should not impose a severe barrier to the right of an employer to dismiss an employee. …” 38
[51] The context of the workplace includes one in which employees, such as Mr Albert, are required to operate large items of plant and equipment. The Town Council is also a regional employer which desires to be an exemplar to its community, which itself suffers from the ill-effects of drug and alcohol abuse on a daily basis. It submitted that the Commission should have regard to the following matters of context about the operational requirements of its business;
“31. Furthermore, the Applicant worked in a section of the Alice Springs Town Council which is highly visible to the public. Due to the nature of his position, most of his work is done within the public eye and a positive result of 73 times more than the cutoff point is not only a danger to himself or other workers, but it does not reflect well on the reputation of his employer.
32. The Alice Springs Town Council is a local government authority and its ongoing and continued management of civil services in a township of about 28,000 residents is reliant on public trust and goodwill to ensure that infrastructure projects, involving a lot of concrete works, are finalised as these often cause disruptions to traffic flow and peaceful surroundings. The Alice Springs Town Council cannot afford to be impacted on its reputation by the perception of the public that their visible and public employees are users of prohibited drugs and there is no consequence to it.
33. The fact that the positive result of the Applicant's confirmatory drug test analysis is so in excess of the cutoff point meant that the Employer did not have any other option but to regard the behaviour of the Applicant as flouting the essential conditions of the contract of employment.
34. The Applicant is also in the position of working with very heavy machinery and as such performs safety-critical work. On the day of the accident, the Applicant was driving a concrete truck from the Hino 500 series. Even though the Applicant's impairment was not in question on the day, the context of his safety-critical work is afforded more weight within the application of the policy and breaching the zero-tolerance policy is a valid reason for dismissal.” 39 (references omitted)
[52] These matters of context for its operational requirements lead me to find that the Alice Springs Town Council held a valid reason for Mr Albert’s dismissal relating to his conduct.
[53] A chance, and apparently blameless, motor vehicle accident exposed conduct by Mr Albert that needed to be dealt with by the Town Council. Its assessment that Mr Albert’s conduct was unacceptable was made after Mr Jennison made enquiries about the interpretation of the result. The fact that the reading was as high as it was led to its decision to dismiss, rather than to choose an alternative course of action.
[54] In forming this view, I have taken into account that the motor vehicle accident was attended by both the police and an ambulance crew and that while Mr Albert was tested at the accident scene for alcohol, neither had cause to require him to be tested for the presence of drugs. The likelihood that Mr Albert did not appear impaired to the police and ambulance crew does not change my finding that the Town Council held a valid reason for his dismissal.
(b) whether the person was notified of that reason
[55] The evidence shows that Mr Albert was notified of the Town Council’s reasons for dismissal, with him being provided with a letter dated 26 July 2016, which recorded that at the time of the motor vehicle accident on 20 July 2016 he was under the influence of a non-prescriptive drug or substance.
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person
[56] For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal. 40 In Wadey v YMCA Canberra41 Moore J stated the following principle about the right of an employee to appropriately defend allegations made by the employer;
“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend. 42
[57] I am not persuaded that Mr Albert was provided with an opportunity to respond to the Town Council’s reasons for his dismissal. After considering the evidence before the Commission, both of Mr Albert and the Town Council’s managers, the finding may be made that Mr Albert was not provided with a copy of the testing of his urine sample and was instead verbally informed of the first analysis and then shown but not given a copy of the pathology report, and then only at the termination meeting. 43 Instead of being given a copy of the reports he was informed that the first analysis was positive to drugs and that the further analysis was high without him understanding what it meant.44 Further, it was not put to Mr Albert that the result of the further testing was unacceptably high and he was not asked for an explanation. Mr Albert was also not informed that the Town Council proposed to dismiss him nor asked for a response.
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal
[58] There is no evidence that Mr Albert was refused the opportunity to have a support person to assist at discussions about the dismissal and, in fact, a United Voice delegate attended with him and spoke on his behalf.
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal
[59] The dismissal does not relate to Mr Albert’s unsatisfactory work performance.
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal
[60] There is no evidence that the size of the Town Council’s enterprise impacted upon its decision to terminate Mr Albert’s employment, and the way in which it was implemented.
(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
[61] There is no evidence that the Town Council lacked dedicated human resource management specialists or expertise or that such impacted on its decision making.
(h) any other matters that the FWC considers relevant
[62] Mr Albert puts forward as a potential “other relevant matter” the fact that he was approached, after dismissal, for possible re-employment by the Town Council. The circumstances include that on 31 August 2016, Mr Albert’s union representative, Dianne Yali, from United Voice, was contacted by the Town Council, and the following exchange ensued;
“4. On 30 August and 31 August 2016, Ms Skye Price (Director Corporate and Community Services) called me.
