| [2021] FWC 3634 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Marshall Rushton
v
Giacci Bro Pty Ltd
(U2021/164)
DEPUTY PRESIDENT BEAUMONT |
PERTH, 23 JUNE 2021 |
Application for an unfair dismissal remedy.
[1] This decision concerns an application made by Mr Rushton (the Applicant) under s 394 of the Fair Work Act 2009 (Cth) (Act) for an unfair dismissal remedy.
[2] The Applicant, a former employee of Giacci Bro Pty Ltd (the Respondent), worked as a full-time truck driver carting lithium ore from Greenbushes in the South West of Western Australia, to the nearby port of Bunbury. On 17 December 2021, he failed to take his Blood Alcohol Content (BAC) tests prior to shift commencement, and when he eventually performed the tests some two hours later, he failed the initial and subsequent test. When making the decision to dismiss the Applicant, the Respondent relied upon these events and the Applicant’s disciplinary history.
[3] While the Applicant proposed that his BAC test results were impacted upon by the consumption of Anticol lozenges and smoking cigarettes between the initial and subsequent test, and that he had been treated differently to fellow employees, I have nevertheless concluded that the dismissal of the Applicant was not unfair. It follows that his application is dismissed. My reasons for so concluding follow.
[4] The Applicant started working for the Respondent on 2 February 2015. At the time of his dismissal, he was no longer working in his substantive position but was on light duties, having sustained a work related injury in December 2018. 1
[5] The Applicant described his light duties as including shed inspections and supervising. 2 Expanding on his explanation concerning the supervisory role, he said that he supervised ‘Shipping Campaigns’ at the Bunbury Port (Port).3 This work involved supervising the change over from night shift to day shift for a week, breath testing the drivers and attending to other matters that had to be attended to at the Port.4
[6] Mr Versace, the Logistics Supervisor of the Respondent, confirmed that one of the jobs the Applicant had, was working on Shipping Campaigns for Iluka. The Applicant’s job in this respect, was to run the toolbox meetings where the drivers could exchange trucks and equipment. 5
[7] The Applicant gave a brief account of his daily activities when supervising ‘Shipping Campaigns’. Activities included:
a) driving to the Port from his house for a 4.00am start – in his own car;
b) retrieving the bag of straws for the hand-held breathalyser that was used to breath test drivers employed by the Respondent and also subcontractor drivers;
c) supervising the breathalyser tests of the drivers;
d) collecting the paperwork from the drivers regarding the trips they had completed during shift;
e) driving back to the Picton Yard where he would arrive at approximately 6.30am and deliver the breathalyser paperwork;
f) performing his own breathalyser using the wall mounted breathalyser in the donga located near the Transport Office; and
g) thereafter attending to other allocated duties. 6
[8] The Applicant said that when undertaking the role as Port Supervisor, he always performed his breathalyser test on arrival to the Picton Yard. 7 The Applicant noted that he did not perform the breathalyser test at the Port as he considered that the testing process was not that hygienic.8
[9] Mr Versace gave evidence that Port workers are not breath tested before each shift, but transport workers are required to complete a breath test before they start every shift. 9 Mr Versace said that this was understood across the board and well known.10 He referred to the adage of ‘[I]f you don’t below in the bag, you don’t start your shift’.
[10] The Applicant reports that on the morning of 17 December 2020 he awoke with a dry throat. 11 He said that he had not consumed bourbon on the evening of 16 December 2021 and clarified that he did not drink any alcohol that evening.12 Due to his dry throat, the Applicant reports having consumed Anticol lozenges.13 He said that he was taking the lozenges one after the other as it relieved his throat symptoms.14 By the time it came to conduct the breathalyser test, the Applicant said that he had consumed three quarters of the packet (which, said the Applicant, contained ten lozenges).15
[11] When he did the BAC test, the first reading was 0.013. 16 The Applicant said that because he had blown numbers, he immediately went to the Transport Office, where he spoke with Mr Frank Versace.17 Evidence was given that when a positive test result registers on the breathalyser, supervisors are notified of the result by email.18
[12] The Applicant gave evidence of his conversation with Mr Versace. He recalls having been asked by Mr Versace whether there was anything that could have registered a reading on the breathalyser, to which the Applicant said he responded ‘no’. However, the Applicant said that he mentioned to Mr Versace having taken the Anticol lozenges that morning. 19 When asked whether he had drunk anything the previous night, the Applicant said that he informed Mr Versace ‘no’, explaining that he did not drink on Wednesdays. The Applicant was informed that it would be 20 minutes before he could be tested again.
