DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Paul Harding
v
MMG Australia Limited
(U2017/5867)

Application for an unfair dismissal remedy.

Introduction

[1] This is an application for unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). Mr Paul Harding (the Applicant) was dismissed from his employment with MMG Australia Limited (the Respondent). The Applicant was dismissed effective immediately on 26 May 2017 and was paid 5 weeks’ in lieu of notice. 1

[2] The matter was heard before me in Hobart on 12 and 13 September and 21 November 2017. The Applicant was represented by Mr Flanagan of The Australian Workers’ Union and Ms Masters and Mr Collinson were granted permission to appear for the Respondent as I was satisfied that granting permission would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[3] The Applicant gave evidence on his own behalf. Evidence for the Applicant was also provided by the Applicant’s wife Mrs Tanya Harding and Dr Ken Pidd. Dr Pidd was called by the Applicant to give an expert opinion for use as evidence in the proceedings. Dr Pidd is employed by the National Centre for Education and Training on Addiction (NCETA), Flinders University as an Associate Professor and Deputy Director (Research) to conduct and manage research concerning workplace alcohol and drug issues and workforce development. Dr Pidd has been employed at NCETA for 14 years and has 18 years’ experience in the alcohol and drug field. He has been involved in the development of workplace drug and alcohol policies, programs and interventions for workplaces across Australia. Dr Pidd holds a PhD in Organisational Psychology. 2

[4] Evidence for the Respondent was provided by Ms Stacey Dibben, Human Resources Business Partner, Mr Justin De Meillon, Mining Manager, Ms Dallas Eastaughffe, Occupational Health Nurse for the Respondent and Ms Victoria McCombe, an analyst from Racing Analytical Services Ltd (Racing Analytical). Ms McCombe holds a Bachelor of Science (Forensic Science) with Honours, and has worked for nine years in the application of forensic science, seven of which were in the field of toxicology, particularly the analysis of biological fluids for the presence of some drugs, including drugs of abuse and interpreting and reporting the results. 3

Background

[5] The Respondent operates an underground polymetallic base metals mine in Rosebery which is approximately 1500 metres deep and has a production target of 970,000 tonnes mined for 2017. Zinc, lead and copper concentrates and gold ore are produced at Rosebery using mechanised underground mining methods and crushing, grinding and flotation processes. The Respondent employs approximately 140 underground employees and utilises a contracted workforce to complete development of the mine. It is not in contest that underground mining is a hazardous work environment. 4

[6] The Applicant commenced employment with the Respondent at the Rosebery Mine on or around 14 April 2008 in the position of Level 3 Operator and primarily performed the duties of a Truck Driver. On 31 May 2010 the Applicant was promoted to the position of Level 2 Operator and at the time of his dismissal was responsible for performing primarily Charge-Up activities. Charge-Up activities relate to the use of explosives for blasting in the mine. 5

[7] On 5 May 2017 the Applicant completed a random drug test at Rosebery Mine and received a non-negative result and he was immediately suspended from work, on full pay, pending the outcome of confirmatory results. 6 On 9 May 2017 the Respondent received the results of the analysis carried out by Racing Analytical (a National Association of Testing Authorities (NATA) approved laboratory) which confirmed a non-negative result for cannabinoids. Ms Dibben contacted the Applicant by telephone and advised him of the result and requested that he attend a meeting on 11 May 2017. The level detected of cannabinoids at the laboratory was 24μg/L.7 On 11 May 2017 the Applicant met with Ms Dibben and Mr Paul Soden, Superintendent – Mining as part of the Respondent’s investigation.8

[8] On 15 May 2017 the Applicant was required to attend another meeting with Mr Soden and Ms Dibben and the Respondent provided the Applicant with a letter outlining findings of serious misconduct against him following its investigation into the non-negative drug test result. 9 The letter advised the Applicant, among other things, that he had engaged in serious misconduct contrary to a number of the Respondent’s policies and procedures including MMG’s Fitness for Work Procedure, MMG’s Code of Conduct, MMG Drug and Alcohol Procedure, MMG’s Values and STOP + THINK.10

[9] The Applicant provided a written response dated 18 May 2017. On 26 May 2017 the Respondent wrote to the Applicant outlining, among other things, that it had taken into account his responses and considered there were no exceptional circumstances of significantly mitigating factors which would cause the Respondent to depart from the zero tolerance approach to drug and alcohol breaches. Further, that breaches of the MMG Drug and Alcohol and Fitness for Work Procedures present a serious risk to employees and the Respondent cannot tolerate breaches, concluding that the Applicant had without reasonable cause or excuse, engaged in serious breaches and demonstrated a level of complacency towards his fitness for work and personal safety that cannot be tolerated. Accordingly, the Applicant’s employment was terminated effective immediately on 26 May 2017. The Applicant was dismissed and paid 5 weeks’ in lieu of notice. The letter of termination provides that whilst the Respondent considered the Applicant had engaged in conduct which would justify summary dismissal, 5 weeks’ in lieu of notice was paid in order to mitigate the effects of the dismissal. 11

[10] The Applicant submits that the dismissal was unfair. The primary remedy sought by the Applicant is reinstatement, continuity of employment and financial reimbursement for loss of income. 12

[11] The Respondent submits that the dismissal was not unfair and that operating in a safety critical environment it is entitled to enforce its zero tolerance approach to drug breaches and there are no genuinely exceptional or personal circumstances in respect of the Applicant’s positive drug test which would justify a departure from its zero tolerance approach. 13

The law to be applied

[12] Under the Act, a person is protected from unfair dismissal if:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[13] The Applicant was on an annual salary of $126,425 prior to termination. 14 The MMG Rosebery Mine - Underground Agreement 2015 (Agreement) applied to the Respondent and the Applicant prior to his dismissal.15

[14] I find the Applicant is a person protected from unfair dismissal as he had completed the minimum employment period and an enterprise agreement applied to the Applicant.

[15] Unfair dismissal is governed by Part 3-2 of the Act. Section 385 of the Act sets out what constitutes an unfair dismissal:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[16] With regard to s.385 it is not in dispute that the Applicant was dismissed by the Respondent in line with the meaning of dismissal outlined in s.386(a) of the Act.

[17] With regard to s.385(c) of the Act, the Respondent is not a small business. The Small Business Fair Dismissal Code does not apply in this matter.

[18] With regard to s.385(d) there was no suggestion that the Applicant’s dismissal was a case of genuine redundancy. Section 385(d) does not apply in this matter.

[19] The only matter for consideration is whether the dismissal was harsh, unjust or unreasonable (s.385(b) of the Act).

[20] Section 387 of the Act provides 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.”

Evidence

The Applicant’s admitted conduct

[21] The Applicant was absent from work on a combination of annual leave and accumulated days off between 3 April and 3 May 2017. 16 During this period, on 27 April 2017 the Applicant admits to smoking a joint of marijuana whilst socialising with friends.17

[22] The Applicant privately undertook a drug test at home on 3 May 2017 prior to returning to work which returned a negative result. 18 In order to do this, the Applicant purchased a home testing kit from the local chemist. The Applicant submits that the threshold for a non-negative test for THC for this test was 50μg/L which is the same threshold used for the Respondent’s screening process.19 However, the Applicant admitted during cross-examination that there were differences between the tests undertaken by the Respondent and the self-test that he undertook.20

[23] The Applicant returned to work on 4 May 2017. 21

Positive Drug Test Result

[24] Ms Eastaughffe is an Occupational Health Nurse for the Respondent. Her evidence is that random drug testing occurs at MMG Rosebery each week. The site access system generates a list of names and a random number generator provides the names of employees selected for testing, the supervisor of those employees are notified and testing is requested to be completed within one hour by a qualified tester. 22

[25] On 5 May 2017 the day after he returned to work from a period of leave, the Applicant was required to present for a random drug test on site and participated, with Mr Paul Edwards, Emergency Services Officer, in an onsite drug test and returned a non-negative result. The on-site drug test device was a ‘DrugCheck’ immunoassay on-site urine screening device. 23

[26] When an employee is required to participate in a drug test at MMG Rosebery the procedure is as follows:

•  The employee taking the test selects a sealed bag containing the cup (DrugCheck Drug Screen Cup) from the storage cupboard;

•  The employee opens the bag and takes out the cup;

•  The employee unscrews the lid and takes the urine test;

•  The employee screws the lid back on; and

•  The employee places the cup on the bench for review. 24

[27] Ms Eastaughffe gave evidence that the water is turned off in the room, ‘blue loo’ is put in the toilets and there are several things that employees are asked not to do including flushing the toilet. 25 Mr Edwards was not present when the Applicant took the urine test.26

[28] The Applicant undertook the urine test and his evidence was that he was not concerned at this point because of the test he had undertaken the night before. 27 When notified by Mr Edwards that the Applicant returned a non-negative result Ms Eastaughffe reviewed the test, verified the result and took over the process of completing the specimen kit to send to Racing Analytical for analysis.28

[29] In the presence of the Applicant, Ms Eastaughffe took the following steps:

•  completed a chain of custody form titled ‘Drug and Alcohol Site Testing Form’ which was signed by the Applicant;

•  notified the Applicant’s Supervisor of the non-negative drug test result;

•  used a Biological Specimens Kit (Kit) to split the Applicant’s urine specimen using 2 containers from the Kit; closed the containers and sealed them with specimen security seals signed by both the Applicant and Ms Eastaughffe;

•  placed the sealed containers containing the urine specimens into the specimen bag from the Kit and sealed the bag;

•  placed the specimen bag into a specimen box which was sealed with another security seal;

•  placed the box into a locked security bag using an envelope seal for security; and

•  placed the locked security bag into an express post bag. 29

[30] The express post bag containing the locked security bag with the Applicant’s specimens was posted to Racing Analytical for confirmatory analysis. 30 Racing Analytical is a National Association of Testing Authorities (NATA) accredited laboratory which complies with the Australian and New Zealand Standard AS/NZS 4308:2008 (Australian Standard).31 Ms Victoria McCombe, Analyst, at Racing Analytical gave evidence that the above steps taken by Ms Eastaughffe were in accordance with the Australian Standard.32 Ms Eastaughffe’s evidence was that because the Respondent is located in Rosebery the express post bag is taken to the post office by 11:00am to ensure that it is in the mail that same day.33

[31] On 8 May 2017 when the Applicant’s samples were received by Racing Analytical one sample was analysed by Ms McCombe using a solid phase extraction coupled with LCMSMS method of analysis and the other sample was frozen and stored. The analysis by Ms McCombe confirmed the Applicant’s sample was 11-nor-delta-9-tetrahydrocannabinol-9-carboxylic acid confirmed positive by LCMS at 24ug/L using method MS109. 34

Were there flaws in the Respondent’s procedure for collection and analysis of the Applicant’s specimen sample?

