DECISION

Fair Work Act 2009
s.394 – Application for unfair dismissal remedy

Luke Masters
v
Wilmar Sugar Pty Ltd T/A Wilmar Sugar
(U2021/5727)

Application for relief from unfair dismissal - employee dismissed for returning a positive drug test result - breach of employer’s procedure - whether harsh, unjust or unreasonable - application dismissed.

[1] On 30 June 2021, Mr Luke Masters (Applicant) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) for a remedy, alleging that he had been unfairly dismissed from his employment with Wilmar Sugar Pty Ltd T/A Wilmar Sugar (Respondent). The Applicant seeks compensation.

When can the Commission order a remedy for unfair dismissal?

[2] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

(b) the Applicant has been unfairly dismissed.

[3] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed and, if I am satisfied that the Applicant was so protected, whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

[4] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(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.

When has a person been unfairly dismissed?

[5] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission 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.

Background

[6] The Applicant commenced employment with the Respondent in early 2019 as an IT Project Manager on a full-time basis.

[7] On 29 April 2021, Mr Rob Thompson, General Manager IT, (Mr Thompson) and Ms Alice Munro, Group HR Manager, (Ms Munro) of the Respondent met with the Applicant and advised him that allegations had been raised by two employees on 27 April 2021 in relation to his behaviour. On 29 April 2021, the Applicant was stood down by the Respondent pending an investigation into the allegations.

[8] The Applicant was advised that a meeting would be held on 3 May 2021. The Applicant sent a text message to Mr Thompson advising that he would not be attending the meeting. The meeting was rescheduled to 4 May 2021.

[9] On 4 May 2021, the Applicant attended the meeting with Mr Thompson and Ms Munro during which the allegations were presented to him. The allegations are set out in a letter to the Applicant dated 4 May 2021 as follows:

“1. It is alleged on Tuesday, 27 April 2021 at approximately 2:15pm you were observed displaying the following behaviours at Head Office:

•  Slurring your speech

•  Swaying

•  Closing your eyes for long periods of time while talking

•  Speaking repetitively e.g. asking the same question 3 times in a matter or minutes without seeming to realise you had already asked the question previously.

2. It is alleged on Tuesday, 27 April 2021 you were under the influence of drugs and/or alcohol whilst at work.”

[10] On 9 or 10 May 2021, the Applicant responded in writing to the allegations. In this response, the Applicant raised concerns in relation to workload pressures and lack of management support, stated that the allegations were unproven and suggested that management did not take into account his personal circumstances. The Applicant was not requested to, and did not, undergo a drug and alcohol test at this time. On 12 May 2021, Mr Thompson and Ms Munro met with the Applicant to advise that they had considered the response and that they had determined there was insufficient evidence to take disciplinary action. It was agreed that the Applicant would return to work on 17 May 2021.

[11] Between 17 May 2021 and 21 May 2021, the Applicant was off work on personal leave, providing the reason that he had tripped over his cat and broken his ribs.

[12] On 25 May 2021, the Applicant returned to work. Upon the Applicant’s return, the Respondent instructed the Applicant to undergo a drug and alcohol test. The testing was undertaken by an external provider, ‘The Drug Detection Agency’ (TDDA). The first and second oral saliva tests returned a non-negative reading in relation to cannabinoids and opiates. As a result of the two non-negative results, a urine test was administered and sent to a laboratory for confirmatory testing. The urine test returned a positive result in relation to cannabinoids and opiates. The confirmatory test result indicated a reading of 967 ug/L in relation to cannabinoids, over 19 times higher than the cut off level prescribed by the Respondent’s ‘Fit for Duty Procedure’.

[13] On 2 June 2021, the Applicant met with Mr Thompson and Ms Munro. The Applicant was advised that the Respondent was considering terminating the Applicant’s employment and he was requested to ‘show cause’ as to why his employment should not be terminated.

[14] On 3 June 2021, the Applicant provided a response to the show cause letter. In his response, the Applicant attributed the detection of opioids to his use of painkillers and medication for broken ribs. The Applicant claimed the cannabinoids result was not explainable and came as a shock to him at the time of learning of the result but that he subsequently found out that he had unknowingly consumed cannabis in the form of cookies on 23 and 24 May 2021, prior to taking the test on 25 May 2021.

[15] On 15 June 2021, the Applicant was dismissed from his employment by the Respondent. The Respondent’s letter of 15 June 2021 (Termination Letter) stated:

“Decision to terminate your employment

We have carefully considered your response along with the results and the report from the medical review officer and on the balance of probability, the company considers that you have engaged in serious misconduct and have failed to meet the Fit for Duties requirements.

As a result, Wilmar Sugar has determined it is appropriate to terminate your employment effective today, 15 June 2021. You will be paid the following entitlements; wages owing, notice period and all accrued statutory entitlements up to and including today’s date. I confirm that you will not be required to work out your notice period.”

The ‘Fit for Duty Procedure’

[16] Throughout the course of this matter, reference has been made by the parties to a ‘Fit for Duty’ document, referred to interchangeably as a ‘requirement’, ‘policy’ or ‘procedure’. This document was filed with the Respondent’s materials and will be referred to as the ‘Fit for Duty Procedure’ in this decision.

[17] The Fit for Duty Procedure is referenced in the employment agreement between the Respondent and Applicant, filed by the Respondent (Employment Agreement). In particular, the Employment Agreement states as follows:

“Policies Standards and Procedures:

Wilmar Sugar has a number of policies, standards and procedures, which are varied from time to time. They apply to your employment and you are required to familiarise yourself, understand and comply with them but they do not form part of your contract of employment.

To the extent that the policies describe benefits and entitlements, these are discretionary in nature and are not intended to be contractual. The terms and conditions of your employment that are intended to be contractual are set out in this Agreement.

In particular, I draw your attention to the following:

Alcohol and Other Drugs

At Wilmar Sugar employees are required to comply with the Fit for Duty (FFD) procedure. FFD describes the physical or mental condition of a person whereby the person can be reasonably expected to undertake a task without incurring unacceptable risks to the health and safety of that person or others affected by that person’s activities.”

[18] The Fit for Duty Procedure provides that the methods of applying alcohol and drug testing may include any or all of the following options:

● self-testing;

● reasonable cause testing;

● random testing; and

● management plan testing.

[19] In the case of reasonable cause testing, the Fit for Duty Procedure provides that:

“testing may be carried out where a worker’s behaviour raises concern regarding their fitness for duty. Events that may give rise to a “Reasonable Cause Test” may include, but are not limited to, any one or a combination of the following:

● Erratic, abnormal or unusual behaviour

● Near hits or incidents where safety is compromised

● Observations of deteriorating work performance

● Behaviour, appearance or odour that in the Manager’s/Supervisor’s opinion, warrants assessing.”

[20] The Fit for Duty Procedure sets out cut-off levels for particular types of drugs which will be used in determining whether a test is negative or non-negative, or in the case of a Laboratory Confirmatory Test, negative or positive. Figure 6 of the Fit for Duty Procedure provides that worker who fails a drug test may be subject to disciplinary action.

[21] In the event of a confirmatory positive drug test, the Fit for Duty Procedure provides:

“If the worker wishes to contest the confirmatory test result, the worker can elect to have duplicate sample tested at the same or an alternative NATA accredited laboratory at their expense. If an alternative NATA accredited laboratory is selected, the worker must also pay for the cost of transporting the sample. If the duplicate sample is negative, the worker will be reimbursed for the testing costs and may return to work with no loss of pay or disciplinary action. If the result is confirmed positive, the worker will be stood down. An employee in this position may access personal leave entitlements or leave without pay is to apply”.

[22] The Fit for Duty Procedure provides “guidelines’ for disciplinary action. In particular, it provides that an employee may be subject to disciplinary action or termination due to a breach of the Fit for Duty Procedure and that each breach will be reviewed on a case by case basis.

The Determinative Conference

[23] By way of summary, in his Application, the Applicant submitted: 1

•  “There was no valid reason for the dismissal as the Applicant was not under the influence at the time the tests were conducted”.

•  The “Applicant was not under the influence of cannabinoids and the Respondent had no evidence of impairment or intoxication. The drug test detected residual trace elements of something which the Applicant unintentionally consumed”.

•  “The dismissal was “devoid of procedural fairness” and the decision to dismiss the Applicant “implies premeditation on the Respondent’s behalf”.

•  “The Applicant had no prior warnings for performance or conduct reasons”.

•  “The dismissal was harsh, unjust and unreasonable”.