[13] The Applicant said that Mr Versace found him talking to a mate at the Tyre Shed and asked him to do the BAC test again. He did, and the second reading was 0.008. 20 The Applicant said he knew he would be asked to go home at that stage.
[14] Mr Versace’s account differs from the narrative of the Applicant in some important respects. First, Mr Versace reports that the Applicant informed him that he had drunk four bourbons the night before and that the last one had got a bit heavy. Further, the Applicant had informed him that he had gone to bed early enough to sleep it off, and that he had done this previously with no issues. 21 Second, while Mr Versace agrees that the Applicant informed him that he was taking Anticol lozenges, his evidence was that the Applicant said that he didn’t have any more and could not produce the packet.22 The Applicant made no mention in his witness statements about having been asked to produce the Anticol lozenges packet.
[15] The Investigation Witness Statement Form authored by Mr Versace included Mr Versace’s handwritten notes. They read:
I asked Marshall what Lozenges he was using? His reply was Lozengers, [sic] I asked to see packet if they contained anything that may trigger positive result, his reply was (shrug of shoulders). Marshall tell me he had 4 bourbans [sic] Last Night and in bed by 9.00 o’clock.
I asked Marshall why didn’t doe his Breatho at 0400? No reply. I asked Marshall how strong he made his drinks, his reply he may have been heavy handed pouring. 23
2.2 Terms and conditions of employment, and the process for breath testing
[16] Mr Trent Henry, the South West Logistics Manager of the Respondent, gave evidence that the Respondent’s employees are covered by the Giacci Bros Pty Ltd Western Australia Agreement 2018, and that the Respondent had in place the Qube Drug and Alcohol Policy (DAP), which the Respondent’s employees were obliged to comply with. 24 The DAP provided:
The Company maintains that all employees and contractors must attend for work and perform work free from the influence of any potentially performance-impairing drug or alcohol. Qube commitment in this policy will be met by the following activities:
• Setting standards for drug and alcohol use and the permissible levels.
• Enforcing compliance with standards for drug and alcohol ‘cut off’ levels by conducting drug and alcohol tests in accordance with the Drug & Alcohol Procedures, reflecting relevant Australian Standards… 25
[17] Mr Henry said that following his review of safety documentation, he was aware that the Safety Committee had discussed the procedure on how to deal with non-negative breath alcohol tests at a meeting held on 24 August 2016. 26 The minutes of that meeting (SHE Committee Meeting Agenda / Minutes) read that in regard to ‘BAC- Positives’ the procedure was ‘* 1st blow, wait 20 minutes and 2nd blow: If negative – no disciplinary, but recorded If positive – suspended with discipline’. The Committee recorded in the ‘actions’ part of the minutes - ‘Information to all drivers’.27
[18] Tendered into evidence was a one page document titled ‘Conditions of Employment’. The Applicant had signed the document noting his acceptance of the conditions listed. One of the conditions was that the Applicant would be required to provide breath and urine samples for alcohol and drug testing and would be subject to the rules applying to drug and alcohol testing applicable to the workplace at which testing was carried out. 28 Also tendered was a ‘Contract of Employment’ dated 2 February 2015, which set out the Applicant’s obligation to comply with the Respondent’s policies.
[19] The two stage testing regime and the necessity to ‘blow’ zero, appeared to be uncontroversial. Although at a later point in the decision, it will be seen that there was some controversy about the direction to give an employee when in the interval between the two BAC tests.
[20] Mr Henry gave evidence that he had reviewed the Applicant’s HR file and was aware that the Applicant had received other warnings relating to breath testing. 29 Tendered into evidence was Mr Henry’s email to Mr Mulligan, General Manager HSEC & HR, outlining the Applicant’s disciplinary history, in part it read:
- 2/8/2017 – Second written warning for unacceptable behaviour. Threaten to hit a supervisor and failing to report an incident. 30
- 2/11/2018 – Failed two BAC tests (first written Warning) 31
- 27.9.2018 – letter on failing to use the breatho at the commencement of every shift. No action just a confirmation of procedure 32
- 5/6/2020 – Failure to complete pre shift test – refused to sign 33
Additionally to this on his HR file are
- Multiple DSSI events
- Failure to comply with FMC questionnaire following a DSSI event. This was Monday’s discussion with Marshall.