[32] The Applicant does not accept that a valid drug testing process was undertaken by the Respondent on 5 May 2017. 35 The Applicant submits the Respondent was not entitled to rely upon the testing result of the Applicant’s urine specimen as the Respondent failed to comply with its own policies, in that it failed to comply with the Australian Standard.36 The Applicant points out than an objective of the Australian Standard is to ensure the detection of drugs in urine meets the expectations for testing of specimens for medico-legal, workplace or court directed purposes.37 It follows from this, the Applicant submits, that the failure of the Respondent to comply with the requirements of the Australian Standard, renders invalid its reliance upon any test result it undertakes for the collection of urine samples, if that result is to be relied upon for medico-legal, workplace or court directed purposes.38

[33] The Respondent submits that there is nothing about the Respondent’s drug testing procedure, both screening on-site or confirmatory analysis that would reasonably give rise to any question about the integrity of the procedure. 39

[34] The Respondent points out that there is no general requirement for the Australian Standard to be complied with in conducting drug testing procedures, however, does concede that compliance with the Australian Standard ensures there is no question about the integrity of the process. 40 Indeed, Dr Pidd confirmed there is no mandatory requirement to comply with the Australian Standard and that they are purely voluntary however compliance with the Australian Standard is the way in which confidence in the testing process can be ensured.41 The Applicant directed my attention to the fact that the Respondent’s own policies indicate that the Australian Standard will be applied.42

[35] The Applicant submits that the evidence establishes that the Respondent, contrary to its own policies and therefore in breach of the contract of employment, has comprehensively failed to comply with the Australian Standard, and as such cannot rely upon the test results of the specimen sample provided by the Applicant on 5 May 2017. 43 The evidence of Dr Pidd is that if the Australian Standard is not followed you cannot have confidence in the interpretation of the sampling that reaches the laboratory.44

[36] Therefore, it is necessary to consider the evidence as to the extent to which the Respondent’s collection procedures comply, or don’t comply as the case may be, with the Australian Standard and in turn whether this gives rise to a concern about the integrity of the collection and testing process that was applied in the case of the Applicant in this matter. Ultimately, the findings on these matters will be relevant to whether or not there was a valid reason for the dismissal, among other things.

Whether the Respondent is a “collection agency” which has attained accreditation for compliance with the Australian Standard

[37] The Applicant submits that the Respondent is a collection facility which is not accredited for compliance with the Australian Standard. Dr Pidd referred to the Urine Drug Confirmation Certificate issued by Racing Analytical which states that the samples were received from a collection facility which is not accredited for compliance with the Australian Standard. He states that the National Association of Testing Authorities, Australia (NATA) offers accreditation to organisations and without such accreditation it cannot be assumed that specimen sample contamination did not occur. 45

[38] The Respondent submits that there is no requirement for it to be an accredited collection facility. 46 The evidence of Ms McCombe was that the Australian Standard does not stipulate that a collection facility must have a NATA accreditation and that Racing Analytical receives samples from other non-accredited collection facilities.47 Ms McCombe did concede on cross-examination that for the purposes of collecting specimens, the Respondent is a collecting agency and that the Respondent does not have that accreditation.48 However, Ms McCombe’s evidence was that the most important thing was for the collector themselves to have the relevant accreditation.49 Ms McCombe was clear in her evidence that she had no concerns about the integrity of the sample received for the Applicant knowing that the Respondent was not an accredited collection facility.50

[39] It is apparent that the Respondent is not accredited for compliance with the Australian Standard. Dr Pidd gave evidence that in these circumstances it cannot be assumed that contamination did not occur. I agree with that statement, however neither can it be assumed that contamination did occur. Ms McCombe was clear in her evidence that she had no concerns about the integrity of the sample despite the fact that the agency was not an accredited collection facility. I am satisfied that the fact that the Respondent is not accredited as a collection agency does not of itself give rise to a concern about the integrity of the sample.

The accreditation of the employees of the Respondent engaged in specimen collection and whether or not they meet the Australian Standard

[40] Clause 1.3.14 of the Australian Standard states that the collector of a urine specimen must be:

“A person who has successfully completed a course of instruction for specimen collection and on-site screening (if applicable), handling, storage and dispatch of specimens and who has received a statement of attainment in accordance with The Australian Quality Training Framework or New Zealand Qualification Authority.”

[41] The Applicant submits that the evidence clearly demonstrates that in order to comply with the Australian Standard collectors are required to hold a Statement of Attainment in accordance with the Australian Quality Training Framework and that the Respondent has failed to comply with the collector requirements of the Australian Standard. 51 The employees of the Respondent involved in the collection of the Applicant’s specimen were Mr Edwards and Ms Eastaughffe.52 Ms Eastaughffe was the collector of the Applicant’s sample53 who was assisted by Mr Edwards in the drug testing process.54

[42] Mr Edwards has a certificate dated 3 May 2007 issued by Point of Care Diagnostics for completing training for the NSCA ‘Alcohol & Drugs in the Workplace’ including in Cupscan, Dipscan, Quickscan and AlcoScreen products. 55 The Applicant submits that Mr Edward’s certificate does not comply with the requirements of the Australian Standard and that he does not meet the definition of a collector for the purpose of the Australian Standard.56

[43] Ms Eastaughffe’s duties as Occupational Health Nurse for the Respondent include injury management, drug testing and medical assessments relating to workers compensation. 57 Ms Eastaughffe has been assessed as having fulfilled the requirements for the course in Workplace Drug Testing by completing units from HLT07 Health Training Package issued by registered training organisation 40379 Medvet Laboratories dated 2 May 2011 (Statement of Attainment).58 The Applicant submits that the modules identified in Ms Eastaughffe’s Statement of Attainment have been superseded and that she does not meet the definition of a collector for the purpose of the Australian Standard.59

[44] In the ‘Collector Declaration’ section of the chain of custody form titled ‘Drug and Alcohol Site Testing Form’ Ms Eastaughffe certified that the sample was collected/tested in accordance with AS/NZS 4308 (urine) (the Australian Standard). The section also requires the collector to tick ‘yes’ or ‘no’ to the statement ‘AQTF Assessed & Certified’ which is not completed. Dr Pidd’s evidence was that if this indicates the collector has not completed AQTF accredited training and received a Statement of Attainment then the initial urine onsite screen does not comply with clause 1.3.14 of the Australian Standard. 60 Ms Eastaughffe gave evidence that this was an oversight on her part, in that she did not tick a box or fill in her collector certificate number.61 Ms Eastaughffe was clear in her evidence that she was a certified collector and has provided a copy of her Statement of Attainment, which includes a certificate number.62 Ms McCombe observed during the hearing that the Statement of Attainment indicates that it is a certificate which complies with the Australian Standards.63

[45] During the hearing Ms Eastaughffe was referred to the Implementation Guide for HLT Health Services Training Package from the Community Services & Health Industry Skills Council and the units of competency, qualifications and skill sets mapping. 64 It was put to Ms Eastaughffe that the qualification she had dated 2011 was out of date or no longer valid. Ms Eastaughffe did not agree that her qualification was out of date. Ms Eastaughffe gave evidence that as far as she is aware she remains certified for the collection of specimens stating that her understanding was when she obtained her certificate as long as there was a continuation of skills, she did not have to complete another course. Further, that she was consistently in contact with Medvet Laboratories and she would have been advised if her qualification was outdated and she had to complete another course.65 Ms Eastaughffe’s evidence is that she has to do 40 drug tests a month for the Respondent.66

[46] The Respondent submits that whilst the Implementation Guide for HLT Health Services Training Package indicates that course content may have changed since 2011, Ms Eastaughffe is in regular contact with Medvet Laboratories and expected they would have notified her if she was required to complete another course or re-train to continue to be a collector, the procedure carried out by her was consistent with the Australian Standard and there is no evidence to suggest the Applicant’s sample was in some way affected by the collection method. 67

[47] Having considered the evidence on the qualifications of Ms Eastaughffe, it is apparent that her qualifications were not up to date as course content had changed since Ms Eastaughffe completed her course and therefore may not comply with the collector requirements of the Australian Standard. However, there is no doubt that Ms Eastaughffe is an experienced collector with a relevant qualification. Moreover, I agree that there is no evidence that the fact Ms Eastaughffe’s qualifications were not up to date in some way affected the collection method. With respect to Mr Edwards, I agree that he does not meet the definition of a collector for the purposes of the Australian Standard. However, again there is clear and uncontradicted evidence as to the procedure that was undertaken to collect this particular sample and there is no reason to suspect that its integrity was compromised as a result of Ms Eastaughffe’s qualifications not being up to date or that Mr Edwards qualifications do not meet the definition of collector for the purposes of the Australian Standard.

On-site quality control

[48] The Applicant submits that clause A3.2 (e) in the Australian Standard contains above and below cut-off quality control requirements for on-site testing and in order to comply with the Australian Standard there is a requirement for a quality control to be conducted in accordance with A3.2(e). 68

[49] Dr Pidd gave evidence that Appendix A of the Australian Standards requires quality control procedures to be undertaken. 69 Dr Pidd’s evidence was that because the ‘Quality Control Conducted’ box on the chain of custody form had not been completed this indicated that quality control was not run or reported as being run when the Applicant’s sample was collected.70

[50] Ms Eastaughffe gave evidence that she did not undertake any sort of quality control steps prior to the commencement of the testing event and that her training indicated there was no need to conduct any form of quality control and that this section of the form did not have to be completed where seals on the integrity kits were intact. 71 Ms Eastaughffe has ticked ‘yes’ on the chain of custody form that the kit integrity seal was intact and the barcode number was written on the form.72

[51] The Respondent submits that any concern about the accuracy of the on-site screening device is remedied by the laboratory analysis of the sample. 73

[52] The Applicant submits that as no quality control was conducted the Respondent has failed to comply with the Australian Standard which is contrary to its own Fitness for Work Procedure and Drug and Alcohol procedure. 74

[53] Having considered this issue, I agree that the fact that there was no quality control conducted means that the Respondent has failed to comply with the Australian Standard and this is contrary to its own Fitness for Work Procedure and Drug and Alcohol Procedure. However, it is not at all apparent that its failure to do so gives rise to any concerns about the integrity of the sample.

Testing device compliance with applicable cut-off levels

[54] The Applicant submits that because the Respondent failed to undertake quality controls the testing device used has triggered at less than the cut-off level required by the Australian Standard. 75 The Drug Check Drug Screen Cup used by the Respondent is compliant with the Australian Standard evidenced by a Certificate of Compliance dated 26 November 2015.76

[55] Clause 4.10 of the Australian Standard identifies the immunoassay screening test cut-off levels for various classes of drugs. The immunoassay screening test cut-off level for cannabis metabolites is 50ug/L.

