[2020] FWC 3151
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009

s.394—Unfair dismissal

Peter Nedelkovski
v
Tasmanian Freight Services Pty Ltd t/a Tasfreight
(U2020/456)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 16 JUNE 2020

Application for an unfair dismissal remedy – failure to submit a urine sample for drug and alcohol testing – company policy – whether driver refused or was unable to provide sample – valid reason – dismissal not unfair

[1] This decision concerns an application made by Mr Peter Nedelkovski under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy. From 1 March 2016 until his dismissal on 8 January 2020, Mr Nedelkovski was employed by Tasmanian Freight Services Pty Ltd, which trades as Tasfreight, as a local driver of a heavy rigid vehicle. Mr Nedelkovski was summarily dismissed for refusing to submit a urine sample for a drug and alcohol test.

[2] Mr Nedelkovski contends that the company did not have a good reason to request him to produce a urine sample. He says that he did not refuse to submit a sample but was simply unable to provide one, and that he would happily have provided one the following day. Mr Nedelkovski says that the company did not have a valid reason to dismiss him and that his dismissal was harsh, unjust or unreasonable and therefore unfair. He seeks reinstatement or compensation.

[3] The company contends that it had a legitimate concern, based on Mr Nedelkovski’s erratic behaviour, that he was affected by drugs or alcohol while driving a truck, and that, contrary to company policy, Mr Nedelkovski refused to produce a urine sample over a period of many hours. The company says that it had a valid reason to dismiss Mr Nedelkovski and that his dismissal was not unfair.

[4] Section 396 of the Act requires that I decide four matters before considering the merits of Mr Nedelkovski’s application. There is no dispute, and I am satisfied, of the following matters. First, Mr Nedelkovski’s application was made within the 21-day period required by s 394(2). Secondly, Mr Nedelkovski was a person protected from unfair dismissal, as he earned less than the high income threshold, and had completed a period of employment with the company that was at least the minimum employment period (s 382). Thirdly, the dismissal was not a case of genuine redundancy. Fourthly, the company is not a small business, and therefore no question of compliance with the Small Business Fair Dismissal Code arises.

Factual background

[5] Tasfreight monitors the location of its truck drivers by GPS. Mr Greg Flynn, the company’s Victorian compliance manager, gave evidence that on 8 January 2020, he was approached by Mr Nedelkovski’s immediate supervisor, Mr Nick Hudson, who said that Mr Nedelkovski was in the wrong location. Mr Flynn told Mr Hudson to call Mr Nedelkovski and ask him why this was. Shortly afterwards, Mr Hudson reported back to Mr Flynn that Mr Nedelkovski had said: ‘I don’t know how I got here I must have zoned out’. Mr Nedelkovski’s evidence was that he recalled speaking to Mr Hudson on 8 January 2020, and that he may or may not have told Mr Hudson that he had zoned out, but if he did say this, it was only a joke. Mr Nedelkovski’s evidence was that he had in fact simply lost his way after his GPS had sent him on a different route.

[6] Mr Flynn was concerned about Mr Nedelkovski’s fitness to drive a heavy vehicle and told Mr Hudson to have Mr Nedelkovski pull over and wait to be picked up. Mr Hudson replied that Mr Nedelkovski was now only three doors down from the depot. Ahead of Mr Nedelkovski’s arrival at the depot, Mr Flynn booked an appointment for him to undergo a drug and alcohol test that afternoon.