- Smoking in company vehicles 34
- Speeding events - It’s to note that he refuses to sign performance management documentation
[21] Prior to the events of 17 January 2021, the Applicant had, in recent times, been involved in a Driver Safety System Incident (DSSi) event. It was explained that the Respondent had a DSSI system which registered fatigue events when drivers were driving. After investigating the incident, the Applicant’s conduct had not constituted a DSSi event, but a file note was taken because of the Applicant’s response to the Fleet Monitoring Centre (FMC) personnel.
[22] The abovementioned file note detailed that the Applicant said that when contacted by the FMC, the Applicant reported that he could not understand the FMC personnel because of a language barrier and so felt distracted from the task of driving the prime mover. While the incident was found not to be a DSSi event, the Respondent considered that the Applicant’s behaviour (the way in which he spoke to the FMC personnel) did not reflect the correct process regarding adherence to the procedure. The Respondent thereafter outlined for the Applicant what constituted courteous behaviour when communicating with a team member of the FMC and instructed him to behave accordingly in future.
[23] Not long after incident on 17 December 2020, the Applicant was informed that he was to meet with Mr Trent Henry. 35 Present at the meeting on 18 December 2020, were Mr Henry, Mr Glenn Gibson – former Operations Manager and mentor to the incumbent Operations Manager, the Applicant, and his union representative, Mr Clifton.
[24] In short, Mr Gibson recalled the following from the meeting:
Marshall Rushton said that he did not do his breath test at the port because he did not like the idea of using the hand held unit and that as why he waited until he got to the depot. He agreed that his readings were high and said that he had had a couple of drinks after work but that he had gone to bed at 9.00pm. He also mentioned that he had been sucking lozenges. 36
[25] Mr Gibson made a file note about the meeting. Whilst undated, it set out that the meeting took place at ‘0845 am’, 37 and continued:
• TH opened the meeting with a request for Marshall to explain any reasons why he would he did not do a breatho at the port like all of the other drivers.
• MR responded by saying that he did not like the idea of using the hand held after all the other guys had blown an spat and touched the unit before him.
• MR also said that is why he waited until he was at the depot before he blew.
• Trent reminded him that is still no reason for him to blow numbers some 2 hrs later and failed again 20 mins after.
• MR agreed it was high and long lasting but he went to bed at 9.00pm and was up again at 3.00am for a 4.00am start. Also stated he had a couple after work.
• MR also explained that he had been sucking lozenge and it may have been a menthol reading as opposed to alcohol 38
[26] Mr Gibson said that the meeting was quite short and at one point the Applicant and Mr Clifton left the room while Mr Henry and Mr Gibson called Mr Mulligan to discuss the case and seek instruction. Mr Gibson said that after a short chat with Mr Mulligan, Mr Mulligan informed Mr Henry that he could terminate the employment of the Applicant. 39
[27] Mr Clifton gave evidence that when the Applicant was asked how he thought he came up with a positive breath test the previous day, the Applicant responded by noting that he had been taking Anticol lozenges that morning and this may have affected the breathalyser reading. 40 In response to the allegation that the Applicant had not done a breathalyser test at the Port, Mr Clifton said that the Applicant expressed his preference to undertake the test at the depot because he felt the hand-held breathalysers were not very hygienic.41
[28] According to Mr Clifton, the Applicant’s past disciplinary records were also referred to by Mr Henry, who noted the previous warnings issued to the Applicant for breaches of the Respondent’s DAP. 42
[29] Mr Henry said that once he had spoken to Mr Mulligan, he invited the Applicant and Mr Clifton back into the room. 43 Mr Henry said that the Applicant was provided with an opportunity to provide his side of events and was subsequently provided with his termination letter.44 Mr Clifton agreed that the Applicant had had the opportunity to put his case.