[56] The Applicant submits that he believes the test he did was defective and he should not have returned a non-negative result because the level of THC in his urine was below 50μg/L (being 24μg/L) and the testing cups used should return a non-negative result if the level is above 50μg/L. 77

[57] The Respondent submits that the Applicant’s submission on this point is misconceived and that on-site testing devices are effectively a ‘screening’ device which triggers the requirement for confirmatory laboratory analysis. 78 Further, that the Applicant’s own evidence indicates the differences between immunoassay on-site screening and confirmatory gas chromatography-mass spectrometry analysis and the potential for ‘false positives’ is why the Australian Standards requires on-site results to be confirmed by more accurate and reliable laboratory testing.79 Ms McCombe explained that laboratory analysis is more accurate and specific and will often produce a result which is lower than the on-site screening cut-off which detects a number of different metabolites and is less specific.80

[58] The Applicant gave evidence that he has received information from other employees which suggest it is not uncommon for the testing cups used by the Respondent to be faulty and referred to information received from another employee where a testing cup was faulty on 26 April 2017 or thereabouts and urine was poured out of the faulty cup into another cup, which produced a negative result. 81 Ms Eastaughffe’s evidence was that the Respondent rarely has faulty cups, but on the rare occasion (once a year) that a faulty cup shows an invalid reading, they use the same urine in a new cup.82 Ms Eastaughffe was not aware of the faulty cup on 26 April 201783 but was clear in her evidence that to the best of her knowledge it does not happen very often.84

[59] Considering the evidence on this matter, it is not clear whether or not the testing cup was faulty simply because it recorded a non-negative result in circumstances where the cut off level is below 50μg/L. This may be because the cup was faulty. It may also be because the level of the drug detected was above 50μg/L at the time of collection but had dropped to 24μg/L. It may also have been because as Ms McCombe put it, laboratory analysis is more accurate and specific and will often produce a result which is lower than the on-site screening cut-off which detects a number of different metabolites and is less specific. One will never know the answer and it is not necessary to know as I agree with the Respondent that the submissions of the Applicant on this point are misconceived because on site testing is simply a screening device which triggers the requirement for confirmatory laboratory analysis.

The chain of custody document

[60] Ms Eastaughffe completed a chain of custody form titled ‘Drug and Alcohol Site Testing Form’ signed by the Applicant. 85

[61] Clause 2.2.4 of the Australian Standard set outs what information the form should contain and that the forms must be properly completed by a collector and donor. It sets out at clause 2.2.4(a)-(h) what information the chain of custody form shall have as a minimum. The Applicant submits that the chain of custody form did not include information at 2.2.4(f) – (h) that is, declaration by the collector that the specimen has been collected and if applicable tested on-site in compliance with the Australian Standard, requesting authority details and results of specimen integrity checks carried out at the point of collection. 86

[62] The Respondent submits that the form contains all of the information that is required by the Australian Standard and that it is unclear on what basis the Applicant claims any information required to be completed has not been completed. Further, that in any case there is no suggestion that the analysis results are not from the Applicant’s sample. 87

[63] In relation to clause 2.2.4(f) declaration by the collector that the specimen has been collected and if applicable tested on-site in compliance with the Australian Standard, it is clear that the ‘Collector Declaration’ section of the chain of custody form completed by Ms Eastaughffe certified that the sample was collected/tested in accordance with the Australian Standard as the box ‘AS/NZS 4308 (urine)’ is ticked. 88 In relation to clause 2.2.4(g) requesting authority details, the Australian Standard defines a requesting authority as “An individual, agency, or organisation that requests and ensures that collection and testing of a donors urine for the presence of drugs and the reporting of results are in compliance with this Standard”. The form includes the company name and site address and Ms Eastaughffe has included her full name, signature and the date in the collector declaration box. She gave evidence that where the collector is required to tick ‘yes’ or ‘no’ to the statement ‘AQTF Assessed & Certified’ it was an oversight on her part that she did not tick a box or fill in her collector certificate number.89 Finally, in relation to clause 2.2.4(h) results specimen integrity checks carried out at the point of collection, the box ‘kit integrity seal intact’ is ticked. Ms Eastaughffe’s evidence is that the other boxes do not need to be completed if the seal is intact.90

[64] Therefore, from Ms Eastaughffe’s perspective at least, all the information that was required to be completed had been completed. However, I accept that the chain of custody form was not completed to the required standard. However, once again, the fact this occurred does not of itself give rise to a concern about the integrity of the sample.

Storage and transport of the specimen

[65] The Applicant submits that the evidence demonstrates that in order to comply with the Australian Standard there is a requirement for testing devices to be used and stored in accordance with manufacturer’s instructions and that the Respondent has failed comply with that requirement. 91

[66] The Urine Drug Confirmation Certificate from Racing Analytical states that the Applicant’s sample was collected on 5 May 2017 at 07:30 and received on 8 May 2017 at 11:41 at a temperature of 34 degrees Celsius. 92

[67] The DrugCheck Drug Screen Cup used by the Respondent is compliant with the Australian Standard. During the hearing the Applicant tendered a document titled ‘DrugCheck Drug of Abuse Tests’ document, the ‘Package Insert for Single Test Strip, Multi-Drug Screening Dipcard and Multi-Drug Screen Test Cup’. 93 In a section titled ‘Specimen Storage’ the document states that urine specimens may be stored at 2 to 8 degrees for up to 48 hours prior to testing.94 Ms Eastaughffe was asked during cross-examination if the sample was despatched in refrigerated packaging to which she confirmed it was not.95 She later confirmed the only time urine would ever be stored in a fridge is if testing was done on the weekend.96 The evidence of Ms McCombe also confirmed that the Applicant’s sample was unrefrigerated and that “although this sample was collected on Friday 5 May 2017 and transported over the weekend for delivery to the laboratory on Monday unrefrigerated, it is our [Racing Analytical] understanding that the vast majority of samples are treated this way from all parts of Australia”.97

[68] Dr Pidd gave evidence that the Australian Standard states the sample needs to be stored appropriately and that to minimise the risk of either deterioration or contamination of the sample it is generally accepted that urine samples need to be frozen if it is going to take any length of time or potentially be subjected to temperature variations. 98 Dr Pidd’s evidence is that the Applicant’s concern that a time period of nearly three days elapsed between the collection and receipt of his sample and that it was not refrigerated during this time is valid as poor temperature control affects urinalysis and cannabinoid instability in urine. Further, that it is widely acknowledged that onsite drug screening kits may be compromised if they are not stored correctly and kept at the correct temperature during storage and transportation.99

[69] The Respondent submits that the evidence of Dr Pidd in respect to refrigeration of the Applicant’s sample should be rejected. The evidence of Ms McCombe is that if there was any degradation of the specimen in transport this would only have the effect of reducing the amount of THC detected in the sample. The Applicant accepted the evidence of Ms McCombe on that point. 100 Further, Ms McCombe confirmed it was usual for there to be a delay between collection and analysis.101

[70] Notwithstanding the concession of the Applicant referred to in the previous paragraph, the fact that the specimen was not refrigerated remains relevant to a consideration of the requirements of the Australian Standard, which requires refrigeration were not met, in this case by compliance with manufacturer’s instructions and that the evidence shows that the Respondent failed to comply with the requirement for testing devices to be used and stored in accordance with manufacturer’s instructions. 102

[71] I agree with the submissions of the Applicant that the Australian Standards were not met in respect to the refrigeration of the specimen. However, the uncontested evidence of Ms McCombe is that, if anything this would have reduced the amount of cannabis recorded in the sample.

Compliance with the requirements of Australian and New Zealand Standard AS/NZS 4308:2008 (the Australian Standard)

[72] Having regard to the consideration above, I am satisfied that the Respondent has in a number of respects failed to comply with the Australian Standard for the collection and transport of the Applicant’s urine sample. The fact that the Respondent has failed to do so in a number of respects is important but should not be overstated. It is important because the Respondent’s own policies claim that the Australian Standard will be applied 103 and they have failed to comply in a number of respects. Compliance with the Australian Standard is voluntary, not mandated. A failure to comply with the Australian Standard means that confidence in the testing process may not be ensured and the integrity of the testing process cannot be taken for granted. I make the important point that it is obvious that compliance with an Australian Standard requires more than simply making a statement of intent, in this case by an employer. It requires resources to be deployed to ensure that the objective is achieved. Had the Respondent actually complied with the Australian Standard, the conduct of this matter would have been quite different, as the logical extension of the Applicant’s position is that if the Australian Standard is complied with, there can be no question about the integrity of the testing process. The Respondent did not do so and therefore a rigorous consideration of the integrity of the test results is required in order to establish whether, on the balance of probabilities, the alleged misconduct occurred.

[73] Having regard to the consideration above, while it is clear that in a number of respects the Respondent failed to properly comply with the Australian Standard, I am not satisfied that any of the particular failures canvassed give reason to doubt the ultimate laboratory result that showed that the Applicant tested positive for THC.

[74] What is also important is that there is no reason to believe that the sample is not the Applicant’s sample. Mr Flanagan conceded that there is no evidence that the sample that was delivered was not the Applicant’s urine sample. 104 Nor is there any evidence that the sample was tampered with in some way. This point was also rightly conceded by Mr Flanagan.105 Racing Analytical is a NATA accredited laboratory which does comply with the Australian Standard and the cut-off level for the testing undertaken by Racing Analytical is 15μg/L.106 The Applicant does not take issue with the analysis undertaken by them.107 The Applicant’s own evidence is that he did in fact consume cannabis when he shared a joint with some friends on 27 April 2017 and the results of the drug test and analysis are consistent with him having smoked cannabis 8 days before the sample was collected.108 Overall I am satisfied on the balance of probabilities that the Applicant returned a non-negative test result at 24μg/L for THC and that this was a valid laboratory test result.

Does the Respondent operate a safety critical work environment?

[75] The Respondent operates an underground polymetallic base metals mine which is approximately 1500 metres deep. The Respondent submits that in a safety critical environment, people may die if safety rules are breached and its drug and alcohol policies and procedures are safety rules in this environment and that its zero tolerance approach to drug breaches is to prevent deaths and serious injury. The Respondent asserts that there can be no doubt that underground mining operations constitute a safety critical work environment. 109

[76] Mr De Meillon gave evidence that mining is a safety critical environment. Mr De Meillon explained that the Respondent operates heavy machinery in a very confined space; there are ventilation requirements underground, that they use a lot of explosives underground in a small area and it is not uncommon to have explosives, vehicles and heavy machinery passing within metres of each other. Further, that anything that goes wrong can easily result in fatalities in the mining industry, so it is very important that the Respondent manages safety. 110

[77] In the Applicant’s role he was primarily performing Charge-Up activities which relate to the use of explosives for blasting in the mine. He was required to work at heights of up to 5.5 metres, work around open voids, operate machinery underground, load stopes and handle explosives. 111 During cross-examination the Applicant agreed that there was that there is “absolutely” a genuine fatality risk that is ever present in this particular work environment because these activities are all inherently dangerous.112 Further, he agreed that this environment requires hazards to be managed and good concentration, alertness, reaction times, attentiveness and clear thinking are critical to staying safe.113

[78] The Applicant agreed that the mining industry which he has worked in for around 20 years, particularly working underground is a safety critical environment. 114

[79] It is agreed by the parties that underground mining is a hazardous work environment. 115 I am satisfied that it is clear on the evidence that the Respondent operates a safety critical work environment.

Do the Respondent’s policies and procedures in relation to drugs require employees to test negative for illicit drugs as opposed to being less than 50μg/L?