5. On 31 August 2016, I had the opportunity to speak to Ms Price. Ms Price advised me that the Council would like Mr Albert to apply for his role of Concrete Finisher - even though applications had closed on 19 August 2016. I queried Ms Price what she envisaged would happen to this Application if Mr Albert was successful and she advised that she envisaged that the matter would be withdrawn.
6. Ms Price said the Council thought Mr Albert was a very good and competent employee in what he did. She also stated that there had been no performance or any disciplinary issues during Mr Albert's employment. Ms Price then emailed the advertisement and the selection criteria to me which I consequently forwarded to Mr Albert.” 45
[63] Mr Albert then applied for the role on 5 September 2016; was interviewed on 19 September; and was advised he was unsuccessful on 21 September. 46
[64] I do not find that this, or any other matters, are relevant to whether Mr Albert was unfairly dismissed and require being taken into account.
[65] While having found that the Alice Springs Town Council held a valid reason for Mr Albert’s dismissal relating to his conduct, I have also found that he was not accorded with the opportunity to respond to that reason. As a result, the Council made its decision to dismiss Mr Albert without the benefit of an explanation or consideration of any mitigating factors he may have brought forward.
[66] It is not axiomatic that a failure to accord an employee with procedural fairness in the form of an opportunity to respond to an employer’s reason for dismissal will lead to a finding that an employee has been unfairly dismissed.
[67] In Hafer v Ensign Australia, Commissioner Platt found that a failure to give an employee, dismissed for drug use, an opportunity to respond to the reasons for termination would not have had any bearing on the outcome of the disciplinary process. 47 In that case, an employee working on a drilling rig had failed an initial screening test and one of two urine analysis tests that were taken, revealing the presence of methamphetamine, THC and amphetamine. The employee denied having taken drugs and contended that the positive test should not be relied upon. The Commissioner concluded that, given Mr Hafer’s denial of drug use in the hearing, he had no satisfactory explanation for the results of the positive test and that the presence of procedural defects in a termination meeting did not affect the outcome of the termination.48
[68] The Commission has also held, in relation to matters of misconduct generally, that in circumstances in which procedural faults are established that two questions arise for consideration; did the seriousness of the misconduct outweigh any procedural faults and would the procedural faults have affected or altered the ultimate outcome of the dismissal? per Dissanayake v Busways Blacktown Pty Ltd (Dissanayake). 49 The Full Bench confirmed that proposition on appeal, finding that the decision made at first instance by Deputy President Sams in respect of the procedural fairness afforded to the applicant and how his dismissal was affected by the same were open to him.50
[69] In the decision of Dissanayake at first instance, Deputy President Sams contextualised the consideration of procedural fairness by an examination of earlier authority of the High Court and the Australian Industrial Relations Commission. 51 In Byrne & Frew v Australian Airlines Ltd, the High Court considered the import of unfair procedures, finding;
“The distinction between procedure and substance is elusive. This is so even in those fields of private international law, the statute law dealing with limitations of actions and the effect of repeal upon accrued rights, and the Statute of Frauds, where it has an entrenched operation. In our view, it is unhelpful and contrary to the tenor of the Award to introduce it into cl 11(a).
That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable. Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable. But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable. That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.” 52 (references omitted)
[70] In Farquharson v Qantas Airways Ltd the Full Bench held that in circumstances in which a dismissal for misconduct has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the dismissal to justify a conclusion that the dismissal was nevertheless harsh, unjust or unreasonable;
“The appellant complains about the manner in which Qantas conducted the disciplinary process that led to the termination of his employment. A provision in the relevant certified agreement provides that the parties shall abide by the “rules of natural justice” in relation to disciplinary proceedings. The appellant was not permitted legal representation on his internal appeal and a manager involved in the initial disciplinary decision was also involved in the internal appeal decision. The appellant contends that her Honour erred in finding that the appellant was not prejudiced by these matters and in failing to find a breach of the rules of natural justice and thus a breach of the certified agreement. Even if it is assumed that these matters involved a breach of the rules of natural justice and, consequently, that there was a breach of the certified agreement, we are not persuaded that her Honour erred in failing to find that these matters rendered the termination harsh, unjust or unreasonable.
The fact of unfairness in the employer’s decision making process, even if it involves a breach of a term in a certified agreement, is but a factor to be taken to account in determining whether a termination of employment was harsh, unjust or unreasonable. In circumstances where, as here, the merits of a termination of employment based on misconduct have been the subject of a full hearing in the Commission (in which the employer must establish the alleged misconduct on the balance of probabilities) and the dismissal has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the termination justifying a conclusion that the termination was harsh, unjust or unreasonable. This is so because, almost invariably in such circumstances, it may be inferred that the outcome of the disciplinary process would have been the same even if there had been no such defect.” 53 (reference omitted)
[71] In Mr Albert’s case, he openly conceded the use of cannabis, and the only explanation he has given about his use of the drug at any time, including during the hearing, was the one he gave to the Town Council on Thursday, 21 July 2016 – that he had consumed it on the Sunday night prior to the motor vehicle accident on Wednesday, 20 July 2016. He has not deviated from that explanation, even after knowing the pathology result on which the Town Council relied and its view that the result was unacceptably high. As a result, the finding is open to be made that even had the Town Council formally put the result to Mr Albert, along with its belief that it was an unacceptably high reading, and that such should lead to his dismissal, that no explanation that Mr Albert could put would alter the ultimate outcome of the matter.