[30] Insofar as reasons for dismissal were concerned, the Respondent outlined that the Applicant’s actions had amassed in continual breaches of company policy and procedure, showing that he wilfully engaged in misconduct and on this latest occasion, this was manifested by not testing at the commencement of shift. 45 Detail was provided that there had been previous instances of failed BAC readings and notifications of the requirements to a breath test at the commencement of shift as well as other instances of failing to comply with the Respondent’s policies and procedures.46
[31] The Applicant had raised hygiene concerns regarding the hand-held breathalyser testing facility at the Port throughout the disciplinary process.
[32] Mr Gibson observed that there had previously been Covid-19 concerns about breath testing, 47 and gave the following evidence:
[T]here was a concern that everyone was putting their hand into the straw container, so the Company went away and bought individually wrapped straws. After this, each employee touched their own straw, unwrapped their own straw and then put it in the bin. This eliminated the concern. Most people, before they even unwrapped the straw, went to the point of punching in their identification code with the top of the wrapped straw, so that their hands were not touching the keypad. There was hand sanitiser and hand wipes available at the breath testing station as well.
I was not aware of any concerned [sic] about the hand held breath test. 48
[33] The Applicant acknowledged that he had not raised his hygiene concerns about the Port breathalyser to management. In giving his evidence, Mr Clifton confirmed that when hygiene and test equipment issues had been raised, they had been dealt with pretty quickly by the Respondent.
[34] Mr Clifton said that in the 20 years that he had worked for the Respondent he recalled only one driver being dismissed for having a positive breathalyser reading. 49 Mr Gibson’s evidence was that it was not common for people who had blown over to lose their jobs the first time it happened.50
[35] However, Mr Gibson distinguished the circumstances concerning the Applicant on the basis that the Applicant had received warnings in the past about previous blood alcohol content events, which were saved on his HR file. 51 Mr Gibson said that it was common for someone who blows over to have their employment terminated, if given enough chances to change.52
[36] There is no jurisdictional barrier to this unfair dismissal application being considered and determined by the Commission. It is not in contest, and I am satisfied on the evidence before me, that the Applicant was dismissed, he had made his application in time, 53 he was a person protected from unfair dismissal,54 the Respondent was not a small business employer, and the case was not one of genuine redundancy.55
[37] The conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd; Frew v Australian Airlines Ltd 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. 56
[38] When determining whether an applicant’s dismissal was ‘harsh, unjust or unreasonable’, s 387 of the Act contemplates an overall assessment as to the nature of the dismissal by reference to certain factors. Those factors include:
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.
[39] Therefore, it is convenient to use the various factors of s 387, with reference to the relevant circumstances, to outline my consideration of the matter.
[40] When determining if a dismissal is unfair, the Commission takes into account whether there was a valid reason for dismissal relating to the employee’s capacity or conduct. 57 The reasons considered are the employer’s ‘reason(s)’.58 The Full Bench in B, C, and D v Australia Postal Corporation t/as Australia Post (Australian Postal Corporation) stated:
[34]... In a misconduct case, the Commission is concerned with whether the misconduct in fact occurred, not with whether the employer has reasonable grounds to believe that it occurred (eg. Yew v ACI Glass Packaging Pty Ltd (1996) 71 IR 201, Sherman v Peabody Coal Ltd (1998) 88 IR 408; Australian Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1).
[35] Subject to that, as indicated by Northrop J in Selvachandran, “valid reason” is assessed from the perspective of the employer and by reference to the acts or omissions that constitute the alleged misconduct on which the employer relied, considered in isolation from the broader context in which they occurred. It is the reason of the employer, assessed from the perspective of the employer, that must be a “valid reason” where “valid” has its ordinary meaning of “sound, defensible or well founded”. As Northrop J noted, the requirement for a valid reason “should not impose a severe barrier to the right of an employer to dismiss an employee”.