[80] The Applicant claims that the MMG Drug and Alcohol and Fitness for Work Procedures do not adequately set a prescribed limit for screening/testing for drugs which would result in a breach of the policies and that the only ‘reasonable inference’ that could be drawn from the requirement to comply with the Australian Standard is that a breach will occur if an employee records a THC level which exceeds 50μg/L. 116

[81] The Respondent submits that it applied a zero tolerance approach to drug breaches and the MMG Fitness for Work Procedure, Drug and Alcohol Policy and Code of Conduct are clear that an employee is required to return a negative result for illicit drugs. 117 Further, that the Commission has considered similar policies and found that, where no ‘threshold limit’ is stated, the threshold is for whatever form of testing is being used to apply.
[82] The MMG Fitness for Work Procedure outlines at clause 5.9 that site testing is conducted in accordance the Australian Standard and that, following a non-negative on-site screening test, the sample is sent with a completed chain of custody to a laboratory for confirmatory testing in accordance with the Australian Standard. Clause 5.18 is titled ‘Breach and the Consequences’ and provides that an employee will be in serious breach of this procedure and face disciplinary action if they have a positive test for illegal drugs following a drug test. 118

[83] The MMG Drugs and Alcohol Procedure also outlines at clause 5.3.2 that site testing is conducted using drug screening devices which comply with the Australian Standard and should an on-site screening test have a non-negative result, the sample will be sent with a completed chain of custody to a laboratory for confirmatory testing in accordance with the Australian Standard. Clause 5.10 provides that an MMG Person (which includes an employee) will be in breach of the procedure and face disciplinary action if ‘following a non-negative onsite screening test a confirmatory laboratory analysed sample has tested positive for illegal drugs…’ and that ‘the disciplinary action for any breach of this procedure will result in termination of employment…unless the MMG Person can demonstrate, to the satisfaction of the General Manager Australian Operations, reasonable grounds as to why their employment… should not be terminated’. 119

[84] The MMG Code of Conduct applies to all MMG People across the world when working for or on behalf of MMG. The MMG code of conduct states that a minimum requirement includes a responsibility to ensure ‘… you perform your work free of the influence of alcohol, illegal drugs and prohibited substances’. Further in a section titled ‘Did you know?’ states that ‘MMG requires you to have a 0.00 illicit substance and Blood Alcohol Content (BAC) while at work. Disciplinary action will be taken if you test positive for illegal or prohibited substances’. 120

[85] It is abundantly clear that the Respondent had adopted a zero tolerance approach to illicit substances including cannabis. The submission of the Applicant that it can only be inferred that a breach will occur if the employee is above 50μg/L is not plausible when considered against the evidence set out above.

Was the Applicant aware of the zero tolerance approach and that dismissal was a likely consequence of a breach?

[86] The Respondent submits that its drug and alcohol procedures are safety rules in a safety critical environment and that its zero tolerance approach to drug breaches is to prevent deaths and serious injury. 121 Further, that the Applicant was aware that, in the absence of exceptional circumstances, termination of employment was the likely consequence for failing a drug test.122

[87] The Respondent submits that there may reasonably be some criticism of the roll out of the Respondent’s policies or procedures in that, in particular, the Drug and Alcohol Procedure had not been “rolled out” and that employees had not been trained in it. 123 However, the Respondent submits that it is clear the Applicant was very much aware of the fact that he could fail a random drug test and if he did his employment could be terminated. Furthermore, that it is clear that the Applicant’s evidence demonstrates he was aware that failing a drug test was the breach and the trigger for disciplinary action as opposed to presenting with any level of impairment.124

[88] It is agreed that the Applicant received training in the MMG Code of Conduct several times, most recently on 10 February 2017 and completed online site induction on 15 December 2016. 125 The MMG Code of Conduct provides that disciplinary action will be taken if employees test positive for illegal prohibited substances. Ms Dibben confirmed that this applied to the Respondent’s zero tolerance policy for both drugs and alcohol.126

[89] The online site induction includes a module on Alcohol and Drug Management which states that the Respondent has ‘zero tolerance for illicit drugs’. 127 The online induction audio includes, among other things, the following:

“All personnel accessing site must abide by our Fitness for Work policy. It is your legal responsibility to arrive fit for work every day. This means… Not being under the influence of drugs, including prescription drugs… if you believe you are not fit for work, notify your supervisor.

… So the rule is simple! Present to work Fit for Duty. Don’t be impaired by drugs or alcohol. And remember! Failure to comply with these rules may result in your removal from site and disciplinary procedures including termination of employment.” 128

[90] Ms Dibben’s evidence was that the zero tolerance approach is strictly enforced across the site and that the Applicant was aware of the Respondent’s zero tolerance approach because of the training he received. Further, that the Applicant would have been aware that other employees had their employment with the Respondent terminated due to drug breaches. 129

[91] The Applicant submits that the Respondent is not entitled to rely on the MMG Fitness for Work Procedure as the Respondent failed to provide the Applicant with a copy or provide training and education in relation to the policy. Further, that it’s not entitled to rely on the MMG Drug and Alcohol Procedure as it also failed to provide the Applicant with a copy or provide training and education in relation to the policy and further, that the Respondent failed to consult with employees about the preparation or amendments to the policy which forms part of the Respondent’s health and safety management system and it therefore failed to comply with s.21 of the Mines Work Health and Safety (Supplementary Requirements) Act 2012 (Tas). 130

[92] The Applicant gave evidence that he could not recall when the MMG Drug and Alcohol Procedure was introduced, he was not provided with a copy and he did not receive any training in relation to the procedure. 131

[93] In relation to MMG Drug and Alcohol Procedure, Ms Dibben gave evidence that the procedure was introduced in 2016 because in mid-2015 the Respondent restructured to be an Australian operation. The Respondent has mines in Western Australia, Tasmania and Queensland and was standardising some of the policies and procedures that it had individually at different sites to be consolidated into one procedure. Ms Dibben’s evidence was that a lot of the terminology in the MMG Drug and Alcohol Procedure is similar to the MMG Fitness for Work Procedure at MMG Rosebery. However, the Respondent was seeking to standardise what they were already doing in practise into a cohesive Australian operations procedure. 132 Ms Dibben also stated that some of the points were clarified “in terms of the discipline” but it wasn’t different to how the Respondent was applying it in practice. Ms Dibben stated that she did not believe that the procedure was rolled out.133

[94] During cross-examination Ms Dibben confirmed that the statement ‘the disciplinary action for any breach of this procedure will result in termination of employment…unless the MMG Person can demonstrate, to the satisfaction of the General Manager Australian Operations, reasonable grounds as to why their employment… should not be terminated’ was a new addition to the procedure but was not a departure from what they did in practice, which was that termination of employment was the benchmark for zero tolerance breaches and they would work backwards from there if there were mitigating circumstances. 134 Ms Dibben confirmed that the new description is not found in the Code of Conduct or the MMG Fitness for Work Procedure; however, she asserts that she didn’t think it was a significant departure from the previous descriptions which include the words ‘will include disciplinary action’. Ms Dibben said that disciplinary action could be anything from formal counselling to termination.135

[95] In relation to the MMG Fitness for Work Procedure the Applicant gave evidence that he had not received training in the policy and that his understanding of the policy was that if an employee had a non-negative result they would be counselled and stood down until they could provide a negative result, then they would be reinstated. 136 The Applicant accepted that he had a copy of the procedure however his evidence was that the Respondent did not provide him with a copy and he “acquired the policy most likely around representing someone else”.137

[96] However, it is important to note that the Applicant was apparently well aware that termination of employment was a potential outcome from a breach of the policy when interviewed during the disciplinary process and prior to his dismissal as is evidenced in the following notes of interview on 11 May 2017:

“Is there anything else you would like to add, anything we need to consider? No, just one of those things. I never had any need to be totally aware of the policy. I’ve made a wrong decision in smoking it – openly admit that. Disappointing part for me, I made assumptions which were wrong, would never come to [sic] here not fit because I know the ramifications of that. I did what I though [sic] was safe thing to do (self-test).

What do you think the ramifications are? Potentially you’d be dismissed.” 138

[97] Further, during the hearing the Applicant stated that he understood the term disciplinary action in the code of conduct to mean, “…anything from a verbal warning through to final written warning or dismissal”. 139

[98] The Applicant’s wife Mrs Harding gave evidence that the Applicant purchased a drug screen test from the chemist on his way to Rosebery on Wednesday 3 May 2017 and the result was negative. 140 During cross-examination Mrs Harding was clear that the Applicant was not concerned about any impairment and he considered that he was fit to return to work and that the sole reason for the Applicant purchasing the home testing kit was a concern not to have any cannabis in his system and be tested positive in the workplace.141 Mrs Harding was clear in her response that the reason the Applicant had such a concern was that his employment could depend on it.142

[99] Considering the evidence on this point, it is clear that the Applicant was aware of and had received training in the Respondent’s Code of Conduct and he had completed the online site induction which includes a module on Alcohol and Drug Management which states that the Respondent has ‘zero tolerance for illicit drugs’. I accept the Applicant’s evidence that he did not receive training in the MMG Fitness for Work Procedure. However, it is clear that he was aware of, and had a copy of the procedure from when he was representing another employee in his capacity as a union delegate. I accept that as a result of the Respondent’s apparent flawed process in its roll out of the Drug and Alcohol Procedure for Australian operations the Applicant was not provided with a copy nor did he receive any training in this procedure. However, overall I am satisfied that the Applicant was aware of the zero tolerance policy.

[100] Considered against the evidence, the Applicant’s assertion that he thought zero tolerance was something other than recording a negative result based on the notation on the testing cups of 50μg/L is disingenuous. 143 The Applicant agreed during the hearing that the reference to 50μg/L could not be found anywhere in the employers materials and training he undertook.144 The Applicant was aware of the zero tolerance approach as a result of receiving training in the MMG Code of Conduct and the completion of the online site induction. The MMG Code of Conduct notes the requirement for employees to have 0.00 illicit substance while at work. Against this background of facts, the Applicant’s claim that he did not understand the requirement is simply not believable.

[101] As to whether the Applicant was aware that dismissal was a likely consequence of breaching the policy, it is noteworthy that the Respondent concedes that it failed to roll out the Drug and Alcohol Procedure. It is in that document that the words ‘the disciplinary action for any breach of the procedure will result in termination of employment’ are found. However, despite the Respondent failing to properly promulgate that policy, it is clear that the Applicant was aware that disciplinary action could be taken if he tested positive for illegal substances. Disciplinary action may well include termination particularly where serious misconduct is involved. The prospect of possible termination for a breach is included in the online site induction that the Applicant completed in 2016. The Applicant has admitted during the disciplinary process, prior to his dismissal, that dismissal was a potential outcome for a breach of the policy. The Applicant’s wife was clear that the reason that the Applicant had self-tested was because he was concerned not to have cannabis in his system and the reason he had this concern was that he knew his employment depended on it. Overall, I am satisfied that the Applicant knew that being detected with any level of THC in his system while at work would likely lead to dismissal.