[24] By way of summary, in its response to the Application, the Respondent submitted: 2

•  “In summary, the Applicant was dismissed because the Fit for Duties requirements obliged him to have 50 ug/L or less of cannabis metabolite where his results indicated a reading of 967 ug/L. The Applicant’s explanation for the high reading was not supported by the medical evidence nor the high reading for opiates. As a result, the Respondent terminated the Applicant’s employment due to the breach of the Fit for Duties requirements which do not focus on the perceived impairment of the individual, but on levels that are acceptable to the business.”

•  That “the explanation the Applicant provided for the Cannabis results are not consistent with the Drug and Alcohol results”.

•  That it “completely disagrees that the dismissal was void of procedural fairness”. It also “disagrees that the decision to terminate the Applicant was premeditated”.

•  That “in December 2020, the Applicant received a ‘Developing/Needs Improvement’ performance rating. Following this, the Applicant was placed on a ‘Coaching Plan’ in February 2021 to address performance and absenteeism concerns and was advised that failure to meet the expectations in the Coaching Plan could result in disciplinary action”.

[25] There being contested facts involved, the Commission is obliged by s.397 of the FW Act to conduct a conference or hold a hearing.

[26] After taking into account the views of the Applicant and the Respondent and whether a hearing would be the most effective and efficient way to resolve the matter, I considered it appropriate to hold a determinative conference for the matter, in accordance with s.399 of the FW Act. A determinative conference was held on 1 September 2021 (Determinative Conference).

Permission to appear

[27] Both the Applicant and the Respondent sought to be represented before the Commission by a lawyer or paid agent.

[28] Relevantly, s.596(1) of the FW Act provides that a party may be represented in a matter before the Commission by a lawyer or paid agent only with the permission of the Commission.

[29] Section 596(2) provides that the Commission may grant permission for a person to be represented by a lawyer or paid agent in a matter before the Commission only if:

(a) it would enable the matter to be deal with more efficiently, taking into account the complexity of the matter; or

(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or

(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.

[30] The decision to grant permission is not merely a procedural step but one which requires consideration in accordance with s.596 of the FW Act. 3 The decision to grant permission is a two-step process. First, it must be determined if one of the requirements in s.596(2) has been met. Secondly, if the requirement has been met, it is a discretionary decision as to whether permission is granted.4

[31] On the question of representation, the Applicant submitted that permission to be represented by a lawyer or paid agent should be granted pursuant to:

•  s.596(2)(a), giving consideration to “efficiency in the matter” as the Applicant had not previously been involved in an unfair dismissal matter; and

•  s.596(2)(c) on the grounds that it would be unfair for the Applicant to be unrepresented as the Respondent had representation.

[32] The Respondent did not object to the Applicant being represented by a lawyer or paid agent.

[33] The Applicant’s submissions did not squarely address the criteria in s.596(a), being that granting permission for the Applicant to be represented “would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter” (emphasis added). At the time of the making of the submissions at the Determinative Conference, permission for the Respondent to be represented by lawyer or paid agent had not been granted to the Respondent. Notwithstanding this, having considered the materials filed in the matter, I determined that allowing the Applicant to be represented by a lawyer or paid agent would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter.

[34] I have therefore decided to exercise my discretion to grant permission for the Applicant to be represented.

[35] The Respondent was represented by an officer of an organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) of which the Respondent is a member. That organisation is the Australian Industry Group.

[36] Accordingly, at the Determinative Conference, the Applicant was represented by Mr Marcus Crossley and Mr Graeme Crossley, QC. The Respondent was represented by Mr Anthony Powter of the Australian Industry Group, appearing with Ms Leah Vears of the Respondent.

Witnesses

[37] The Applicant gave evidence on his own behalf and the following witnesses also gave evidence on his behalf:

•  Ms Mary Ann Lara (Ms Lara), the Applicant’s partner. In addition to providing a witness statement, Ms Lara gave evidence at the Determinative Conference.

•  Ms Natasha Masters (Ms Masters), the Applicant’s sister. Ms Masters provided a witness statement however did not appear to give evidence at the Determinative Conference.

[38] The following witnesses gave evidence on behalf of the Respondent:

•  Mr Rob Thompson (Mr Thompson), who provided a witness statement and gave evidence at the Determinative Conference.

•  Ms Alice Munro (Ms Munro), who provided a witness statement and gave evidence at the Determinative Conference.

•  Dr Sarah Moss, Medical Director of OHS Med Pty Ltd (Dr Moss), who was engaged by the Respondent and provided a report to the Respondent dated 6 June 2021. In addition to providing a witness statement, Ms Munro gave evidence at the Determinative Conference.

Submissions

[39] The Applicant filed submissions in the Commission on 11 August 2021. The Respondent filed submissions in the Commission on 25 August 2021.

Has the Applicant been dismissed?

[40] A threshold issue to determine is whether the Applicant has been dismissed from their employment.

[41] Section 386(1) of the FW Act provides that the Applicant has been dismissed if:

(a) the Applicant’s employment with the Respondent has been terminated on the Respondent’s initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

[42] Section 386(2) of the FW Act sets out circumstances where an employee has not been dismissed, none of which are presently relevant.

[43] There was no dispute and I find that the Applicant’s employment with the Respondent terminated at the initiative of the Respondent.

[44] I am therefore satisfied that the Applicant has been dismissed within the meaning of s.386 of the FW Act.

Initial matters

[45] Under s.396 of the FW Act, the Commission is obliged to decide the following matters before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.

Was the application made within the period required?

[46] Section 394(2) requires an application to be made within 21 days after the dismissal took effect.

[47] It is not disputed and I find that the Applicant was dismissed from his employment on 15 June 2021 and made the application on 30 June 2021. I am therefore satisfied that the application was made within the period required in s.394(2).

Was the Applicant protected from unfair dismissal at the time of dismissal?

[48] I have set out above when a person is protected from unfair dismissal.

Minimum employment period

[49] It was not in dispute and I find that the Respondent is not a small business employer, having 15 or more employees at the relevant time.

[50] I find that the Applicant was an employee, who commenced their employment with the Respondent on 21 January 2019 and was dismissed on 15 June 2021, a period in excess of 6 months.

[51] It was not in dispute and I find that the Applicant was an employee.

[52] I am therefore satisfied that, at the time of dismissal, the Applicant was an employee who had completed a period of employment with the Respondent of at least the minimum employment period.

[53] I find that, at the time of dismissal, the sum of the Applicant’s annual rate of earnings was $136,605. 5 It was not in dispute that was less than the high income threshold, which, for a dismissal taking effect on or after 1 July 2020 and before 20 June 2021, was $153,600.

[54] I am therefore satisfied that, at the time of dismissal, the Applicant was a person protected from unfair dismissal.

Was the dismissal consistent with the Small Business Fair Dismissal Code?

[55] Section 388 of the FW Act provides that a person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.

[56] As mentioned above, I find that the Respondent was not a small business employer within the meaning of s.23 of the FW Act at the relevant time, having in excess of 14 employees (including casual employees employed on a regular and systematic basis).

[57] I am therefore satisfied that the Small Business Fair Dismissal Code does not apply, as the Respondent is not a small business employer within the meaning of the FW Act.

Was the dismissal a case of genuine redundancy?

[58] Under s.389 of the FW Act, a person’s dismissal was a case of genuine redundancy if:

(a) the employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and

(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.

[59] It was not in dispute and I find that the Applicant’s dismissal was not due to the Respondent no longer requiring the Applicant’s job to be performed by anyone because of changes in the operational requirements of the Respondent’s enterprise.

[60] I am therefore satisfied that the dismissal was not a case of genuine redundancy.

[61] Having considered each of the initial matters, I am required to consider the merits of the Applicant’s application.

Was the dismissal harsh, unjust or unreasonable?

[62] Section 387 of the FW Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.

[63] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 6

[64] I set out my consideration of each below.

Was there a valid reason for the dismissal related to the Applicant’s capacity or conduct (s.387(a))?

[65] In order to be a valid reason, the reason for the dismissal should be “sound, defensible or well founded” and should not be “capricious, fanciful, spiteful or prejudiced.” 7 However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.8

[66] Where a dismissal relates to an employee’s conduct, the Commission must be satisfied that the conduct occurred and justified termination.⁹ The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination. 10

Submissions

[67] The Applicant conceded that he had both cannabinoid and opiate traces in his system at the time of testing on 25 May 2021. 11

[68] However, in explaining why the Applicant does not agree that the misconduct alleged by the Respondent occurred, the Applicant submitted in his outline of argument that: 12

•  “At no point, during or after the Fit for Duties test did the Applicant present any symptoms or behaviour which could be considered as intoxication or impairment by a reasonable person.”