[36] A failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. In this way, a substantial and wilful breach of a policy will often, if not usually, constitute a “valid reason” for dismissal. 59
[41] In summary, where the reason for termination of employment relates to an employee’s capacity or conduct, it is not the Commission’s function to stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that the Commission would make. It is rather for the Commission to assess whether the employer had a valid reason connected with the employee’s capacity or conduct. 60
[42] An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable. 61 The Full Bench in Briggs v AWH62 stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction. The employer, therefore, is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.63
[43] Having considered the contractual documentation, I am of the view that the Applicant was obliged to comply with the DAP. The DAP set out the lawful and reasonable instruction that employees were to attend work and perform work free from any potentially performance-impairing drug or alcohol influence. Furthermore, the Respondent was entitled to enforce compliance with standards for drug and alcohol ‘cut off levels’ by conducting the relevant tests.
[44] The two stage testing regime and the necessity to ‘blow’ a zero BAC, appeared to be uncontroversial. The Applicant accepted that working within the transport industry necessitated the testing of BAC on each shift. Further, he did not cavil with the cut off level for the BAC being zero. The Applicant was a seasoned driver who was cognisant of the demands of the transport industry in this respect. It was also apparent from the evidence that the performance of light duties did not negate the requirement for the Applicant to self-test and ‘blow’ zero numbers. The Applicant continued, as was expected, to perform the tests on each shift.
[45] The narrative about his failure to perform the BAC tests prior to shift commencement was two pronged. First, he relied upon his usual practice of not testing until arriving at the Picton Yard and having not been cautioned for doing this. Second, his preference was not to test at the Port due to perceived hygiene concerns about the BAC testing equipment. Both arguments are flawed, and I am therefore unpersuaded by them.
[46] While the Applicant may have adopted the practice of performing the BAC test some two hours after shift commencement while working on a Shipping Campaign, the evidence suggests that the Applicant was aware testing was to be undertaken before shift commencement. That appeared to be his usual practice when not on a Shipping Campaign. It was uncontentious that the Applicant had not brought to his supervisor’s attention that he was testing some two hours after commencement when on a Shipping Campaign. A failure on behalf of the Respondent to identify this itself by scrutinising the BAC testing records, does not in turn mean that the Respondent had acceded to the Applicant’s behaviour being acceptable.
[47] The Applicant’s justification for not testing his BAC at the Port arose from his hygiene concerns about the hand-held breathalyser. Yet, he had not raised to management his concerns about the device or its use, despite assuming responsibility for the use of the very same equipment on Shipping Campaigns. It appears somewhat ironic that he was content to facilitate the use of the breathalyser on his colleagues, but not for his own purpose. The evidence of the Applicant’s support person was that the Respondent had adopted a timely response historically when addressing employee concerns about hygiene and BAC testing. This was particularly the case in the midst of a pandemic.
[48] Turning to the test results themselves, the Applicant explained the first non-negative BAC test result on his consumption of Anticol lozenges. Now clearly, the issue as to whether bourbon or Anticol gave rise to the non-negative is contentious.
[49] The Applicant’s evidence was that he had experienced a dry throat on the morning of 17 December 2021 and had therefore consumed Anticol lozenges. He said he was taking the lozenges one after the other as it relieved his throat symptoms. 64 It was the Applicant’s evidence that by the time he came to do the breathalyser, he had consumed three quarters of the packet (which, said the Applicant, contained 10 lozenges).65 However, when asked to produce that packet so that Mr Versace could see whether the ingredients might trigger a positive result, the Applicant was said to have shrugged his shoulders. This evidence was not challenged at hearing. The lozenge package was never produced to Mr Versace, notwithstanding the Applicant having admitted to consuming the Anticol lozenges and having some left in the packet. There appeared to be a paucity of detail as to what had occurred with the remaining lozenges and packet.
[50] It was also Mr Versace’s evidence that the Applicant had informed him that he had consumed four bourbons the previous evening, was in bed by 9.00pm, and may have been heavy handed with pouring. Yet the Applicant says that he never admitted to drinking bourbons the night before to Mr Versace or, for that matter, to Mr Gibson and Mr Henry in the interview on 18 December 2020. When challenged on Mr Versace’s evidence, the file note of which is replicated at paragraph [15] of this decision, the Applicant remarked to the effect that Mr Versace had never written those words out of his mouth – that was for sure. Regarding the evidence about having informed Mr Henry and Mr Gibson that he had had ‘the night before the non-negative tests, the Applicant continued to press that he had not had any conversations about drinking.