Whether a zero tolerance approach for testing positing positive to cannabis is a lawful and reasonable direction

[102] The Applicant contends that a zero tolerance approach to testing positive for cannabis cannot be a lawful and reasonable direction. The Applicant submits that the Respondent’s “policy of a zero reading level for the use of cannabis, by using urine testing is not a lawful and reasonable direction as it has no proven relationship with impairment and therefore no relationship to a risk to health or safety of employees” concluding that there is not valid reason for termination because that policy is unlawful and unreasonable, as it applies to urine testing for the presence of cannabis or its inactive metabolite. 145 At the hearing in exploring this proposition with Mr Flanagan it seemed the position was that because there is no measurement of impairment for THC use, that the Respondent is not entitled to take action about it.146 There was also some reference to unspecified alternative forms of testing, of which there was no evidence before me, which would allow an employer to make an assessment as to whether an employee was fit for work because urine testing does not do that.147

[103] These submissions are at odds with the Full Bench authority in Owen Sharp v BCS Infrastructure Support Pty Limited (Sharp). 148 The Respondent submits, and I agree, that Sharp confirms that a zero tolerance approach to drug breaches is a lawful and reasonable policy for an employer to adopt, particularly in a safety critical environment.149

Evidence on the procedural fairness of effecting the dismissal

[104] The Respondent received the results of the analysis carried out by Racing Analytical on 9 May 2017. Ms Dibben contacted the Applicant by telephone advising that the test results from the laboratory had confirmed a non-negative result and requested that he attend a meeting with her and Mr Paul Soden on 11 May 2017, which he did. The Applicant was offered to have a support person present but declined. 150

[105] On 12 May 2017 Ms Dibben contacted the Applicant by telephone and requested that he attend a meeting on 15 May 2017. The Applicant met with Mr Soden and Ms Dibben and was offered to have a support person present but declined. During this meeting, the Applicant was advised, among other things, that the drug test had returned a positive result of 24μg/Lfor THC and the Respondent was considering potential disciplinary action up to and including termination of his employment. The Respondent provided the Applicant with a letter outlining the findings, advising that it was considering disciplinary action including termination and requiring a response by 18 May 2017. The Applicant provided a response and on 25 May 2017 Ms Dibben contacted the Applicant by telephone and requested that he attend a meeting on 26 May 2017. 151

[106] On 26 May 2017 Mr De Meillon and Ms Dibben met with the Applicant. During this meeting there was a discussion about the Applicant’s response and the findings. The Applicant was advised his employment was terminated and provided a letter of termination. 152

[107] The Applicant accepts that the Respondent met with him and provided him with an opportunity to respond to its show cause letter prior to terminating his employment. However, he submits that it is questionable whether he had a meaningful opportunity to respond to the allegations when there is “so much uncertainty about MMG’s policies and procedures”. 153

[108] Ultimately, Mr Flanagan agreed that there is no real challenge to the factors relating to procedural fairness and that what is really in contest in this matter is valid reason and the treatment of the other factors in 387(h) of the Act. 154

Respondent’s treatment of other employees with drug breaches

[109] The Respondent submits that the evidence of the Respondent indicates that its zero tolerance approach to drug breaches is strictly enforced. 155 Ms Dibben gave the following evidence during the hearing in relation to her personal experiences in relation to breaches of the Respondent’s zero tolerance approach to drug breaches:

“There’s been, in the last two years, seven THC breaches at Rosebery. Four have been contractors and three have been MMG employees, including Mr Harding. All of them have been terminated with the exception of one who was given a mercy option to remain to the contractors. Their site access was revoked and then one was terminated - an MMG employee in March 2016. Another gentleman was given a termination with a mercy option earlier this year and then Mr Harding.

Well, if we can certainly just go through those bit by bit. So there were four contractors who all tested positive to THC. Is that correct?  -That’s correct.

And so have all of the drug breaches been THC?  -Yes.

Okay. And in relation to the employees you said there was one in - was it March of 2016?  -Yes.

And so what was the role of that particular individual?  -He was a mine underground trainer.

Okay. And what were the circumstances of the breach?  -Simply that he had been celebrating the purchase of a house with his wife and had taken cannabis and then returned to work, I believe, it was six days later.

Six days later?  -Yes.

And how much cannabis did he say he had consumed?  -He said he had taken one - I don’t know how you would describe it - one smoke - one spliff.

Okay. And was that reported as a one-off? Or a habitual user?  -He said it was a one-off. Just a celebration.

Okay. And how many years had he been employed by the company?  -Off-hand I think 12. I would have to go back to my notes to - - -

So, about 12?  -Around 12 years I believe.

Twelve years. Okay?  -A little longer.

And the outcome?  -He was terminated.

Okay. And you mentioned another employee in April of 2017. What was the role of that particular employee?  -He’s an operator underground.

And what were the circumstances - sorry, in relation to that one you said there were some extenuating circumstances that caused you to deviate from the default position of termination. Is that correct?  -Yeah, well it was during the investigation he raised with us that he was having some depression and mental health issues that he was going through marital issues. There was issues with his children. His wife also was dealing with some post-traumatic stress. She had been the first on the scene at a double fatality accident. So she was dealing with that. She also went to do a welfare check on her neighbour who had passed away and was actually being eaten by the dogs.

So she was - he was trying to be a supportive husband and go through that marital issues and then obviously he was suffering depression. So he had also started to seek treatment through our EAP. So - - -

Okay. And I think you said to the Commissioner that he was given a mercy option is that correct?  -He was, yes.

Can you explain to the Commission what do you mean by that?  -We found that his breach had warranted a termination, however, given the extenuating significant circumstances around his personal issues we set through a criteria in that he would be able to return back to work. So, off the top of my head it was things like mandatory counselling, regular drug testing, drug rehabilitation.” 156

[110] The evidence of Ms Dibben is consistent with the evidence of Mr De Meillon who gave evidence that as the mine manager he has been involved with positive drug tests and that arising from seven breaches across two years from contractors and employees, all but one person was “given another chance with conditions due to significant mitigating personal circumstances”. 157

[111] Mr De Meillon’s evidence was as follows in relation to what was particularly extenuating about the individual whose employment was not terminated:

“The one individual we didn’t terminate, we know him quite well at our site, he has been with us for a long time. He was having a lot of personal circumstances with his wife, I know his wife was rushed to hospital a few times; and he was also managing dealing with his three small children at school; and he also had a lot of family issues from his cousins and relatives. They were staying at his house in Rosebery, had come to visit him from New Zealand, so he had a lot of personal circumstances going on. I don’t have the full details about his wife, but I know there was a lot of personal mental issues going on with her, and she had some serious health concern issues. Like I said, on one occasion she was rushed up to hospital in an ambulance, and I believe her heart stopped beating for a few minutes or for a while; and on several occasions we let him leave work due to deal with personal circumstances.” 158

[112] The limited evidence I have as to the approach the employer takes to breaches of the requirement to be free of alcohol suggests the Respondent is less consistent. Ms Dibben confirmed that at Blood Alcohol Reading (BAC) of 0.00 is subject to the zero tolerance policy. 159 However she also confirmed that there are examples of employees who have not been terminated for breaches of the zero tolerance policy for alcohol.160 Ms Dibben maintains that breaches of the alcohol policy would lead to termination however that there are situations where they would not. Her evidence is that two final written warnings were issued this year and a termination last year for breaches of the alcohol limit.161 Ms Dibben was vague on the reasons for not terminating those individuals stating “those specifically, were around I guess, the circumstances around, and turning-arriving to work, the levels”162 and further on cross examination:

“Now, the evidence of Mr Harding is that he is aware of at least three other employees who have presented with a blood alcohol reading of greater than 0.00 and your evidence is that two of them were subject to a final warning. Can you tell us how that’s consistent with the zero tolerance approach of MMG?  -Um - we take every situation into account. There’s been times when people have been terminated but in these instances it was a very low reading and depends on the individual circumstances. I don’t know offhand the individuals. That was some time ago.” 163

[113] It is clear that there is a difference with the testing regime with BAC in that employees cannot enter the site without being subject to a breath analysis. If they fail a breath analysis, by recording a result over 0.00 at the entry gate they are subject to a confirmatory test.

[114] Overall, the evidence suggests that the Respondent has been consistent at least as far as treatment of breaches of the policy for testing positive for illicit drugs.. With alcohol, the Respondent has been less consistent, although I have less information around what the circumstances were for those individuals who were not dismissed despite presenting for work with a positive BAC reading. There is certainly concern with Ms Dibben stating that the levels of BAC were a factor, in circumstances where the policy is zero tolerance. This needs to be taken into account as factor in determining whether the dismissal was unfair.

Effect on the Applicant of the termination

[115] The Applicant submits that he did not deserve to be dismissed from a job he loved and was good at because he made the mistake of smoking a joint of marijuana with friends a week before he was due to return to work. 164 It is submitted that the Applicant should be given credit for his unblemished work record for over nine years of service with the Respondent and the character references he has provided, including from a superior that show he was highly respected at the Rosebery mine.165

[116] The Applicant claimed that he was under a considerable amount of stress when he smoked the marijuana given the dire health situation of his mother which was worrying him and he was enjoying the distraction of spending time with his friends.   He had also consumed alcohol which is likely to have impacted upon his decision making. 166 This evidence however is inconsistent with the statements made by the Applicant at the disciplinary interview:

“Are there any mitigating factors that we need to be aware of to consider in this investigation? Is there a reason you attended work whilst possibly still affected by an illicit substance? No, just an occasion where I let my guard down and made a poor choice.

What was the actual reason you’d done this? Pleasure or issues? Just a social situation, out with friends.” 167

[117] The Applicant claims that he would suffer hardship if his employment is not reinstated. It was submitted that living in a remote area of Tasmania there was little likelihood of him finding comparable work in the vicinity of his residence. 168 The Applicant gave evidence that he would likely have to work interstate on a fly-in/fly out roster which would impact his family life with his two adult sons. The Rosebery mine is an hour and 20 minutes from his home so in a worst case scenario if he had to be home he could be home in a couple of hours. Whereas, working interstate would require far more travel in the Applicant’s own time.169 The Applicant’s wife also gave evidence that if the Applicant was not re-instated it would have a massive impact on their lives as he would be required to do fly-in/fly-out work which would primarily leave him with five days out of three weeks that he would be home with his family.170 The Respondent submits that in reality, the Applicant’s claim of hardship amounts to no more than a preference to remain working in the North-West of Tasmania.171

[118] The Applicant does not claim that he is unable to secure alternative employment or that there are no opportunities. In fact, the Applicant has successfully obtained paid employment interstate on or about 21 September 2017, which is subject to a 6 month probationary period. 172 The Applicant is engaged by contractor and his earnings are roughly equivalent to the earnings he was receiving from the Respondent.173

[119] The Respondent submits that having already secured fly in/fly out work, which was not his preference does not amount to any personal circumstances which justify a departure from the zero-tolerance approach. 174

Consideration

Was the dismissal harsh, unjust or unreasonable?

[120] The ambit of the words “harsh, unjust or unreasonable” in the context of a dismissal was explained in Byrne & Frew v Australian Airlines Ltd¹⁷⁵ by McHugh and Gummow JJ as follows:

“. . . It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”¹⁷⁶

[121] Ultimately, however, it is the matters set out in s.387 of the Act to which regard must be had.