[7] When Mr Nedelkovski got to the depot, Mr Flynn told him that the company required him to undergo a drug and alcohol test. Mr Flynn said that he would drive Mr Nedelkovski to the appointment. According to Mr Flynn, Mr Nedelkovski became agitated and refused to get out of his truck. For several minutes he banged the steering wheel and said: ‘You’ve got to be fucking joking’. Mr Nedelkovski agreed in his evidence that he was very angry at this time. He did not dispute banging the steering wheel and swearing. Eventually, Mr Nedelkovski agreed to go with Mr Flynn to the medical clinic for the drug and alcohol test, but when he got into Mr Flynn’s car, he refused to put on his seat belt and said: ‘You’re not a cop, where’s your badge?’ Mr Flynn told Mr Nedelkovski that Victorian law required him to wear a seatbelt. Mr Nedelkovski then fastened his seatbelt. Mr Flynn said that Mr Nedelkovski’s behaviour heightened his concern about Mr Nedelkovski’s fitness to drive.

[8] Mr Flynn gave evidence that when he and Mr Nedelkovski arrived at the clinic, they went to the reception and were told that the drug and alcohol test would require a urine sample. Mr Flynn said that, because Mr Nedelkovski was standing nearby, he believed Mr Nedelkovski heard what the receptionist said. Mr Nedelkovski denies this. Shortly afterwards, but before seeing the doctor, Mr Nedelkovski went to the toilet. When Mr Nedelkovski was called in to see the doctor, he said that he was unable to provide a urine sample. Mr Flynn was then also called in to see the doctor, who explained that Mr Nedelkovski could not urinate. The doctor asked Mr Flynn whether the company required a sample that day or whether one could be provided the following day. Mr Flynn replied that the company wanted a sample to be provided that day. Mr Nedelkovski maintained that he could not provide one.

[9] Mr Flynn and Mr Nedelkovski remained at the clinic until around 5.00 pm. Mr Flynn maintained that Mr Nedelkovski needed to provide a sample. Mr Nedelkovski maintained that he was unable to do so. At one point Mr Flynn brought Mr Nedelkovski a cup of water, but Mr Nedelkovski did not drink it. In his evidence, Mr Nedelkovski said that he did not know what was in the cup. Mr Nedelkovski also said that during the period he spent at the clinic, he bought a soft drink from a convenience store, but still he could not provide a urine sample.

[10] After nearly three hours had passed without Mr Nedelkovski providing a sample, Mr Flynn contacted the general manager, Mr Perry Gibson, to explain the situation. As instructed by Mr Gibson, Mr Flynn then told Mr Nedelkovski that if he did not provide a urine sample his employment would be terminated. Mr Flynn told Mr Nedelkovski that under the company’s drug and alcohol policy, failing to produce a sample for testing is treated as a ‘not negative’ result. Still Mr Nedelkovski did not provide a sample. Mr Flynn then drove Mr Nedelkovski back to the depot. On the way, Mr Flynn twice more asked Mr Nedelkovski whether he would produce a sample and Mr Nedelkovski said that he was not able to do so. Upon arrival at the depot, Mr Flynn told Mr Nedelkovski that his employment was terminated. Mr Flynn then wrote a termination letter and provided it to Mr Nedelkovski.

[11] Mr Gibson gave evidence that all new employees are instructed about the company’s drug and alcohol policy upon commencement and are provided with a copy of it. Mr Nedelkovski did not dispute this.

[12] The company’s drug and alcohol policy was submitted to the Commission. It states that it is a condition of employment that employees register a zero level of alcohol and drugs, and that if an employee is found breaching the company’s zero tolerance policy, they will be subject to disciplinary action, and this may include dismissal. The policy states that, at the discretion of senior management, random drug and alcohol testing may occur at any time. It also states that an employee who is ‘reasonably suspected of being under the influence of alcohol or drugs may be tested’ and that testing may occur where ‘an employee’s behaviour or conduct raises concerns in respect to possible alcohol or drug misuse.’ The policy states that, if an employee refuses to undertake a test as requested by the company, the employee will be notified that the refusal will be treated as a ‘not negative’ result and regarded as a disciplinary matter. The policy also states that refusal to take a test when requested to do so may result in termination of employment.