[51] In my view, the evidence of Mr Versace was compelling. His account, including the file note adduced, was unpolished. In my assessment, his evidence was spontaneous, candid and convincing, and I considered him to be a witness of truth. If asked as to whose evidence I preferred in this respect, it was that of Mr Versace over that of the Applicant. In my view Mr Versace had not misunderstood the Applicant’s account provided at the meeting, he had simply recorded what he had been told.
[52] Included in Mr Gibson’s notes of the meeting on 18 December 2020, was the purported statement of the Applicant that ‘he had a couple after work’. However, the Applicant and Mr Clifton do not concede that this was said.
[53] While I appreciate that the parties hold different perceptions concerning what was said, on balance, I am of the view that Mr Gibson’s notes accurately reflect a summary of the meeting, as does Mr Gibson’s oral testimony and written witness statement. Mr Gibson was candid about the meeting length admitting that it was ‘quite short’, which aligns with the account of the Applicant, and when asked whether the Applicant was asked to comment about Mr Versace’s statement, or whether Mr Versace’s statement was put to Mr Rushton, Mr Gibson replied ‘not that I am aware of’. Mr Gibson’s evidence was direct and uncomplicated by superlatives. Again, I considered him a witness of truth.
[54] Argument was led by the Applicant that the second BAC test was possibly a ‘bit suspect’ because he had smoked cigarettes during the interval between the first test and second. He observed that he had not been provided with instruction as to what to do or not do in that intervening period. The Respondent contended that the argument was a recent invention having not been ventilated prior to the hearing. The Applicant argued that it was not until Mr Versace’s account was considered further, that the Applicant appreciated that his cigarette smoking may have impacted upon the second test result. The Applicant advanced that there was not a 15 minute interval between the cessation of smoking and the test being taken, which ran contrary to the manufacturer’s guidelines for the breathalyser.
[55] In short, the Applicant appears to have relied upon the consumption of Anticol lozenges for the explanation of the first test result and the smoking of cigarettes for impacting upon the second. The Applicant also referred to having researched factors that may have resulted in his breathalyser reading after he was dismissed. He identified that having gastroesophageal reflux disease (GORD), which the Applicant said he has (medical certificate produced), results in a high concentration of menthol in the mouth due to the reflux of stomach contents.
[56] Based on the evidence before me, I am unable to find cigarette smoking impacted upon the second test result. There is simply insufficient evidence to arrive at such. However, the evidence adduced suggests that the manufacturing guidelines appear not to have been followed insofar as there was no delay in conducting the second BAC test. This is despite the Applicant having been sighted smoking. It appeared uncontroversial that a 15 minute interval was proposed by the breathalyser’s manufacturer in this respect.
[57] This finding does not in any way negate the findings reached however, regarding non-testing prior to shift commencement (an accepted practice) or the first BAC test result. While the Applicant has sought to identify other contributing factors for his non-negative tests, I am unconvinced that those factors gave rise, or contributed, to the first non-negative result. However, I am satisfied, primarily on the Applicant’s failure to test prior to shift commencement, to conclude that there was a valid reason for dismissal. Meaning of course, that the reason was sound, defensible and well founded.
[58] However, I appreciate that the Applicant’s disciplinary history also played a part in his dismissal.
[59] Regarding the written warning received on 5 June 2020 for failure to complete a pre-shift breathalyser test, the Applicant argues that he held health and hygiene concerns about how testing was being carried out and, on that basis, refused to test. However, it is not apparent that the Applicant raised a dispute about the provision of the written warning on this occasion under the applicable enterprise agreement. It therefore remained on his employment record.
[60] Nevertheless, the Applicant’s employment record shows two conduct issues arising under the DAP for breaches in 2018. One resulted in a written warning (two failed BAC tests) and the other confirmation of the testing procedure, after the Applicant had failed to use the breathalyser on the commencement of every shift.
[61] While the conduct occurred some two years prior to the events of 17 December 2020, it shows very clearly that the Respondent had previously provided the Applicant instruction on the use of the breathalyser, and that the Applicant had been provided with a ‘second chance’ having not been dismissed for the two positive BAC tests on that occasion.
[62] In the circumstances, I am persuaded that the Applicant’s employment was terminated for a valid reason. His misconduct was manifestly serious and in clear breach of the lawful and reasonable instructions that had been provided to him regarding BAC testing.