•  “The Applicant disagrees that the ‘Fit for Duties’ test was required”.

•  “The Applicant was approached upon his return to work on 25 May to participate in a targeted test where no ‘Reasonable Cause’ was provided to him”.

•  The “reading for cannabinoids was due to cannabis-laced foodstuffs which he consumed in the days leading up to the test. The Applicant was unaware that these items contained cannabis as his partner had brought them back from a function in Canberra (ACT).”

•  “The Applicant disagrees with the Respondent’s findings and asked permission for the test results to be re-screened by a third-party. This was denied by the Respondent”.

[69] During the Determinative Conference, the Applicant further submitted:

•  the Respondent had previously attempted to take disciplinary action against the Applicant, without reason, for intoxication; and

•  the Respondent’s reason for undertaking a “Fit for Duties test on 25 May 2021, which led to the Applicant’s dismissal, was an unsubstantiated assumption of the Applicant presenting intoxication for a brief period in April 2021”.

[70] The Respondent submitted that there was a valid reason for the dismissal related to the Applicant’s conduct. In particular, the Respondent submitted that: 13

•  “The Applicant was dismissed because the Fit for Duties requirements obliged him to have 50 ug/L or less of cannabis metabolite where his results indicated a reading of 967 ug/L”.

•  “As a result, Respondent terminated the Applicant’s employment due to the breach of the Fit for Duties requirements which do not focus on the perceived impairment of the individual, but on the levels that are acceptable to the business”.

Evidence

[71] The Fit for Duty Procedure is referenced in the Employment Agreement which states as follows:

“Alcohol and Other Drugs

At Wilmar Sugar employees are required to comply with the Fit for Duty (FFD) procedure. FFD describes the physical or mental condition of a person whereby the person can be reasonably expected to undertake a task without incurring unacceptable risks to the health and safety of that person or others affected by that person’s activities.”

[72] The Fit for Duty Procedure sets out cut-off levels for particular types of drugs which will be used in determining whether a test is negative or non-negative, or in the case of a Laboratory Confirmatory Test, negative or positive.

[73] The Fit for Duty Procedure prescribes a cut off level for Cannabis Metabolite of 50 ug/L.

[74] The Fit for Duty Procedure provides that an employee who fails a drug test may be subject to disciplinary action. It provides that this may include termination due to a breach of the Fit for Duty Procedure and that each breach will be reviewed on a case by case basis.

[75] In his witness statement, Mr Thompson’s evidence was that: 14

•  The Fit for Duty Procedure “was rolled out in early 2019 with initial communication to all staff”.

•  The Fit for Duty Procedure is available to all staff on the intranet.

•  He asked the Applicant during discussions leading to his termination if he was aware of the Fit for Duty Procedure. Specifically, Mr Thompson stated that at a meeting on 4 May 2021, at which allegations concerning the Applicant’s behaviour were presented to the Applicant, he asked the Applicant if he was aware of the Fit For Duty Procedure and the Applicant confirmed that he was. Mr Thompson stated that he “again stressed the importance” of the Fit for Duty Procedure”.

•  At the meeting with the Applicant and Ms Munro on 12 May 2021, he confirmed with the Applicant that there was insufficient evidence to warrant disciplinary action in relation to the allegations about his behaviour, but again reminded the Applicant of the Fit for Duty Procedure and its importance in keeping people safe in the workplace.

[76] In her witness statement, Ms Munro’s evidence was that: 15

•  At the meeting on 4 May 2021, Mr Thompson asked the Applicant if the Applicant was aware of the Fit for Duty Procedure and the Applicant confirmed that he was.

•  At the meeting with the Applicant and Mr Thompson on 12 May 2021, Mr Thompson again reminded the Applicant of the Fit for Duty Procedure.

[77] At the Determinative Conference, the Applicant’s evidence was that:

•  He had been subject to drug and alcohol testing by the Respondent in the past while in North Queensland and before Goodman Fielder became part of the Wilmar Group.

•  He had “passed” the drug and alcohol test when working for Wilmar in the sugar mills.

•  When Wilmar purchased Goodman Fielder, Wilmar employees moved into the offices with Goodman Fielder employees and teams were merged. At this point, the policy was not implemented within the Sydney office because Goodman Fielder employees and their unions did not agree to the policy.

[78] In his witness statement, the Applicant stated: 16

“During the meeting on 12 May 2021, Rob and Alice acknowledged that the ‘Fit for Duty Policy’ has not been implemented into the Goodman Fielder Office (which Wilmar also resides in), and as such is impossible to enforce at this time...”

[79] Under cross examination, the Respondent’s representative asked the Applicant:

“…on the 12th of May, you were informed that the Fitness for Duty Policy was relevant and an important document by both Rob and Alice, weren’t you?”

[80] The Applicant responded:

“Yeah in relation to the frivolous claims that were made on the 27th of April… the weeks prior to this incident”.

[81] The Respondent’s representative put the question again to the Applicant as follows:

“…the question is, did they say to you that the Fitness for Duty Policy was relevant and important and they asked you did you understand what it was and what it meant.”

[82] The Applicant responded:

“Yeah I acknowledge the policy’s there and I acknowledged that I understand what it means and they also acknowledged that they don’t know how to implement it into the mixed office and the two teams because Goodman Fielder do not have to adhere to it and within the policy it’s meant to be done in the office based environment and not personal based”.

[83] The Respondent’s representative then reframed the question again:

“The question’s quite simple, it doesn’t need to be complex. They said to you that you need to follow the Fitness for Duty policy, didn’t they?”

[84] The Applicant responded:

“They said that there’s a policy in place. Yes.”

[85] The Respondent’s representative proceeded:

“And you acknowledged that you were aware of the policy and, and knew where it was to access and read it.”

[86] The Applicant responded:

“Yes. I’m aware of the policy.”

[87] Based on the materials and evidence before me, I am satisfied that the Applicant was required to comply with the Fit for Duty Procedure and was aware of it.

[88] The Respondent filed documents setting out the results of drug and alcohol testing undertaken in relation to the Applicant. This included:

•  two documents of TDDA dated 25 May 2021, each indicating a non-negative oral fluid test in relation to samples taken at 9:47am and 10:09am;

•  a document of TDDA dated 25 May 2021, indicating a non-negative urine test in relation to a sample taken at 10:21am; and

•  a pathology report of Laverty Pathology dated 25 May 2021. The report indicates Codeine and Morphine in the Applicant’s system, and states that the test result “indicates a pattern consistent with the ingestion of codeine as described by the donor”. Relevantly, the report indicted a level of 967 ug/L in relation to cannabis metabolite, in excess of the cut off level prescribed by the Fit for Duty Procedure.

[89] Based on the materials and evidence before me, I am satisfied that the Applicant failed a drug test and was not compliant with the Fit for Duty Procedure.

[90] In the Applicant’s submissions, the Applicant challenges the basis for the Respondent’s request for undertaking the drug alcohol test which led to the Applicant’s dismissal^. In particular, the Applicant states he: 17

•  “disagrees that the ‘Fit for Duties’ test was required”; and

•  “was approached upon his return to work on 25 May to participate in a targeted test where no ‘Reasonable Cause’ was provided to him”.

[91] During the Determinative Conference, the Applicant further submitted that the Respondent’s reason for undertaking a fit for duties test on 25 May 2021 which led to the Applicant’s dismissal, was an unsubstantiated assumption of the Applicant presenting intoxication for a brief period in April 2021.

[92] In the case of reasonable cause testing, the Fit for Duty Procedure provides that:

“testing may be carried out where a worker’s behaviour raises concern regarding their fitness for duty. Events that may give rise to a “Reasonable Cause Test” may include, but are not limited to, any one or a combination of the following:

•  Erratic, abnormal or unusual behaviour

•  Near hits or incidents where safety is compromised

•  Observations of deteriorating work performance

•  Behaviour, appearance or odour that in the Manager’s/Supervisor’s opinion, warrants assessing.

For a worker whose performance, appearance or behaviour suggests they may be maybe impaired by alcohol and/or other drugs, the following process shall occur:

1. The Manager/Supervisor shall be notified.

2. The Manager/Supervisor will check behaviours/indicators against the TDDA Reasonable Cause Indicators –Process Form to determine if the worker is affected by alcohol and/or other drugs.