Section 387(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)

[122] There must have been a valid reason for the dismissal related to the Applicant’s capacity or conduct, although it need not be the reason given to the Applicant at the time of the dismissal.¹⁷⁷ To be a valid reason it must be “sound defensible or well founded”. The Commission must make a finding as to whether the conduct occurred based on the evidence before it.¹⁷⁸

[123] The Respondent submits that there is a valid reason relating to the Applicant’s conduct as the Applicant engaged in a substantial breach of the Respondent’s policies and procedures. 179 The Respondent submits that the Applicant breached the Fitness for Work Procedure and the Drug and Alcohol Procedure. Whilst the Code of Conduct refers to the term ‘influence’ (and the Applicant denies he was in any way affected by drugs when he presented for work) there is no way to determine with certainty at what stage a person is or is not influenced by illicit drugs and the Commission can find that the Applicant also breached the Code of Conduct.180

[124] The Applicant submits that there is not a valid reason for the dismissal because the Respondent is not entitled to rely on the testing result of the Applicant’s urine specimen as the Respondent failed to comply with its own policies in failing to comply with the Australian Standard, that it is not entitled to rely upon its Fitness for Work Procedure or its Drug and Alcohol Procedure because it did not provide the Applicant with a copy of the policy and provide the Applicant with awareness training and education and it had failed to comply with its statutory obligation to consult in relation to the Drug and Alcohol Procedure in accordance with s.21 of the Mines Work Health and Safety (Supplementary Requirements) Act 2012 (Tas). Further, that the Respondent’s policies form part of the Applicant’s contract of employment and the failure of the Respondent to Act in accordance with its own policies is in breach of that contract. 181

[125] In the alternative, the Applicant submits that the reason for the Respondent’s decision to terminate the employment of the Applicant was not “sound, defensible or well founded”. 182

[126] In considering whether or not there is a valid reason, the decision of the Full Bench in Sharp is of considerable assistance. In that matter Mr Sharp was employed to perform work which constituted ‘Safety Sensitive Aviation Activities’ at Sydney Airport and was dismissed for returning a positive drug test result for cannabis. Mr Sharp admitted to smoking cannabis the weekend prior to the drug test. In Sharp, the Full Bench found that employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis may be considered lawful and reasonable, at least where safety-critical work is involved. The reasoning for that approach is set out in paragraph [24]:

“[24] Before we turn to Mr Sharp’s appeal grounds, it is convenient to make a general observation about this matter. As the Vice President correctly found, the issue in this case was not Mr Sharp’s “out of hours” conduct in smoking cannabis, but rather that he attended for work (which involved the performance of SSAA) with a level of cannabinoids that was above (and very significantly above) the permitted threshold. That was “at work” conduct. Undoubtedly from Mr Sharp’s perspective it seems harsh that he was dismissed as a result of this in circumstances where he did not consider himself to have been impaired or to have represented a risk to anyone’s safety. However, a critical consideration in assessing whether a dismissal in these types of circumstances was unfair is the fact that there is currently no direct scientific test for impairment arising from the use of cannabis. Saliva testing can more accurately detect recent cannabis use than urine testing, which means that it may be a better proxy indicator of the possibility of impairment, but it remains the case that it cannot conclusively demonstrate impairment or non-impairment. Therefore, where an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position. In practical terms, it will be unlikely that the employer will be in a position to independently ascertain when the relevant employee consumed cannabis and the quantity that was consumed. Apart from reliance upon the employee’s own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety. For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable. Likewise, depending on all the circumstances, it may be reasonably open to find that a dismissal effected pursuant to such a policy was not unfair.” (References omitted) 183

[127] Also important is the Full Bench decision in Harbour City Ferries Pty Ltd v Christopher Toms (Harbour City Ferries) 184 which dealt with the application of zero tolerance policies and the need for employers to have such policies complied with by their employees:

“[27] The lack of any impairment arising from drug use, the absence of a link between drug use and the accident and the absence of substantial damage to the Marjorie Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the Policy. The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.” 185

[128] The Respondent submits and I agree that there are 3 issues that arise in this matter in considering if there is a valid reason. These are as follows:

1. Whether there is a ‘safety-critical’ workplace justifying a zero-tolerance approach to drug breaches;

2. Whether there was in fact a zero-tolerance of drug breaches such that an employee would reasonably expect that their employment would be terminated for returning a positive confirmatory result for cannabis; and

3. Whether the Applicant did in fact return a positive confirmatory result for cannabis – i.e. was there any question about the integrity of the analysis of the Applicant’s urine sample. 186

[129] As to whether the Respondent is a safety critical workplace it is an agreed fact that the Respondent’s operations constitute a hazardous work environment. 187 The Applicant agreed himself that the mining industry, particularly working underground is a safety critical environment.188 The Applicant also confirmed that he was responsible for performing work which required him to work at heights of up to 5.5 metres, operate heavy machinery underground, work around open voids and handle explosives. Further the Applicant agreed that there is a genuine fatality risk ever present in the work environment as they are all inherently dangerous activities.189 I have set out above my consideration of this matter and am satisfied that it is clear on the evidence that the Respondent operates a safety critical work environment

[130] As to whether there was in fact a zero tolerance for drug breaches such that an employee would reasonably expect that their employment would be terminated for returning a non-negative result, I have also set out above my consideration of this matter. I am satisfied on the evidence that the Respondent applied its zero tolerance approach to drug breaches and the Applicant was aware that termination of employment was a potential outcome.

[131] As to the integrity of the urine test, again as set out above, I am satisfied that despite the fact that the process did not meet the Australian Standard in a number of respects, an examination of each of those matters does not give rise to a concern that the integrity of the sample provided was compromised in any way. There was no attack on the integrity of the testing done by Racing Analytical. I am satisfied that the Applicant returned a non-negative result at 24μg/L for THC and that he was therefore in breach of the zero tolerance policy.

[132] I will deal briefly with the submission of the Applicant that there is not a valid reason because the Respondent’s policies form part of the contract of employment and the failure of the Respondent to act in accordance with its own policies is in breach of that contract. Even if it is accepted that the contract of employment was breached in the manner contended by the Applicant this does not alter my finding that the reason for the dismissal was a valid reason. In all of the circumstances it is a sound and defensible reason.

[133] In this case, the Respondent had a zero tolerance approach to drug breaches which provided for disciplinary action including dismissal where an employee tests positive for cannabis. The work place was one where safety critical work is involved. Consistent with the decision in Sharp, I consider the policy of the Respondent to enforce a zero tolerance approach to be lawful and reasonable. The Applicant was aware of the policy, and his claims that he was confused about the level of cannabis he could have in his system and comply with it are not believable. The Applicant consumed marijuana and it remained in his system at detectable levels sometime after the event. I accept the integrity of the test of the Applicant’s urine sample conducted by Racing Analytical. By attending work with THC in his system, he engaged in misconduct as he breached the lawful and reasonable direction to attend work without illicit drugs in his system. In a safety critical environment, this meant that there was a serious and imminent risk to health and safety of the Applicant and others working in the mine. Should there have been an accident, there would no doubt be consequences for the reputation of the Respondent.

[134] The Applicant’s failure to follow the Respondent’s lawful and reasonable direction to be free from illicit drugs was the reason for his dismissal. The reason is sound and defensible. Consistent with the Full Bench in Harbour City Ferries, the Respondent is entitled to insist on compliance with its policy. There is a valid reason for the Applicant’s dismissal.

[135] It is relevant that the Applicant attempted to self-test for the presence of THC and having found that the test result was negative, attended for work not expecting to fail a drug test. This calls into question the extent to which the Applicant deliberately or wilfully breached the policy. The Applicant’s own evidence is that he self-tested because he was concerned about a positive drug test when he returned to work. 190 Based on the negative reading from his self-test, he felt he would not be at risk of returning a positive drug test the following day when he returned to work.191

[136] I am satisfied that the Applicant did not set out deliberately to present for work with THC in his system, at least to a level above 50μg/L as that is the level the self-test kit tested for and the fact that he undertook the test at home is evidence of that. However, in respect to the self-test, the Applicant admitted under cross-examination to a number of things including that:

•  Nowhere in any of the Respondent’s policies and procedures is 50μg/L referred to as some sort of limit; 192

• Prior to this matter, he did not have any detailed understanding of what 50 micrograms per litre/50μg/L actually meant; 193

• Under the Respondent’s policies and procedures, the only way that it can be determined that an employee has a positive drug test is if the “lab comes back and says that somebody has tested positive to a drug”; 194

• The home testing kit is completely different to the one use by the Respondent; 195

• He followed the instructions on the testing kit because he had not done a self-test before and wanted to get it right; 196

• The instructions on the self-test make clear the home test provides only a “preliminary analytical test result”; and the only way to get a confirmed result is “through the lab”;  197

• The instructions on the self-test provide that clinical consideration and professional judgement should be applied to any drug of abuse test result and that he does not possess either of these attributes; 198

• The instructions also provide that THC remains detectable for 3 to 10 days after smoking and that he returned on the seventh day and was tested on the eighth day; 199

• Lastly, the instructions included a reference to limitations which states “it is possible that technical or procedural errors, as well as other interfering substances in the urine specimen, may cause erroneous results” And that “a negative result may not necessarily indicate drug-free urine. Negative results can be obtained when drug is present but below the cut-off level of the test.” 200

[137] Given this level of knowledge, the Applicant was foolish to rely on the self-test. He had no idea what he was doing. He had never done it before. If nothing else, having read the instructions, he was aware that he was returning to work inside the period where metabolites could still be detected, that the test could be defective and importantly that a negative result may not necessarily indicate drug free urine. 201 Further, that nowhere in any of the Respondent’s policies and procedures was there a reference to some sort of 50μg/L limit and that the lab will provide the only confirmatory result.

[138] Nevertheless, however misguided the Applicant was in self-testing, I accept that he did not wilfully breach the Respondent’s policy. To that extent, the misconduct is not misconduct that amounts to a repudiation of the employment contract. However, a valid reason for dismissal does not require conduct amounting to a repudiation of the contract of employment. 202 The fact remains the Applicant breached a lawful and reasonable direction of the Respondent. The reason for the dismissal is sound and defensible and this remains so irrespective of whether the employer breached the employment contract in the manner contended by the Applicant. There is a valid reason for the dismissal.

387(b) whether the person was notified of that reason and 387 (c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[139] Notification of the valid reason to terminate must be given to the employee before the decision to terminate is made²⁰³ in explicit terms and in plain and clear terms.²⁰⁴

[140] The Applicant accepts that the Respondent met with him and provided him with an opportunity to respond to its show cause letter prior to terminating his employment. However, submits that it is questionable whether he had a meaningful opportunity to respond to the allegations when there is “so much uncertainty about MMG’s policies and procedures”. 205

[141] The Respondent submits that the Applicant does not seriously contend these factors have significant weight in an assessment of whether the Applicant’s dismissal was harsh, unjust or unreasonable. However in any case, that the Applicant was notified of the reasons for dismissal in the letter of termination dated 26 May 2017 was given an opportunity to respond to the reasons for his dismissal on 11 May 2017 at a meeting with Ms Dibben and Mr Soden and 15 May 2015 as requested in the letter of this date and the Applicant provided a written response dated 18 May 2017. 206

[142] The Applicant agrees that there is no real challenge to the factors on procedural fairness. 207

387 (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

[143] The Applicant was invited to have a support person present throughout the process, and was never refused the attendance of a support person.