3.3 Notification of the reason and an opportunity to respond
[63] At a general level, the case law makes it plain that when it comes to providing an opportunity to respond, the process does not require any degree of formality. The requirement is to be applied in a practical way to ensure that the employee is treated fairly. 66 The Full Bench in Royal Melbourne Institute of Technology v Asher67 adopted the remarks of Wilcox CJ in Gibson v Bosmac Pty Ltd68 (approved in Selvachandran v Peteron Plastics Pty Ltd69), where the Chief Justice said:
[O]rdinarily, before being dismissed for reasons related to conduct or performance, an employee must be made aware of the particular matters that are putting his or her job at risk and given an adequate opportunity of defence. However, I also pointed out that the section does not require any particular formality. It is intended to be applied in a practical commonsense way so as to ensure that the affected employee is treated fairly. Where the employee is aware of the precise nature of the employer’s concern about his or her conduct or performance and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the section.
[64] The Applicant contended he had been denied procedural fairness on the basis that he had not received a real opportunity to respond to the allegations. It was observed that the ‘show cause’ meeting had been extremely short. However, as noted by Mr Clifton, the Applicant had been provided with the opportunity to respond to the matters that were putting his job at risk. The brevity of the meeting in and of itself does not suggest otherwise.
[65] Insofar as it is relevant to this factor under consideration, the evidence of Mr Henry, Mr Mulligan and Mr Gibson does not in any way suggest that the decision to terminate the Applicant’s employment had been made prior to the meeting on 18 December 2020, or before the Applicant had the opportunity to respond to the factors that were placing his employment at risk.
[66] I therefore conclude that the Applicant understood the precise nature of the Respondent’s allegations, he was notified of a valid reason for his dismissal before any action was taken to terminate his employment, 70 and he was accorded the opportunity to respond.
[67] The Applicant was not denied the presence of a support person. I am, therefore, content to conclude that the factor is not relevant in the circumstances of this particular matter.
[68] As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing the Applicant. It follows that this factor is not relevant to the assessment required.
[69] In the circumstances, I consider this a neutral factor. Albeit I would agree with the Respondent’s contention that it carried out the dismissal process in a procedurally fair manner.
[70] The Applicant advanced he had been treated inconsistently when compared to employees who had non-negative BAC test results. On this point, he argues that other employees who have recorded non-negative BAC test results remain employed. However, the Respondent’s position is that it does issue warnings when employees return their first or second non-negative BAC test result, and that subsequent non-negative BAC test results can, and do, lead to the termination of employment.
[71] Mr Gibson conceded that it was not common for employees who ‘blow over’ to lose their jobs the first time it happens. But he said it was common for someone who blows over to have their employment terminated if they had been given enough chances to change and had not. 71
[72] While the Applicant referred to several employees who had received multiple warnings for various matters, including ‘blowing numbers’, the evidence was by way of assertion only, and in all of the circumstances, I am understandably uncomfortable about relying upon it. In truth, to say that I was engaging in a comparison of ‘apples against apples’, an adage derived from the Full Bench decision in Darvell v Australian Postal Corporation, 72 when arriving at any finding, would be at best misleading. The evidence adduced simply does not allow for such an exercise, or for a statement to be made that I am comparing like for like cases. Although differential treatment of employees can render a termination of employment harsh, unjust or unreasonable, I am unable to arrive at this conclusion for the reasons cited.
[73] Amongst other considerations, it is necessary to consider the impact the dismissal had on the Applicant, given the circumstances. This includes consideration as to whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct found by the Commission. 73 I do not consider that the Applicant’s dismissal was disproportionate when one considers his repeated non-compliance with the Respondent’s lawful and reasonable instructions regarding BAC testing.
[74] Further, a dismissal may, depending upon the overall circumstances, be considered harsh due to the economic and personal consequences resulting from being dismissed. 74 I have considered the Applicant’s length of service, work related injury and age. I observe that it was uncontentious that the Respondent had complied with its obligations regarding the relevant workers’ compensation legislation. Understandably it may be difficult for the Applicant to find work notwithstanding the submissions of the Respondent regarding the current economic climate. I don’t doubt that the financial and emotional impact of the Respondent’s decision to dismiss the Applicant has been significant.