3. The Manager/Supervisor will arrange a meeting with the worker, inviting them to bring a support person.

4. If the Manager/Supervisor determines the worker is fit for duties, they shall be returned to normal duties.

5. If the Manager/Supervisor determines there is reasonable cause to test the worker for alcohol and other drugs, the Manager/Supervisor is to refer the worker for testing.

6. The Manager/Supervisor will arrange testing with the independent authorised service provider as soon as practicable.

7. If the Manager/Supervisor determines there isn’t reasonable cause to test the worker for alcohol and other drugs, but there is concerns for the worker’s wellbeing, taking into consideration other causes, such as, fatigue, external stresses and any other know medical or health reasons, the worker may be sent home and/or referred to a medical practitioner for assessment.”

[93] The evidence of Mr Thompson and Ms Munro was that there were concerns in relation to the Applicant’s behaviour, attendance and performance in the lead up to requesting the Applicant undertake a drug and alcohol test.

[94] In particular, Mr Thompson stated in his witness statement that: 18

•  He was first made aware of concerns regarding the Applicant’s performance during end of year performance calibration sessions in November. The Applicant’s direct manager, Ms Tomasic, had provided feedback which was supported by the Tower Lead, Mr Wu. The feedback was that the Applicant’s performance was inconsistent.

•  The Applicant’s performance was discussed at a calibration meeting between Mr Thompson and his direct reports and during this session similar feedback was provided by others (his direct reports and IT leaders) about the Applicant’s inconsistent performance. Concerns around attendance at some meeting was discussed. It was agreed at the session that the Applicant would be given a “Developing/Needs Improvement’ performance rating for 2020.

•  Throughout January and February 2021, Ms Tomasic informed him of issues she was having in relation to the Applicant’s attendance and performance.

•  On 23 February 2021, Ms Tomasic and Ms Munro met with the Applicant to provide him with a ‘Coaching Plan’ to ensure expectations regarding performance outcomes were clear and to confirm the process for taking leave.

•  On 29 April 2021, Ms Tomasic alerted him to concerns that Ms Tomasic had said were raised in relation to the Applicant’s behaviour. These concerns were investigated by Mr Thompson and Mr Munro, including via discussions with the two individuals who had witnessed the behaviour. Mr Thompson said the individuals reported the Applicant “swaying, closing his eyes for long periods of time, slurring, and speaking very repetitively” and that he “appeared intoxicated”. Mr Thompson said that one of the individuals advised they felt unsafe during the interaction with the Applicant. The Applicant was stood down pending the outcome of the investigation.

•  A meeting with the Applicant was coordinated for 3 May 2021 and the Applicant was told he could bring a support person. The Applicant confirmed his availability. At 8:34am on 3 May 2021, the Applicant texted the Mr Thompson and advised that he would not be coming into work and requested that the meeting be moved to the following day. The meeting was rescheduled and Mr Thompson advised the Applicant that he would have to submit a leave form, which was not submitted.

•  On 4 May 2021, the Applicant said to Mr Thompson “sorry about yesterday I didn’t feel like coming in”. Mr Thompson determined it was appropriate to issue a formal warning to the Applicant for his absenteeism and failure to attend work when directed to without a reasonable cause.

•  The Applicant was advised of the outcome of the investigation on 12 May 2021 and Mr Thompson advised him he could return on 13 May 2021. The Applicant instead requested a return to work on 17 May 2021, citing that he had been stressed, and this was agreed to.

•  On 16 May 2021, the Applicant sent a text to Mr Thompson advising he would be unable to attend for work on 17 May 2021 as he had tripped over his cat and broken is ribs. The Applicant was absent from work from 17-21 May 2021 and did not submit a leave request in relation to this period.

•  The Applicant returned to work on 25 May 2021 at which time the Applicant joined his new manager and Mr Thompson in a meeting where the need to improve performance and the coaching plan was discussed. At the conclusion of the meeting, Mr Thompson advised that the Respondent wanted him to undergo a drug and alcohol test to which the Applicant agreed.

[95] Ms Munro’s witness statement does not contradict the evidence of Mr Thompson and her account of the meetings in which she participated with Mr Thompson and the Applicant is broadly consistent. In her witness statement, Ms Munro also states that: 19

•  during the meeting of 4 May 2021, the Applicant spoke about his loyalty to the company and “that it felt like a ‘witch hunt’”. Mr Thompson confirmed that it wasn’t a “witch hunt”, explained he had concerns about the Applicant’s welfare and a duty of care to ensure the safety of everyone in his team;

•  she held concerns about the Applicant’s appearance in the meeting on 4 May 2021;   and

•  she spoke to the Respondent’s Head of Safety, providing background in relation to his absenteeism, alleged behaviours in the office, her observations and concerns. Ms Munro states that that the Head of Safety recommended arranging a reasonable cause drug and alcohol test when the Applicant was due to return to the office to ensure it was safe for him to return.

[96] During the Determinative Conference, the Applicant gave evidence that issues arose when Goodman Fielder was overtaken by Wilmar and Ms Tomasic (who he referred to as Estelle) became his manager and the teams merged. The Applicant alleged he was “targeted” by Ms Tomasic and that she had a “vendetta” against him for reasons he did not know. The Applicant’s evidence was that he had many meetings with Mr Thompson discussing Estelle’s management style and job competence. The Applicant also alleged that the Fit for Duty Procedure was used “in a direct and targeted manner towards myself.”

[97] While I accept that the Applicant had concerns in relation to his immediate manager, Ms Tomasic, I accept the evidence of Mr Thompson and Ms Munro that concerns in relation to the Applicant’s behaviour and performance were held by them and that concerns were raised with them by others. I do not accept that the Applicant was unfairly targeted or that the actions of Mr Thompson or Ms Munro suggested premeditation. Rather, I accept that Mr Thompson and Ms Munro held concerns for the safety and welfare of the Applicant and others in the workplace, had a duty of care under work health and safety laws and acted on the recommendation of the Respondent’s health and safety specialist in requesting the reasonable cause testing.

[98] At paragraphs 36-37 of his witness statement, the Applicant says the following in relation to the Fit for Duty Procedure:

“36. It is also to note that within the Policy and its implementation during my employment it was done in a random manner, by which all employees and contractors on site, will randomly pick a ball out of a bag and the colour of chosen ball would dictate if you would be subject to a test, and if so it was an alcohol only test or a drug saliva test.

37. This was not adhered to at all when I was subject to targeted testing as mentioned and in the application of said Policy. This is not consistent with any other implementation of this testing regime within Wilmar in Australia and New Zealand, for which I have previously been subject to and passed and was carried out in a manner consistent across the region and all locations.”

[99] However, the Fit for Duty Procedure is not limited to random testing and clearly states that that the methods of applying alcohol and drug testing may include reasonable cause testing. 20

[100] I accept the evidence of Mr Thompson and Ms Munro that they held concerns about the Applicant’s behaviour, attendance and performance and I find that that these concerns met the criteria for requesting reasonable cause testing in the Fit for Duty Procedure. Furthermore, under cross examination the Applicant acknowledged he agreed to undertake the test when requested and signed a consent form.

[101] In all the circumstances and having considered the evidence before me, I am not persuaded that the Applicant’s concerns regarding the basis for the drug and alcohol are founded or have bearing on my consideration of whether there was a valid reason for dismissal.

[102] In challenging whether there was a valid reason for the dismissal, the Applicant submitted that at “no point, during or after the Fit for Duties test did the Applicant present any symptoms or behaviour which could be considered as intoxication or impairment by a reasonable person.” 21 However, the Respondent submits that the Applicant was dismissed because the Fit for Duties requirements obliged him to have 50 ug/L or less of cannabis metabolite where his results indicated a reading of 967 ug/L.22 The Respondent submits that it terminated the Applicant’s employment “due to the breach of the Fit for Duties requirements which do not focus on the perceived impairment of the individual, but on the levels that are acceptable to the business”.23

[103] In Sydney Trains v Hilder 24 the Full Bench helpfully summarised the principles applicable to the consideration required under s.387(a) of the FW Act as follows:

(1) A valid reason is one which is sound, defensible and well-founded, and not capricious, fanciful, spiteful or prejudiced.

(2) When the reason for termination is based on the misconduct of the employee the Commission must, if it is in issue in the proceedings, determine whether the conduct occurred and what it involved.

(3) A reason would be valid because the conduct occurred and it justified termination. There would not be a valid reason for termination because the conduct did not occur or it did occur but did not justify termination (because, for example, it involved a trivial misdemeanour).