387(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal

[144] This factor is not relevant as the Applicant was not dismissed for unsatisfactory performance.

387 (f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures following in effecting the dismissal; and 387 (g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal

[145] The Respondent is a large organisation. There is no suggestion that the factors in s.387(f) and (g) would have had an impact on the procedures followed in effecting the dismissal. These are neutral considerations.

387(h) any other matters that the FWC considers relevant

[146] The Applicant submits that if I determine there is a valid reason for the dismissal that the termination of employment was nevertheless harsh, unjust and unreasonable. 208

[147] In B, C and D v Australian Postal Corporation²⁰⁹ the majority noted that it remains a bedrock principle in unfair dismissal jurisprudence of the Commission that a dismissal may be “harsh, unjust or unreasonable”, notwithstanding the finding that there is a valid reason for the dismissal.²¹⁰ I agree that this is the appropriate approach.

[148] The Applicant submits that objectively viewed the dismissal of the Applicant was harsh because:

(a) It was disproportionate to the gravity of the misconduct; and
(b) Of the consequences for the personal situation of the employee. 211

Gravity of the misconduct

[149] I have found that the Applicant is guilty of misconduct. It was clear on the evidence that it most certainly was conduct that caused serious and imminent risk to the health and safety of the Applicant and the people he was working with and potentially the reputation of the Respondent. He was working in a safety critical environment. Claims by the Applicant that he did not feel impaired by marijuana are beside the point. 212 It is common ground that there is no known way of measuring impairment from THC. The Respondent cannot determine a safe or unsafe level of THC for its employees to have in their system. It is for this reason that it has a zero-tolerance approach. The Respondent is entitled to apply and enforce that approach. This Commission is not in a position to determine what a safe or unsafe level of THC is for an employee in working in a safety critical environment. The possible consequences of the misconduct of the Applicant in presenting for work with THC in his system were clearly very serious indeed. This weighs strongly against a finding that the dismissal was a disproportionate response.
The self-disclosure option
[150] It was put to the Applicant during cross-examination that he had the option of self-disclosing his consumption of cannabis. The Applicant’s initial reaction to that proposition was that he did not know that and that he was not sure what the Respondent’s reaction would be to disclosure. 213 However, after further questioning, the Applicant agreed that he did have the option of self-disclosure.214 He agreed he did not avail himself of that option but instead took his chances with the self-testing kit, along with the knowledge of the serious disclaimers as the basis for his return to work. In doing so, the Applicant thought he was doing the right thing.215

[151] The Applicant agreed that had he chosen the course of self-disclosure, that he would not have been at risk of committing a serious breach of the Respondent’s policy; that if he had tested positive having self-disclosed, the Respondent would have sent him home, that he would come in the next day or day after and when he tested negative he would be able to return to work. 216

[152] I am satisfied that, on the Applicant’s own evidence, he was aware there was an option of self-disclosure but chose not to use it. One can understand in most circumstances being reticent to turn up to work and self-disclose the taking of an illicit drug. However, in this case the Applicant was aware of the option and agrees the likely outcome would have led to him being unable to work until he tested negative. This is a significant factor in my view and weighs against a finding that the dismissal is one that is disproportionate.

[153] It does need to be taken into account that the Applicant took some steps to test himself for THC before returning to work. Having tested negative in the self-test, the Applicant presented for work and in that context did not wilfully disobey the direction. However, as discussed earlier, he was wrong to take that approach, in light of the various disclaimers of the test, of which he was aware, and the option of self-disclosure, of which he was also aware but simply reluctant to use.

Impact of the dismissal on the Applicant

[154] The Applicant claims that he would suffer hardship if his employment is not reinstated. I have set out the relevant material on this matter above. In short, it was submitted that living in a remote area of Tasmania there was little likelihood of him finding comparable work in the vicinity of his residence and that the Applicant would likely have to work interstate on a fly-in/fly out roster which would impact his family life with his two adult sons. 217 The Respondent submits that in reality, the Applicant’s claim of hardship amounts to no more than a preference to remain working in the North-West of Tasmania.218

[155] As noted above, the Applicant does not claim that he is unable to secure alternative employment or that there are no opportunities. In fact, the Applicant has successfully obtained paid employment interstate on or about 21 September 2017, which is subject to a 6 month probationary period. 219 The Applicant is engaged by a contractor and his earnings are roughly equivalent to the earnings he was receiving from the Respondent.220

[156] The Respondent submits that having already secured fly in/fly out work, which was not the Applicant’s preference does not amount to any personal circumstances which justify a departure from the zero tolerance approach. 221

[157] Taking the above matters into account, I accept this factor weighs in favour of a finding of harshness but not significantly so.

The Applicant’s work history

[158] The Applicant submits that he should be given credit for his unblemished work record for over nine years of service with MMG and the character references he has provided, including from a superior that show he was highly respected at the Rosebery mine. 222

[159] The Respondent acknowledges the Applicant’s good work history, however, submits that a valid reason for a positive test to illegal substances given the clear and justifiable zero tolerance approach to drug breaches and procedurally fair process strongly militates against any considerations of harshness such that the dismissal is not unfair. 223

[160] The Applicant’s unblemished work history weighs in favour of a finding that the dismissal was disproportionate.

Failure of the Respondent to comply with its own policies and procedure

[161] Whether or not the Respondent has failed to comply with its own policies and procedures and in doing so has breached the contract of employment, as submitted by the Applicant, is indeed a relevant consideration when considering other relevant factors and will ultimately have some bearing on whether or not the dismissal is unfair.

[162] It is clear that the Respondent did not comply with its own policies in respect to applying the Australian Standard to the drug testing process. I also accept the Applicant’s evidence that he did not receive a copy of or awareness training/education in the MMG Fitness for Work Procedure and the MMG Drug and Alcohol Procedure from the Respondent. Further, as a result of the Respondent’s flawed process in its roll out of the MMG Drug and Alcohol Procedure it would also appear that, as submitted by the Applicant, the Respondent failed to consult with employees about the preparation or amendments to the policy which forms part of the Respondent’s health and safety management system and therefore failed to comply with s.21 of the Mines Work Health and Safety (Supplementary Requirements) Act 2012 (Tas). It is possible that its failure to do so may constitute a breach of the contract of employment. Irrespective, this factor weighs towards a finding that the dismissal was disproportionate. However in my view, a failure of an employer to comply with its own policies has to be considered in the particular circumstances of each case and weighed against all of the other factors. In this case, I am not satisfied that the failure of the Respondent to comply with some aspects of its policies affected the reliability of the laboratory test undertaken or resulted in the Applicant being unaware of the Respondent’s zero tolerance approach to illicit drugs and this has to be taken into account.

Conclusion

[163] The misconduct of the Applicant was at the serious end of the scale. He presented for work with detectable levels of THC in his system, in breach of a direction of the Respondent to present with zero levels of illicit substances in his system. The Applicant works in a safety critical workplace and he personally works with explosives. The Applicant was well aware of the Respondent’s policy. However, the Applicant sought to argue that he was confused as to what zero tolerance meant. The Respondent’s policy is lawful and reasonable. I do not accept on the evidence that the Applicant was confused. He attempted to self-test, but knew that the test may not be accurate and that metabolites can be detected for up to 10 days after use. The Applicant also knew he could self-disclose but elected not to do so. He was aware, but again sought to argue during the hearing that he was not aware that a breach of the policy would put his employment at risk. While it appears there has been some inconsistency in the Respondent’s approach to breaches of the zero tolerance policy in respect to alcohol, the Respondent has been consistent overall in the application of its zero tolerance policy with respect to drugs. The Applicant failed to follow a lawful and reasonable direction and is guilty of misconduct. There is clearly a valid reason for dismissal.

[164] The seriousness of the conduct of the Applicant, and the fact that he had the option of self-disclosure open to him weigh heavily in the consideration that the dismissal is not disproportionate. There is no challenge to the processes followed for effecting the dismissal which does not favour a finding the dismissal is otherwise unfair. The fact that the Applicant has had an unblemished work history and there will be some impact on him and his family if he is to not secure work in Tasmania, along with the fact that the Respondent failed in a number of respects to apply the Australian Standard inconsistent with its own policies, weighs towards a finding that the dismissal is harsh. However, in all of the circumstances of this case, those factors do not outweigh the seriousness of the conduct of the Applicant.

[165] Having considered all of the circumstances, I am satisfied that the dismissal is not disproportionate. Nor do I consider the dismissal to be otherwise harsh, unjust or unreasonable.

[166] The application for an unfair dismissal remedy is dismissed. An order will be issued concurrently with this decision.

COMMISSIONER

Appearances:

R Flanagan for the Applicant

S Masters and R Collinson for the Respondent

Hearing details:

2017

Hobart:

12, 13 September, 21 November.

Final written submissions:

7 November 2017.

<PR599910>

 1   Exhibit A3, Witness Statement of Paul Harding, Attachment PH7

 2   Exhibit A1, Witness Statement of Dr Ken Pidd, [1] – [2]

 3   Exhibit R3, Witness Statement of Victoria McCombe and PN869

 4   Exhibit R4, Agreed Statement of Facts, [1]-[3]

 5   Exhibit R4, Agreed Statement of Facts, [4]-[6]

 6   Exhibit R2, Statement of Stacey Dibben, Attachment B

 7   Exhibit R2, Statement of Stacey Dibben, Attachment C

 8   Exhibit A3, Witness Statement of Paul Harding, Attachment PH5

 9   Exhibit R4, Agreed Statement of Facts, [19]

 10   Exhibit A3, Witness Statement of Paul Harding, Attachment PH5

 11   Exhibit A3, Witness Statement of Paul Harding, Attachment PH7

 12   Applicant’s Closing Submissions, filed 17 October 2017, [193], [204]

 13   Respondent’s Outline of Submissions, filed 31 August 2017, [2] – [3] and Respondent’s Outline of Closing Submissions, filed 7 November 2017, [1] – [3], PN1645

 14   Exhibit R4, Agreed Statement of Facts, [8]

 15   Applicant’s Outline of Submissions, filed 9 August 2017, [4]

 16   Exhibit R4, Agreed Statement of Facts, [10]

 17   Exhibit A3, Witness Statement of Paul Harding, [12]

 18   Exhibit A3, Witness Statement of Paul Harding, [17] – [19]

 19   Applicant’s Outline of Submissions, filed 9 August 2017, [18]

 20   PN558 – PN562

 21   Exhibit R4, Agreed Statement of Facts, [11]

 22   Exhibit R5, Witness Statement of Dallas Eastaughffe, [8] (a) – (c)

 23   Exhibit R4, Agreed Statement of Facts, [12] (a) – (d) and Exhibit R5, Witness Statement of Dallas Eastaughffe, [10] –[12]