[75] The decision to dismiss the Applicant was a serious sanction that would inevitably impact upon his life, but it was not unjust or unfair, and it was not harsh. The Applicant understood what was required of him regarding his conduct, particularly in respect of the DAP. It was not the first time he had fallen foul of his obligations regarding BAC testing, and his disciplinary record was not unblemished. While I have empathy for the Applicant's position, ultimately he has been treated fairly, and his personal circumstances do not vitiate the conclusion reached.
[76] Having taken into account each of the matters specified in s 387, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his conduct. I find that the Applicant’s dismissal was not ‘harsh, unjust or unreasonable’, within the meaning of s 387 of the Act. It follows that the Applicant’s dismissal was not unfair. Accordingly, I am obliged to dismiss the application and an Order 75 to that effect is being issued in conjunction with this decision.
DEPUTY PRESIDENT
Appearances:
Mr Adam Dzieciol, for the Applicant.
Ms Rochelle Airey, for the Respondent.
Hearing details:
2021.
Perth, by video via Microsoft Teams:
June 9.
Printed by authority of the Commonwealth Government Printer
<PR731003>
1 Witness Statement of Marshall Gray Rushton (Rushton Statement)
2 Rushton [4].
3 Ibid.
4 Ibid.
5 Witness Statement of Frank Versace (Versace Statement) [8].
6 Rushton [5].
7 Rushton [7].
8 Rushton [8].
9 Rushton [10].
10 Ibid.
11 Rushton [9].
12 Rushton [9], [10].
13 Rushton [12].
14 Ibid.
15 Ibid.
16 Rushton [14].
17 Ibid.
18 Rushton [17].
19 Rushton [15].
20 Rushton [16].
21 Versace Statement [19].
22 Versace Statement [21].
23 Versace Statement Annexure TH-11.
24 Witness Statement of Trent Henry (Henry Statement) [12].
25 Henry Statement Annexure TH-8.
26 Henry Statement [13].
27 Henry Statement Annexure TH-9.
28 Henry Statement Annexure TH-1.
29 Henry Statement [49].
30 Henry Statement Annexure TH-11 (Second Written Warning 2 August 2017)
31 Henry Statement Annexure TH-11 (First Written Warning 2 November 2018).
32 Henry Statement Annexure TH-11 (No disciplinary action 27 September 2018).
33 Henry Statement Annexure TH-11 (Written Warning – Failure to complete pre-work BAC).
34 Henry Statement Annexure TH-11 (Second Written Warning 2 August 2017 refers to written warning 7 May 2015 Smoking in company vehicle)
35 Henry Statement [26].
36 Witness Statement of Glenn Gibson (Gibson Statement) [22].
37 Gibson Statement Annexure GG-1.
38 Ibid.
39 Gibson Statement [25].
40 Witness Statement of Ronald Clifton (Clifton Statement) [5].
41 Ibid.
42 Ibid.
43 Henry Statement [46].
44 Henry Statement [50].
45 Henry Statement Annexure TH13.
46 Ibid.
47 Gibson Statement [33].
48 Ibid.
49 Clifton Statement [9].
50 Gibson Statement [27].
51 Ibid.
52 Ibid.
53 Fair Work Act 2009 (Cth) s 394(2).
54 Fair Work Act 2009 (Cth) s 382.
55 Fair Work Act 2009 (Cth) s 385(d).
56 (1995) 185 CLR 411, 463.
57 Fair Work Act 2009 (Cth) s 387(a).
58 Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 (‘BCS’), [25], affirming B, C and D v Australia Postal Corporation t/as Australia Post [2013] FWCFB 6191, [34].
60 Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.
61 R v Darling Island Stevedore & Lighterage (1938) 60 CLR 601, 621-2.
62 [2013] FWCFB 3316, [8].
63 Ibid.
64 Rushton [12].
65 Ibid.
66 Royal Melbourne Institute of Technology v Asher [2010] FWAFB 1200, [26].
67 Ibid.
68 (1995) 60 IR 1.
69 (1995) 61 IR 371.
70 Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.
71 Gibson Statement [27].
73 Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1 14, citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 465.
74 Ibid.