(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct sufficiently serious to justify summary dismissal on the part of the employee in order to demonstrate that there was a valid reason for the employee’s dismissal (although established misconduct of this nature would undoubtedly be sufficient to constitute a valid reason).

(5) Whether an employee’s conduct amounted to misconduct serious enough to give rise to the right to summary dismissal under the terms of the employee’s contract of employment is not relevant to the determination of whether there was a valid reason for dismissal pursuant to s 387(a).

(6) The existence of a valid reason to dismiss is not assessed by reference to a legal right to terminate a contract of employment.

(7) The criterion for a valid reason is not whether serious misconduct as defined in reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).

(8) An assessment of the degree of seriousness of misconduct which is found to constitute a valid reason for dismissal for the purposes of s 387(a) will be a relevant matter under s 387(h). In that context the issue is whether dismissal was a proportionate response to the conduct in question.

(9) Matters raised in mitigation of misconduct which has been found to have occurred are not to be brought into account in relation to the specific consideration of valid reason under s 387(a) but rather under s 387(h) as part of the overall consideration of whether the dismissal is harsh, unjust or unreasonable.

[104] In considering grounds of the appeal concerning the Deputy President’s conclusion at first instance that there was not a valid reason for Mr Hilder’s dismissal, the Full Bench went on to say:

“[29] However, the Deputy President’s consideration of whether there was a valid reason was affected by error of a more consequential nature, in that he did not address the material issues identified in the principles identified above but rather determined the issue by reference to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as to the occurrence of the conduct which was the reason for Sydney Trains’ dismissal of Mr Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder conceded that he was aware of the Policy and its significance. The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.

[30] This matter was not addressed in the decision in relation to s 387(a). Instead, the Deputy President erroneously focused on Sydney Trains’ “zero tolerance” approach to breaches of the Policy and its apparent inconsistency with Sydney Trains’ position that it would take into account any relevant mitigating circumstances before deciding on its disciplinary response. We do not consider that these were matters relevant to whether there was a valid reason for the dismissal, since they did not concern Mr Hilder’s conduct but rather Sydney Trains procedural and substantive disciplinary response to that conduct. If the consequence of Sydney Trains’ “zero tolerance” was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions.

[31] We also consider that the Deputy President erred in two further respects in his consideration under s 387(a), insofar as his assessment of whether Mr Hilder had committed serious misconduct may be understood as forming part of that assessment. First, he took into account that Mr Hilder was not “incapable or incoherent when at work”, which involved a mischaracterisation of Sydney Trains’ reason for dismissal. He was not dismissed for being discernibly affected by drugs while at work; rather he was dismissed for attending to work with a proscribed level of cannabis metabolites in his system. The distinction is critical for the reasons explained by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited 25:

“[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 [Safety Sensitive Aviation Activities]) 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...” (footnotes omitted)

[32] That is not to say that evidence in this case concerning the lack of any impairment was not relevant at all. In accordance with the principles earlier stated, it was potentially relevant under s 387(h) in the context of a consideration of the seriousness of Mr Hilder’s conduct and the proportionality of dismissal as a disciplinary response. However it was not relevant to the actual reason for dismissal.”

[105] Taking into account the reasoning of the Full Bench in Sydney Trains v Hilder, I do not consider the Applicant’s submission that the Applicant did not present any symptoms or behaviour which could be considered as intoxication or impairment by a reasonable person as being relevant to the actual reason for dismissal. That reason was the breach of the Fit for Duty Procedure.

[106] A Full Bench of the Australian Industrial Relations Commission found that “[a] failure to comply with a direction to do or refrain from doing something in compliance with an employer’s policy will not provide a valid reason for termination of employment where:

(a) the policy, or a direction to comply with the policy, is illegal;

(b) the policy does not relate to the subject matter of the employment or matters affecting the work of the employee; or

(c) the policy, or a direction to comply with the policy, is unreasonable.”²⁶

[107] In order to establish if a direction was reasonable, it is not necessary for the Respondent 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. 27 Rather, what is required is a consideration of whether the direction was reasonable, having regard to “[t]he nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument…[which] govern[s] the relationship.”28

[108] The Fit for Duty Procedure sets out cut-off levels for particular types of drugs which will be used in determining whether a test is negative or non-negative, or in the case of a Laboratory Confirmatory Test, negative or positive. 29 The Fit for Duty Procedure provides that an employee who fails a drug test may be subject to disciplinary action.30 It provides that each breach will be reviewed on a case by case basis and that disciplinary action may include termination.31

[109] I consider that the Fit for Duty Procedure is not illegal and relates to the subject matter of the employment, being a requirement that an employee not attend for work with a level of cannabinoids that was above the “levels that are acceptable to the business.”  32 Drug and alcohol policies and procedures are an unremarkable feature in Australian workplaces and are commonly implemented by employers in the manufacturing industry, such as the Respondent. Indeed, in his written response to the show cause letter, the Applicant stated he “completely acknowledges, accepts and agrees with the ‘Fit for Duty’ policy and its safety outcomes as a result” and that he “never would have actively and knowingly not adhered to this policy nor directive”.33 I find that the Applicant was aware of the Fit for Duty Procedure and that Mr Thompson explained to him that it was important that he complied with it. I consider that the Fit for Duty Procedure and the requirement of the Applicant to comply with it was reasonable.

[110] In Sharp v BCS Infrastructure Support Pty Limited 34 the Full Bench found:

“[25] The correct approach to the assessment, pursuant to s.387(a) of the Act, as to whether there is a valid reason for an employee’s dismissal relating to the employee’s capacity or conduct where the employee is alleged to have committed misconduct was that stated by the Full Bench (Lawler VP and Cribb C) B, C and D v Australian Postal Corporation T/A Australia Post as follows:

“[34] In considering whether there was a valid reason for a dismissal under s.387(a), the reason(s) being considered are the employer’s reason(s). 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.”

[111] The Applicant also contends that he unintentionally ingested cannabis in challenging the reason for his dismissal. 35

[112] Turning to the question of whether a breach of a policy or procedure need to be “intentional” in determining whether there is a valid reason for the dismissal, I note the Full Bench in Sydney Trains and Hilder 36 went on to say:

“[33] Second, the Deputy President treated as a significant relevant consideration whether Mr Hilder’s breach of the Policy was intentional rather than a mere error of judgment. Again, that was a distraction from the actual reason for the dismissal, which was a breach by Mr Hilder of the Policy simpliciter by attending for work with a proscribed level of drugs in his system. It would place an employer in an impossible position if, in order to enforce workplace safety policies, the employer had to demonstrate intentionality on the part of the offending employee. In this respect, the following statement by the Full Bench in Urso v QF Cabin Crew Australia Pty Limited, which concerned the dismissal of a flight attendant who had become intoxicated during a stay in a slip port to the extent that he failed to attend for work the next day, is directly applicable:

“[30] It may be accepted that Mr Urso did not positively intend to become intoxicated to the degree that he could not attend for work the following day when he went to the bar in New York on 22 July 2017. However we do not accept that intention is a necessary element of misconduct which might constitute a valid reason for dismissal for the purpose of s 387(a). Some forms of misconduct clearly involve a positive intention on the part of the employee, such as workplace theft or fraud. However other forms of misconduct, such as breaches of safety policies and procedures, may be the result of recklessness, negligence or misjudgement. In this case, Mr Urso’s responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree which ensured he would be able to attend for work and safely perform his duties the following afternoon. That necessarily required close and continuing attention to the amount of alcohol he was consuming and its effect upon him, since it is notorious that alcohol will operate to progressively diminish personal responsibility and impair a person’s sense of judgment. It defies common sense that a person exercising the requisite degree of restraint could put themselves in the position of consuming 14 standard drinks and then passing out in a period of well under two hours. That Mr Urso got himself in that condition was, we consider, the result of recklessness and misjudgement on his part.”

[34] Again, the issue of Mr Hilder’s intentionality may have been relevant under s 387(h) (although we note that it was not in dispute that he intentionally smoked the marijuana cigarette which caused him to be in breach of the Policy), but it was not relevant to an assessment of the validity of his admitted breach of the Policy as a reason for dismissal.”

[113] Taking into account the reasoning of the Full Bench, I do not consider the Applicant’s submission that the Applicant unintentionally ingested cannabis as being relevant to an assessment of the Applicant’s failure to comply with the Fit for Duty Procedure as a reason for dismissal.