[72] At the time of the motor vehicle accident Mr Albert was obviously driving a significant sized truck on a public road. That he was not at fault in the accident is not relevant; instead what is relevant is that he was driving while under the influence of a drug. After taking into account all of the material before the Commission, I am satisfied that the Town Council was entitled to consider the circumstances as an extremely serious breach of its requirements.
[73] In Mr Albert’s case, I find that the seriousness of his actions outweigh the procedural faults of the Town Council in its decision to dismiss him, and I find that had the procedural faults been remedied, they would have been unlikely to affect or alter the ultimate outcome of the matter.
[74] As a result, I find that Mr Albert was not unfairly dismissed, and his application is in turn dismissed.
COMMISSIONER
Appearances:
Ms D Yali, United Voice, for the Applicant.
Mr A Riley for the Respondent.
Hearing details:
2016.
Melbourne (by telephone):
12 December.
1 Exhibit A3, Statement of Michael Albert, Attachment A.
2 Exhibit R2, Statement of Scott Allen, [3]-[5].
3 See Exhibit R2 [5] and Exhibit R1, Statement of Justin Rutherford, [9].
4 Exhibit R2 [8]; Exhibit A3 [12].
5 Exhibit R3, Statement of Tony Jennison, [5]-[6].
6 Exhibit A3 [17]-[20]
7 Exhibit R2 [12]; Exhibit R3 [5].
8 Exhibit R3 [7]–[8].
9 Exhibit R2 [16]-[19].
10 Exhibit A3 [21]-[23].
11 Exhibit R3 [9].
12 Exhibit R2 [21].
13 Exhibit A3 Attachment B.
14 Titan Plant Hire Pty Ltd v Shaun Van Malsen [2016] FWCFB 5520.
15 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 at 373.
16 Edwards v Giudice [1999] FCA 1836; (1999) 94 FCR 561 at [6]-[7].
17 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; Annetta v Ansett Australia (2000) 98 IR 233 at [9]-[10].
18 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [32]; He v Lewin [2004] FCAFC 161; (2004) 137 FCR 266 at [15].
19 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [33]-[34]; O'Connell v Wesfarmers Kleenheat Gas Pty Ltd [2015] FWCFB 8205 at [22]-[23].
20 Edwards v Giudice (1999) 94 FCR 561 [6]‒[7].
21 Budd v Dampier Salt Ltd (2007) 166 IR 407, at [15]; with reference to Briginshaw v Briginshaw (1938) 60 CLR 336 and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171.
22 Streeter v Telstra Corp Ltd (2008) 170 IR 1
23 Exhibit R4, Respondent's Outline of Submissions, Attachment I.
24 Ibid Attachment D.
25 Exhibit R2 [16].
26 Exhibit R4 [23]-[24].
27 Exhibit R3 [5]; Exhibit R2 [12].
28 Exhibit R4 [24].
29 Ibid Attachment I.
30 Ibid.
31 Exhibit A3 [30].
32 Exhibit R4 [26].
33 Exhibit R2 [12].
34 Ibid [18].
35 [1999] FCA 1836; (1999) 94 FCR 561 [4]-[7], per Moore J.
36 Exhibit R4 [24].
37 Exhibit A1, Applicant’s Outline of Submissions, [50].
38 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, p.373.
39 Exhibit R4 [31]-[34].
40 Chubb Security Australia Pty Ltd v Thomas (unreported, AIRCFB, McIntyre VP, Marsh SDP, Larkin C, 2 February 2000) Print S2679 [41].
41 [1996] IRCA 568; cited in Dover-Ray v Real Insurance Pty (2010) 204 IR 399 [85].
42 Ibid.
43 Exhibit A3 [22].
44 Ibid.
45 Exhibit A2, Statement of Dianne Yali, [4]-[6].
46 Exhibit A3 [33]–[34].
47 [2016] FWC 990 [62].
48 Ibid [71].
49 [2011] FWA 3549 [98].
50 Siriwardana Dissanayake v Busways Blacktown Pty Ltd [2011] FWAFB 6487 [16].
51 [2011] FWA 3549 [96]–[98].
52 (1995) 185 CLR 410, (1995) 61 IR 32, pp.72 – 73, per McHugh and Gummow JJ.
53 (2006) 155 IR 22 [40]–[41].
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