Findings

[13] I find that the company had a reasonable basis to have a concern that Mr Nedelkovski was under the influence of drugs or alcohol and therefore not fit to be driving a truck. I find that the company acted in accordance with its policy by requiring Mr Nedelkovski to undergo a drug and alcohol test. I also find that Mr Nedelkovski was aware of the policy and that he unreasonably failed to provide a urine sample for the purpose of the test.

[14] I find it implausible that Mr Nedelkovski was unable to provide a urine sample over a three-hour period. I find that, in any event, Mr Nedelkovski did not take all reasonable measures to enable himself to provide a sample. He did not drink the water provided to him by Mr Flynn. I do not accept Mr Nedelkovski’s explanation that he did not drink it because he did not know what was in it. If he did not want to drink from the cup Mr Flynn gave him, Mr Nedelkovski could have fetched his own cup of water, or better yet, multiple cups of water. I accept Mr Nedelkovski’s evidence that he bought a can of soft drink. I accept that he drank it. But if one can of drink was not enough to enable Mr Nedelkovski to provide a urine sample, why did he not buy more? Mr Nedelkovski said in his evidence that he was too angry and upset to provide a sample. But this does not make sense. On Mr Nedelkovski’s own evidence, he did go to the toilet upon arriving at the medical clinic.

[15] Mr Nedelkovski did not ask for more time to provide a urine sample on the day. He wanted to come back the following day to provide a sample. Contrary to the submission of Mr Nedelkovski, it was not the doctor’s advice or recommendation that he do this, it was simply an option that the clinic provided to the company, which Mr Flynn declined. If Mr Nedelkovski had really been having trouble producing a sample, he would have had more to drink. There is no suggestion, and certainly no evidence, of Mr Nedelkovski suffering from a medical condition that affects his ability to urinate. Mr Gibson said in his evidence that he reached the conclusion that, if Mr Nedelkovski was not able to provide a sample after three hours, he simply did not want to provide one. I draw the same conclusion.

[16] After three hours, in the car on the way back to the depot, Mr Flynn told Mr Nedelkovski that it was not too late to provide a sample. Mr Nedelkovski did not ask for more time. He did not ask for more drinks. He said he could not provide a sample. I do not accept this. I find that he refused to undergo a drug and alcohol test by providing a urine sample. In any event, even if Mr Nedelkovski had not been able to provide a sample after three hours, he clearly did not make reasonable efforts to fix the problem. He did not have enough to drink.

[17] For a dismissal to be unfair, the Commission must be satisfied that it was harsh, unjust or unreasonable. In considering whether it is so satisfied, the Commission must take into account the matters specified in s 387. I will address each of these matters in turn below.

Was there a valid reason for dismissal (s 387(a))?

[18] The Act directs consideration of whether there was a valid reason for the dismissal related to the person’s capacity or conduct. A valid reason is one that is sound, defensible and well-founded. The question the Commission must address is whether there was a valid reason, in the sense both that it was a good or sufficient reason, and a substantiated reason.

[19] In cases relating to alleged misconduct, the Commission must make a finding on the evidence provided as to whether, on the balance of probabilities, the conduct occurred. Where allegations of misconduct are made, the standard of proof in relation to whether the alleged conduct occurred is the balance of probabilities.

[20] Based on my factual findings, of which I am comfortably satisfied on the balance of probabilities, I consider that the company clearly had a valid reason to dismiss Mr Nedelkovski. He unreasonably failed to provide a urine sample for a drug and alcohol test. The policy authorised the company to require employees to submit to drug and alcohol tests in cases where it had concerns in respect to possible alcohol or drug misuse. On the evidence, Mr Flynn plainly had a reasonable basis to have a concern that Mr Nedelkovski might have used drugs or alcohol. This was based initially on the fact that Mr Nedelkovski was not driving where he ought to have been and the comment he made to Mr Hudson. It was then further based on Mr Nedelkovski’s erratic behaviour when he returned to the depot. The company had a reasonable policy, which it reasonably implemented. Mr Nedelkovski unreasonably failed to cooperate. The company had a sound, defensible and well-founded reason to dismiss Mr Nedelkovski.