Finding

[114] I note it is not the Commission’s role to “stand in the shoes of the employer and determine whether or not the decision made by the employer was a decision that would be made by the court.”³⁷ However, I “must consider the entire factual matrix in determining whether an employee’s termination was for a valid reason.”³⁸

[115] Having done so and based on the materials and evidence before me, I am satisfied that the Applicant returned a positive laboratory confirmed test relation to cannabis metabolite that was significantly higher than the cut off level prescribed by the Fit for Duty Procedure and that he failed to comply with the Fit for Duty Procedure.

[116] Having regard to the matters I have referred to above, I find that there was a valid reason for the dismissal related to the Applicant’s conduct.

Was the Applicant notified of the valid reason (s.387(b))?

[117] Proper consideration of s.387(b) requires a finding to be made as to whether the Applicant “was notified of that reason”. Contextually, the reference to “that reason” is the valid reason found to exist under s.387(a). 39

[118] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made to terminate their employment, 40 and in explicit and plain and clear terms.41

[119] On 25 May 2021, the Applicant returned two non-negative results in relation to oral saliva testing. Confirmatory urine testing was undertaken as a result. On 28 May 2021, Mr Thompson received a copy of the laboratory results which indicated a positive result for opiates and cannabis metabolite. Mr Thompson’s evidence was that on 1 June 2021 he arranged a meeting with the Applicant and sent him a copy of the laboratory results. 42

[120] The Respondent filed a copy of a letter to the Applicant dated 2 June 2021 and dealing with the subject “Potential end of your employment – show cause”. In that letter, the Respondent stated:

“As you are aware, on Tuesday 25 May 2021, you were requested to undergo a Drug and Alcohol test. As a part of this process, you were administered with two oral screening/saliva tests both of which resulted in ‘non-negative results. These results indicated readings for Cannabis Metabolite along with other positive readings for drugs which you advised were associated with pain medication.

Due to the two ‘non-negative’ results from the oral screening/saliva tests, a urine screen was administered and sent to a lab for confirmatory testing. We have now received the report from Laverty Pathology and this confirms a positive result for Cannabis Metabolite. The cut off levels for Cannabis Metabolite are 50 ug/L and these levels are set by the Commonwealth Government Therapeutics Goods Administration (TGA). Your lab results indicate 967 ug/L which significantly exceeds the cut off limit. A copy of this report has been provided to you.

According to The Drug Detection Agency, the failure of two oral screening/saliva tests for Cannabis Metabolite strongly indicates there was very recent usage of Cannabis. This, along with the confirmatory lab results constitutes serious misconduct as per your employment contract and failure to meet the Fit for Duties requirements.”

[121] Having regard to the evidence before me, I find that the Applicant was notified of the reason for his dismissal prior to the decision to dismiss being made, and in explicit and plain and clear terms.

Was the Applicant given an opportunity to respond to any valid reason related to his capacity or conduct (s.387(c))?

[122] In order to be given an opportunity to respond, the employee must be made aware of allegations concerning the employee’s conduct so as to be able to respond to them and must be given an opportunity to defend himself. As Justice Moore has stated, “the opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That…does not constitute an opportunity to defend.”⁴³

[123] An employee protected from unfair dismissal should be provided with an opportunity to respond to any reason for their dismissal relating to their conduct or capacity. An opportunity to respond is to be provided before a decision is taken to terminate the employee’s employment. 44

[124] The opportunity to respond does not require formality and this factor is to be applied in a common sense way to ensure the employee is treated fairly. 45 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.46

[125] The show cause letter of 2 June 2021 offered the Applicant the opportunity to show cause as to why his employment should not be terminated. On 3 June 2021, the Applicant provided his response.

[126] A copy of this response was provided with the Respondent’s materials. By way of summary, in the response, the Applicant:

•  explained he was unaware that he had ingested cannabis, that the positive test result had come as a shock to him and that he had learned from his friend on 28 May 2021 that cookies he had eaten contained cannabis;

•  acknowledged and accepted responsibility for the positive result in light of this information and offered to undertake ongoing testing or adhere to any conditions required for him to return to work; and

•  stated he “completely acknowledges, accepts and agrees with the ‘Fit for Duty’ policy and its safety outcomes as a result” and that he “never would have actively and knowingly not adhered to this policy nor directive”.

[127] In the Applicant’s submissions, the Applicant addressed the question “Were you given an opportunity to respond to the reason(s) you were given for the dismissal?”. In response to this question, the Applicant submitted:

“Whilst the Applicant was given an opportunity to respond to the Respondent’s contentions. This was done so on 3 June 2021. However, the Applicant believed that his dismissal was a premeditated response from the Respondent as he had been falsely accused of intoxication within the workplace prior in April 2021 with no evidentiary basis. The Respondent continued with the Applicant’s dismissal despite his clear work history and history of negative results from randomized testing in the past”.

[128] Similar submissions were made by the Applicant turning to the question of whether there was a valid reason for the dismissal.

[129] The Applicant was dismissed due to breach of the Fit for Duties Procedure which obliged him to have 50 ug/L or less of cannabis metabolite where his results indicated a reading of 967 ug/L. As, I have found earlier in this decision, I do not accept the Applicant was unfairly targeted or that the actions of Mr Thompson or Ms Munro suggested premeditation. Rather, I accept that Mr Thompson and Ms Munro held concerns for the safety and welfare of the Applicant and others in the workplace, had a duty of care under work health and safety laws and acted on the recommendation of the Respondent’s health and safety specialist in requesting the reasonable cause testing. The Applicant failed the drug test and in these circumstances the Fit for Duty Procedure provides that this may result in disciplinary action, including termination, which was what ultimately occurred.

[130] The Applicant was made aware of the positive drug test and was given an opportunity to defend himself. I find that the Respondent had not made a firm decision to terminate the Applicant, irrespective of anything he might say in his defence. Rather, following the receipt of the Applicant’s response to the show cause letter, the evidence of Ms Munro and Mr Thompson was that consideration was given to the response in deciding what disciplinary or other action to implement. 47

[131] The decision to terminate the Applicant’s employment was communicated to him on 15 June 2021. The Applicant stated at paragraph 43 of his witness statement that:

“I requested access to my medical tests and data, which was denied. I wanted an Independent Third Party Medical Review, which Alice and Rob denied.”

[132] It is unclear from the Applicant’s submissions what he says the impact of not receiving his medical data is and to which consideration under s.387 of the FW Act it is relevant. However, it seems to me that the submission had the closest synergy to the consideration under s.387(c) of the FW Act and as such I deal with the submission here in considering whether the Applicant was given an opportunity to respond to any valid reason related to his capacity or conduct.

[133] Under cross-examination, the Applicant acknowledged that he had received his test results on 1 June 2021 and this is consistent with the evidence of Mr Thompson. However, the Applicant clarified that he “wanted his urine sample, for example, to go to another lab to be tested and this is what was denied” and that he was provided with findings but not his “medical data”. Under re-examination, the Applicant stated that he wanted to access the samples so he could send it to an independent laboratory to see if the result was the same.

[134] The Fit for Duties states at part 3.8.9.2:

“If the worker wishes to contest the confirmatory test result, the worker can elect to have duplicate sample tested at the same or an alternative NATA accredited laboratory at their expense. If an alternative NATA accredited laboratory is selected, the worker must also pay for the cost of transporting the sample. If the duplicate sample is negative, the worker will be reimbursed for the testing costs and may return to work with no loss of pay or disciplinary action. If the result is confirmed positive, the worker will be stood down. An employee in this position mat access personal leave entitlements or leave without pay is to apply.”

[135] Under re-examination, the Applicant was asked “was this ever offered to you?”, to which the Applicant replied “No. I requested it and it was denied.”

[136] In giving evidence during the Determinative Conference, Mr Thompson said “…my recollection was that Luke made a statement that he might want to get a second opinion and I said ok fine, I’ve sent you the lab report.” Mr Thompson’s evidence was that:

•  he recalled the Applicant asked for his test results, which were provided, but did not recall him asking for samples and was not privy to any discussions he may have had with the FDDA regarding his test results; and

•  the Applicant could have sought a second opinion if he wanted to and that the TDDA, the external party, held the sample.

[137] During the Determinative Conference, I sought clarification from the Applicant regarding whether and when he sought access to his samples. The Applicant’s evidence was that:

•  in the week leading up to his dismissal he was speaking to Mr Thompson via telephone regularly and was informed that his matter was with the health and safety officer;

•  when he returned to the workplace on 15 June 2021, he was of the belief he was going to be returning to work but was instead provided with a dismissal letter;

•  at this point he asked to speak to the health and safety officer and this was denied;

•  following this he asked for his “medical data” so he could have it independently reviewed and he was advised that he did not have any avenues in which he could discuss the matter further; and

•  at this point he advised his employer he would not be signing any of the documentation that he had been requested to sign and that he would be getting legal advice.