 24   Exhibit R5, Witness Statement of Dallas Eastaughffe, [12]

 25   PN996

 26   PN1095-1096

 27   Exhibit A3, Witness Statement of Paul Harding, [24]

 28   Exhibit R5, Witness Statement of Dallas Eastaughffe, [14]

 29   Exhibit R4, Agreed Statement of Facts, [12] (e)

 30   Exhibit R4, Agreed Statement of Facts, [12] (f)

 31   Exhibit R4, Agreed Statement of Facts, [15]

 32   PN904

 33   PN1010

 34   Exhibit R4, Agreed Statement of Facts, [13] – [14]

 35   Applicant’s Outline of Submissions, filed 9 August 2017, [20]

 36   Applicant’s Closing Submissions, filed 17 October 2017, [2] (a)]

 37   PN22

 38   PN1821

 39   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [20]

 40   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [21]

 41   PN46

 42   PN1803, Respondent’s Outline of Closing Submissions, filed 7 November 2017, [21]

 43   Applicant’s Closing Submissions, filed 17 October 2017, [50]

 44   PN29

 45   Exhibit A1, Witness Statement of Dr Ken Pidd, [9.2]

 46   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (a)

 47   PN880

 48   PN933 – PN941

 49   PN880

 50   PN882

 51   Applicant’s Closing Submissions, filed 17 October 2017, [68], [71]

 52   Applicant’s Closing Submissions, filed 17 October 2017, [63] and Exhibit R5, Witness Statement of Dallas Eastaughffe, [11]-[15])

 53   Respondent’s Outline of Submissions, filed 31 August 2017, [25] (b)

 54   Exhibit R5, Witness Statement of Dallas Eastaughffe, [11]

 55   Exhibit R4, Agreed Statement of Facts, [12] (c)

 56   Applicant’s Closing Submissions, filed 17 October 2017, [68] – [69]

 57   Exhibit R5, Witness Statement of Dallas Eastaughffe, [5]

 58   Exhibit R4, Agreed Statement of Facts, [12], Exhibit R5, Witness Statement of Dallas Eastaughffe, Attachment A

 59   Applicant’s Closing Submissions, filed 17 October 2017, [70]

 60   Exhibit A1, Witness Statement of Dr Ken Pidd, [9.1]

 61   PN1018 – PN1020

 62   Exhibit R5, Witness Statement of Dallas Eastaughffe, Attachment A

 63   PN947 and PN954

 64   Exhibit A7, HLT Health Services Training Package from Community Services and Health Industry Skills Council, p.56 and PN1050 – PN1051

 65   PN1092, PN1069 – 1070 and PN1024

 66   PN995

 67   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (b)(i)-(ii).

 68  Applicant’s Closing Submissions, filed 17 October 2017, [72], [76] and Exhibit A3, Witness Statement of Paul Harding, Attachment PH9

 69   PN37 – PN41

 70   PN45

 71   PN1017, PN1035

 72   Exhibit R5, Witness Statement of Dallas Eastaughffe, [15] (d), Attachments E, H and PN1016

 73   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (c)

 74   Applicant’s Closing Submissions, filed 17 October 2017, [76]

 75   Applicant’s Closing Submissions, filed 17 October 2017, [80]

 76   Exhibit R6, Certificate of Compliance

 77   Exhibit A3, Witness Statement of Paul Harding, [54]-[55]

 78   Respondent’s Outline of Submissions, filed 31 August 2017, [17] (c) and Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (d)

 79   Respondent’s Outline of Submissions, filed 31 August 2017, [17] (c) and Exhibit A1, Witness Statement of Dr Ken Pidd, [8]

 80   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (d) and PN887 - PN888

 81   Exhibit A3, Witness Statement of Paul Harding, [56]

 82   Exhibit R5, Witness Statement of Dallas Eastaughffe, [19]

 83   PN1110

 84   PN1112 – PN1113

 85   Exhibit R5, Witness Statement of Dallas Eastaughffe, Attachment E

 86   Applicant’s Closing Submissions, filed 17 October 2017, [81] –[82]

 87   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [25] (e)

 88   Exhibit R5, Witness Statement of Dallas Eastaughffe, Attachment E

 89   PN1018 - PN1020

 90   PN1017

 91   Applicant’s Closing Submissions, filed 17 October 2017, [96]

 92   Exhibit R5, Witness Statement of Dallas Eastaughffe, Attachment J

 93   Exhibit A6, DrugCheck, Drug of Abuse Tests Document

 94   Applicant’s Closing Submissions, filed 17 October 2017, [89] and Exhibit A6, DrugCheck, Drug of Abuse Tests Document, p.4

 95   PN1034

 96   PN1116

 97   Exhibit R3, Witness Statement of Victoria McCombe, p.2

 98   PN85

 99   Exhibit A1, Witness Statement of Dr Ken Pidd, [9.2]

 100   PN1687

 101   Exhibit R3, Witness Statement of Victoria McCombe, p.2 and PN889 - PN890, PN893

 102   Applicant’s Closing Submissions, filed 17 October 2017,[90], [96]

 103   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [21],

 104   PN1418

 105   PN1756

 106   Exhibit R3, Witness Statement of Victoria McCombe

 107   PN1671 - PN1672

 108   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [27], Exhibit A3, Witness Statement of Paul Harding, [12] and Exhibit A1, Witness Statement of Dr Ken Pidd, [6.1]

 109   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [10] and PN1440

 110   PN1134

 111   PN444 – PN458

 112   PN461

 113   PN462 – PN466

 114   PN440 – PN442

 115   Exhibit R4, Agreed Statement of Facts, [3]

 116   Applicant’s Outline of Submissions, filed 9 August 2017, [38] and Respondent’s Outline of Submissions, filed 31 August 2017, [22]

 117   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [13] and Respondent’s Outline of Submissions, filed 31 August 2017, [23]

 118   Exhibit R2, Statement of Stacey Dibben, Attachment K and Respondent’s Outline of Submissions, filed 31 August 2017, [7] (a)

 119   Exhibit R2, Statement of Stacey Dibben, Attachment L and Respondent’s Outline of Submissions, filed 31 August 2017, [7] (b)

 120   Exhibit R2, Statement of Stacey Dibben, Attachment M at p.2, p.9, p.10

 121   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [1]

 122   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [13]

 123   PN1536

 124   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [14] – [15]

 125   Exhibit R4, Agreed Statement of Facts, [9]

 126   PN762 – PN764

 127   Exhibit R2, Statement of Stacey Dibben, [39], Attachment P

 128   Exhibit R2, Statement of Stacey Dibben, Attachment Q

 129   Exhibit R2, Statement of Stacey Dibben, [41]

 130   Applicant’s Closing Submissions, filed 17 October 2017, [2] (b) –(c)

 131   PN423 – PN425

 132   PN719

 133   PN720 – PN721

 134   PN748 – PN751

 135   PN754 – PN756

 136   PN350 –351

 137   Applicant’s Outline of Submissions, filed 9 August 2017, [29] and PN352 - PN535

 138   Exhibit R2, Statement of Stacey Dibben, Attachment D, [15]

 139   PN615

 140   Exhibit A2, Witness Statement of Tanya Harding, [5] and PN267 – PN270

 141   PN271 – PN273

 142   PN275

 143   PN523

 144   PN525 – PN532, PN546

 145   Applicant’s Closing Submissions, filed 17 October 2017, [143] – [146]

 146   PN1369 – PN1370

 147   PN1372

 148   [2015] FWCFB 1033

 149   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [7] and [2015] FWCFB 1033, [24]

 150   Exhibit R4, Agreed Statement of Facts, [16] – [17]

 151   Exhibit R4, Agreed Statement of Facts, [18] – [21]

 152   Exhibit R4, Agreed Statement of Facts, [22]

 153   Applicant’s Outline of Submissions, filed 9 August 2017, [57] – [58]

 154   PN1893 - PN1896

 155   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [37]

 156   PN692 – PN709

 157   Exhibit R7, Witness Statement of Justin De Meillon, [17] and PN1143 – PN1144

 158   PN1146

 159   PN764

 160   PN765

 161   PN710 – PN711

 162   PN711

 163   PN840

 164   Applicant’s Outline of Submissions, filed 9 August 2017, [62]

 165   Applicant’s Outline of Submissions, filed 9 August 2017, [66]

 166   Applicant’s Outline of Submissions, filed 9 August 2017, [63], Exhibit A3, Witness Statement of Paul Harding, [14] – [15]

 167   Exhibit R2, Statement of Stacey Dibben, Attachment D, [12], [14]

 168   Applicant’s Outline of Submissions, filed 9 August 2017, [65]

 169   PN382

 170   PN254

 171   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [43]

 172   Applicant’s Closing Submissions, filed 17 October 2017, [206]

 173   PN1900

 174   PN1645

175 Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410

176 Ibid at 465

177 Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21 (4 June 1931), [(1931) 45 CLR 359 at pp. 373, 377‒378

178 King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000) at para. 24

 179   Respondent’s Outline of Submissions, filed 31 August 2017, [5]

 180   Respondent’s Outline of Submissions, filed 31 August 2017, [13]

 181   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [2] (a) – (d)

 182   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [2] (e)

 183   [2015] FWCFB 1033, [24]

 184   [2014] FWCFB 6249

 185   [2014] FWCFB 6249, [27]

 186   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [9] (a) – (c)

 187   Exhibit R4, Agreed Statement of Facts, [3]

 188   PN442

 189   PN443 – PN461

 190   Exhibit A3, Witness Statement of Paul Harding, [17]

 191   Exhibit A3, Witness Statement of Paul Harding, [19]

 192   PN522 – PN532

 193   PN540, PN545

 194   PN549

 195   PN558 – PN560

 196   PN566 - PN568

 197   PN570 – PN573

 198   PN575 – PN576

 199   PN578 – PN581

 200   PN582 – PN587

 201   PN586-PN589

 202   Annetta v Ansett Australia Ltd Print S6824 (AIRCFB, Giudice J, Williams SDP, Cribb C, 7 June 2000) at para. 10, [(2000) 98 IR 233].

203 Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000) at paras 70–73, [(2000) 98 IR 137]

204 Previsic v Australian Quarantine Inspection Services Print Q3730 (AIRC, Holmes C, 6 October 1998)

 205   Applicant’s Outline of Submissions, filed 9 August 2017, [57] – [58]

 206   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [32]

 207   PN1893 - PN1894

 208   Applicant’s Closing Submissions, filed 17 October 2017, [180]

209 [2013] FWCFB 6191

210 [2013] FWCFB 6191[41]

 211   Applicant’s Closing Submissions, filed 17 October 2017, [187]

 212   Exhibit A3, Witness Statement of Paul Harding, [21]

 213   PN593

 214   PN605

 215   PN606

 216   PN594 – PN598

 217   Applicant’s Outline of Submissions, filed 9 August 2017, [65]

 218   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [43]

 219   Applicant’s Closing Submissions, filed 17 October 2017, [206]

 220   PN1900

 221   PN1645

 222   Applicant’s Outline of Submissions, filed 9 August 2017, [66]

 223   Respondent’s Outline of Closing Submissions, filed 7 November 2017, [46]

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