Notification of the reason for dismissal, opportunity to respond (s 387(b) and (c))

[21] In considering whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account whether an employee has been notified of the reason and afforded an opportunity to respond to any reason related to conduct or performance. In order to tell against a finding that the dismissal was unfair, notification of the reason for dismissal should occur before the decision to dismiss is made. The question of whether an employee had an opportunity to respond to reasons relating to conduct or performance should be understood in a common sense way; the focus of the consideration is whether the employee is treated fairly, rather than on any formality.

[22] Mr Nedelkovski was informed of the reason for dismissal. He was told that his employment would be terminated if he did not submit a urine sample. The policy said this. Mr Flynn told him this. Mr Nedelkovski also had an opportunity to respond to the reason for dismissal in the course of his discussions with Mr Flynn. His response was that he could not produce a sample. Mr Flynn did not accept this response. Neither do I.

Support person at meetings (s 387(d))

[23] The Commission must take into account any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal. The discussions relating to dismissal occurred between Mr Nedelkovski and Mr Flynn. Mr Nedelkovski did not ask to have a support person present at such discussions. There was no refusal by the company to allow Mr Nedelkovski to have a support person present.

Warning about unsatisfactory performance (s 387(e))

[24] If a dismissal relates to unsatisfactory performance, s 387(e) requires the Commission to consider whether the person has been warned about the unsatisfactory performance prior to dismissal. This particular consideration is not relevant in the present matter, as the dismissal related to conduct, not performance.

Size of the enterprise, dedicated human resources (section 387(f) and (g))

[25] The Commission is required to consider the degree to which the size of the employer’s enterprise, and the degree to which the absence of dedicated human resources specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal. In my view, these considerations do not carry weight in the analysis of whether the dismissal in the present matter was unfair.

Any other matters the Commission considers relevant (s 387(h))

[26] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission is to take into account any other matters that it considers relevant. The proportionality of the dismissal to the conduct that is the subject of a valid reason is a matter to be considered in connection with s 387(h).

[27] The conduct that I have found Mr Nedelkovski to have engaged in was of sufficient gravity to warrant his dismissal. I have considered whether the summary dismissal of Mr Nedelkovski, without the provision of the three weeks’ notice of termination of employment to which he would otherwise have been entitled, was a proportionate response. I consider that it was. The conduct in my view constituted serious misconduct. Plainly, the maintenance of occupational health and safety standards in a safety-critical industry such as heavy road transport is of the greatest importance. The company’s policies, and their fair and proper enforcement, serve to safeguard the workplace and the public alike. It is a grave matter to refuse to undergo a drug and alcohol test that is reasonably prescribed by company policy, and reasonably required in the circumstances.

[28] For the purposes of my consideration of s 387, I consider that the company’s summary dismissal of Mr Nedelkovski was not disproportionate to the conduct in question.

[29] I take into account Mr Nedelkovski’s submission that he enjoyed his job and that he had performed well. The company did not dispute this. I note Mr Nedelkovski’s evidence that he had never done anything bad, and that he does not drink or use drugs. However, I also take into account that Mr Nedelkovski does not acknowledge that he did the wrong thing on 8 January 2020 by not providing a urine sample.

Conclusion

[30] Taking into account all of the circumstances and the considerations in s 387, I consider that the dismissal of Mr Nedelkovski was not harsh, unjust or unreasonable and that accordingly his dismissal was not unfair. Mr Nedelkovski’s application for an unfair dismissal remedy is therefore dismissed.


DEPUTY PRESIDENT

Appearances:

P. Nedelkovski for himself
P. Gibson
and G. Flynn for Tasmanian Freight Services Pty Ltd

Hearing details:

2020
Melbourne (by telephone)
5 June

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