[138] I accept that the Applicant may not have formed the view that he would be dismissed from his employment prior to being advised of his dismissal on 15 June 2021 and find that it was only upon notification of dismissal that he requested his medical data.

[139] However, it cannot be said that the fact the Applicant was not provided with his “medical data” or laboratory sample when he requested it following his dismissal meant that he was not given an opportunity to respond. In particular, I find that that request for the “medical data” was made after the decision to dismiss the Applicant had already been communicated, the Applicant had already admitted to ingesting cannabis (albeit suggesting this was unintentional), had been made aware of the positive test results, had been made aware that this amounted to failure to meet the requirements of the Fit for Duty Procedure and that the Respondent considered this amounted to “serious misconduct”.

[140] Having regard to the evidence before me, I am satisfied that the Applicant was provided with an opportunity to respond to any reason for his dismissal relating to his conduct and that the opportunity to respond was provided before a decision was taken to terminate his employment.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?

[141] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, an employer should not unreasonably refuse that person being present.

[142] There is no positive obligation on an employer to offer an employee the opportunity to have a support person:

“This factor will only be a relevant consideration when an employee asks to have a support person present in a discussion relating to dismissal and the employer unreasonably refuses. It does not impose a positive obligation on employers to offer an employee the opportunity to have a support person present when they are considering dismissing them.”48

[143] The Applicant’s outline of submissions indicate that the Applicant did not request that a support person be present to assist in discussions relating to the dismissal. There is no suggestion that the Applicant was unreasonably refused a support person.

[144] I find that the Respondent did not unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal.

Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?

[145] As the Applicant was not terminated on the basis of unsatisfactory performance, this factor is not relevant to the present circumstances.

To what degree would the size of the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(f))?

[146] Neither party submitted that the size of the Respondent’s enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of the Respondent’s enterprise had no such impact.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent’s enterprise be likely to impact on the procedures followed in effecting the dismissal (s.387(g))?

[147] I am satisfied the Respondent has dedicated human resources specialists. No submissions were made on this issue. I therefore consider this to be a neutral factor.

What other matters are relevant (s.387(h))?

[148] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

Submissions

[149] The Applicant submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable: 49

•  The Applicant did not wilfully or deliberately consume cannabinoids and supplied information regarding his prescription medication. The Applicant’s conduct cannot be classified as “serious misconduct” as it was devoid of any wilful or deliberate behaviour.

•  The Applicant’s conduct could not create serious or imminent risk to the health and safety of himself or other employees of the Respondent as he was not intoxicated or impaired.

•  The Applicant “did not present any signs of incoherence and sited (sic) multiple times in his responses that he had made an error of judgement” and that “he too was surprised by the traces of cannabinoids and opiates in his system”.

•  There was no harm done to the Respondent’s reputation, viability or profitability as the matter was private and confidential.

•  The Applicant was dismissed despite having an unblemished work record which, according to Lawrence v Coal Allied Mining Services Pty Ltd 50, will influence a finding as to whether a dismissal is “manifestly harsh”.

•  The Applicant informed the Respondent of the incidents preceding the drug and alcohol testing which accounted for the cannabinoids and opiates in his system. The Applicant was open and honest from the outset of the investigation.

•  Despite his contentions, the Applicant agreed with the Fit for Duty Procedure and proposed ongoing testing and verification to demonstrate the positive test result was a “one-off” occurrence.

•  “The dismissal was “devoid of procedural fairness” as the Respondent has a history of accusing the Applicant specifically of intoxication or behaviour to that effect without evidentiary basis”. 51

[150] The Respondent submitted that the following other matters are relevant to the Commission’s consideration of whether the dismissal was harsh, unjust or unreasonable: 52

•  “The matters now raised by the Applicant as mitigating circumstances are not significant mitigating factors, namely non-intentional use and having no knowledge he was taking the illicit drug. It is the Respondent’s submission the Applicant gave in any event misleading answers as to how the illicit drug came to be in his system.”

•  The Applicant was provided with four weeks’ pay in lieu of notice.

•  The Applicant’s misconduct contributed to the Respondent’s decision to dismiss the Applicant.

•  The Applicant has a relatively short period of service with the Respondent of less than 2.5 years service.

•  The Applicant was afforded due process and provided with procedural fairness in that a show cause process was applied which enabled him to provide for his version of events and matters in mitigation before any decision was made in relation to the termination of his employment.

•  The Applicant does not have an unblemished record, has been subject to warnings and a number of issues have been raised as to his performance, as identified in the witness statements of Mr Thompson and Ms Munro.

•  “The Applicant has not shown acceptance that he had conducted himself improperly, rather he seeks to dismiss the seriousness of his actions by either claiming he was not aware he had taken the drug or down playing the matter with regards towards safety processes and systems”.

•  The Applicant’s case is distinct and unique given “the nature of the illicit drug such as cannabis in his system, the level of the ready of the cannabis in his system (almost 20 times over the cut off level), and his lack of frankness about taking the illicit drug until he was tested positive”.

[151] I consider that the following matters are relevant to my consideration of whether the dismissal was harsh, unjust or unreasonable:

•  whether procedural fairness was afforded to the Applicant;

•  the Applicant’s work performance and history; and

•  the degree of seriousness of the misconduct.

Procedural fairness

[152] Having considered the evidence before me, I find that the Applicant was not denied procedural fairness. He was informed, prior to the dismissal, that he had tested positive for cannabinoids in breach of the Fit for Duty Procedure and given an opportunity to respond. This constituted the primary basis upon which he was dismissed.

Work performance and history

[153] The Applicant submitted that he has unblemished work record and that this should be taken into account. An employee’s long and satisfactory work performance or history may be taken into consideration under s.387(h) of the FW Act and, depending on all the circumstances, may weigh in favour of a conclusion that the dismissal of the employee was harsh, unjust or unreasonable.⁵³

[154] Under cross-examination, the Applicant did however accept that he was subject to a coaching plan that had been introduced by his immediate manager, and that this was discussed with him around 23 February 2021. The Applicant acknowledged that this was discussed with him by his immediate manger and Ms Munro and this involved discussing aspects where they required the Applicant to show improvement. The Applicant did however contend that this was based on “frivolous claims” and that the coaching plan provided was never “adhered to”. The Applicant also accepted that he had received a “needs improvement” rating in his end of year performance rating and that there were matters that had been raised in relation to his performance in his role. 

[155] Under cross-examination, the Applicant was asked whether he was issued with a formal written warning regarding unexplained absence from the workplace. The Applicant’s response was that he didn’t recall. The Applicant did however acknowledge that he had a meeting on the “12^th with Alice and Rob”. He said that on 9 May 2021, he was supposed to have a meeting that he did not attend because he was ill and that the meeting was rescheduled to 12 May 2021. The Applicant subsequently acknowledged in his evidence that he had seen the warning letter dated 12 May 2021 however did not accept that it constituted a “warning”. I have considered the letter dated 12 May 2021. That letter states:

“This letter is confirmation of a meeting that was held today with you, Alice Munro and myself. As we advised during the meeting, Wilmar Sugar has decided to issue you with a written warning. Information relating to the reason and justification for the warning is detailed in this letter.”

….

The company has considered your reason for failing to attend work i.e. ‘that you didn’t feel like coming in’ and considers this to be completely unacceptable. The company has decided to issue you with a written warning for a failure to comply with a reasonable management request without providing a valid reason.”

[156] It is difficult to characterise the letter of 12 May 2021 as anything other than a written warning and this turns to the credibility of the Applicant’s evidence.

[157] I find that the Applicant did not have an unblemished record and his performance was of concern since at least early 2021.

Degree of seriousness of the misconduct

[158] The degree of seriousness of the misconduct may be taken into account as a relevant matter under s.387(h) when considering whether “dismissal was a proportionate response to the conduct in question.”⁵⁴

[159] The submissions raised by the Applicant regarding the level of intoxication or impairment from, or influence and effect of, drug use are ultimately not to the point in this case. The Respondent is concerned about the safety of those in its workplace and minimising risk. In order to achieve this, its Fit for Duty Procedure provides for disciplinary action where employees return a laboratory confirmed positive drug test and the Respondent required that the Fit for Duty Procedure be complied with.

[160] The Full Bench in BHP Coal Pty Ltd v Schmidt 55 made the following observations in the context of a case involving safety issues:

“The criteria for assessing fairness, although not exhaustive, are clearly intended by the legislature to guide the decision as to the overall finding of fairness of the dismissal and are essential to the notion of ensuring that there is “a fair go all round”. This is particularly important in relation to safety issues because the employer has obligations to ensure the safety of its employees, and commitment and adherence to safety standards is an essential obligation of employees – especially in inherently dangerous workplaces. The notion of a fair go all round in relation to breaches of safety procedures needs to consider the employer’s obligations and the need to enforce safety standards to ensure safe work practices are applied generally at the workplace.”

[161] I consider that the Respondent was entitled to regard the Applicant’s breach of the Fit for Duty Procedure seriously. I am not persuaded the mitigating circumstances raised by the Applicant outweigh his breach and make his dismissal a disproportionate response.

[162] While the Respondent may have characterised the conduct as “serious misconduct”, I also note that the Applicant was paid four weeks’ notice in lieu and was not summarily dismissed.

[163] The Applicant contends that he unknowingly ingested cannabis and that this is a relevant factor. The Respondent does not accept his explanation.

[164] For completeness, I note that the Respondent procured a report from the independent Medical Review Officer, Dr Moss, and this informed its conclusion that the Applicant’s version of events (i.e. accidental ingestion of cannabis) was inconsistent with the test results.

[165] I did not consider the report and evidence of Dr Moss to be clear in expression and find it difficult to discern what the report and evidence is saying. During the Determinative Conference, I put several questions to Dr Moss in an attempt to clarify the meaning of certain statements in the report. However, I did not find the explanations to be of assistance. I have not attached weight to it or the evidence of Dr Moss in arriving at my decision. The confirmatory laboratory result is clear in its finding and I have no evidence before me to suggest it is inaccurate. Dr Moss did not undertake further testing of the samples and the report of Dr Moss would appear relevant only in the Respondent’s consideration of the reasons provided by the Applicant. The Applicant was dismissed because the Fit for Duty Procedure obliged him to have 50 ug/L or less of cannabis metabolite whereas his results indicated a reading of 967 ug/L and, as result, he was in breach of the Fit for Duties Procedure. I consider it was open to the Respondent to find that the breach was a serious one without reliance on the report of Dr Moss.

[166] The Applicant’s evidence was that following his positive test, he worked out that there were cannabis cookies in the food brought back from a 40^th birthday party his sister and partner attended. Given the inconsistencies in the Applicant’s evidence concerning his work performance and history, I also find the Applicant’s evidence in this regard to be of questionable credibility. In support of his explanation that the cannabis was unknowingly consumed, the Applicant put forward his partner, Ms Lara, as a witness in the proceedings. At the Determinative Conference, Ms Lara gave evidence that on 22 May 2021 she attended a 40^th birthday party in Canberra, stayed the night and left the next morning and took a plate of food home with her consisting of “meat, salads, cookies, cakes and a combination of things”. Ms Lara’s evidence was that she did not eat any of the cookies but that she saw the Applicant eat the cookies, including on the Monday night following the party. Ms Lara was unsure how many cookies she saw the Applicant eat however estimated he may have eaten two or three. Ms Lara described the cookies as the size of “subway cookies”. Ms Lara estimated the time that the Applicant ate the cookies as being between 10pm and midnight when she was watching a movie with him. 

[167] The Applicant’s sister, Ms Masters, also provided a witness statement. The evidence of Ms Masters is that she went to Canberra with Ms Lara and that the host gave them some food to take home to the Applicant.

[168] While Ms Lara’s evidence is that she estimated that the Applicant may have eaten two or three “subway sized” cookies the night prior to his drug and alcohol test, it does not persuade me to make a finding that the consumption of those cookies resulted in the Applicant’s positive test, which indicated a reading of 967 ug/L, over 19 times the cut of limit set out in the Fit for Duty Procedure. On the basis of the evidence before me, I am not persuaded that the reason for the positive drug test in relation to cannabinoids was the reason provided by the Applicant to the Respondent. I do not consider that the Applicant’s explanation weighs in favour of a finding that the dismissal was harsh, unjust or unreasonable.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

[169] I have made findings in relation to each matter specified in s.387 of the FW Act as relevant.

[170] I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable. 56

[171] Having considered each of the matters specified in s.387 of the FW Act, I am satisfied that the dismissal of the Applicant was not harsh, unjust or unreasonable.

[172] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the FW Act.
[173] The Applicant’s application is therefore dismissed.

COMMISSIONER

Appearances:

Mr M Crossley and Mr G Crossley of Counsel on behalf of the Applicant

Mr A Powter on behalf of the Respondent

Hearing details:

2021.

Sydney (By Video using Microsoft Teams).

September 1.

Printed by authority of the Commonwealth Government Printer

<PR735334>

 1   Applicant, ‘Form F2 – Unfair Dismissal Application’, filed 30 June 2021.

 2   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 9 July 2021.

 3   Warrell v Fair Work Australia [2013] FCA 291.

 4   Ibid.

 5   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 9 July 2021, 1.5; Applicant, ‘Applicant’s Outline of arguments: merits’, 2b.

 6   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].

 7   Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373.

 8   Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

9 Edwards v Justice Giudice [1999] FCA 1836, [7].

 10   King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24].

 11   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021, 4c, [1].

 12   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021.

 13   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 9 July 2021, 1.5.

 14   Mr Rob Thompson, ‘Witness Statement of Rob Thompson’, filed 25 August 2021.

 15   Ms Alice Munro, ‘Statement of Alice Munro’, filed 25 August 2021.

 16   Mr Luke Masters, ‘Witness Statement’, filed 11 August 2021, [26].

 17   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021.

 18   Mr Rob Thompson, ‘Witness Statement of Rob Thompson’, filed 25 August 2021.

 19   Ms Alice Munro, ‘Witness Statement of Alice Munro’, filed 25 August 2021.

 20   Respondent, ‘Management of Alcohol and other Drugs – Fit for Duties Procedure, dated 26 April 2019, 3.1.

 21   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021, 4c, [4].

 22   Respondent, ‘Form F3 – Employer response to unfair dismissal application’, filed 9 July 2021, 1.5.

 23   Ibid.

 24   [2020] FWCFB 1373 at [26].

 25   [2015] FWCFB 1033.

26 Woolworths Ltd (t/as Safeway) v Brown PR963023 (AIRCFB, Lawler VP, Lloyd SDP, Bacon C, 26 September 2005), [34].

 27   Briggs v AWH Pty Ltd [2013] FWCFB 3316, [8].

 28   The King v Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan (1938) 60 CLR 601, 622 (per Dixon J).

 29   Respondent, ‘Management of Alcohol and other Drugs – Fit for Duties Procedure, dated 26 April 2019, 3.7.2.

 30   Ibid, Figure 6.

 31   Ibid, 3.10.1.

 32   Respondent, ‘Outline of Argument’, filed 25 August 2021, 1.5.

 33   Applicant, ‘Response from Luke Masters’, dated 3 June 2021, [29].

 34   [2015] FWCFB 1033.

 35   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021, 4c, [5].

 36   [2015] FWCFB 1033.

37 Commonwealth of Australia (Australian Taxation Office) t/a Australian Taxation Office v Shamir [2016] FWCFB 4185, [46] citing Walton v Mermaid Dry Cleaners Pty Ltd (1996) 142 ALR 681, 685.

38 Ibid, [46] citing Allied Express Transport Pty Ltd v Anderson (1998) 81 IR 410, 413.

 39   Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429, [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533, [55].

 40   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151.

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

 42   Mr Rob Thompson, ‘Witness Statement of Rob Thompson’, filed 25 August 2021, [27].

43 Wadey v YMCA Canberra [1996] IRCA 568.

 44   Crozier v Palazzo Corporation Pty Ltd t/a Noble Park Storage and Transport Print S5897 (AIRCFB, Ross VP, Acton SDP, Cribb C, 11 May 2000), [75].

 45   RMIT v Asher (2010) 194 IR 1, 14-15.

 46   Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7.

 47   Ms Alice Munro, ‘Statement of Alice Munro’, filed 25 August 2021, [37]-[47]; Mr Rob Thompson, ‘Witness Statement of Rob Thompson’, filed 25 August 2021, [30]-[31].

48 Explanatory Memorandum, Fair Work Bill 2008 (Cth), [1542].

 49   Applicant, ‘Applicant’s Outline of arguments: merits’, filed 11 August 2021.

 50   (2010) 202 IR 388.

 51   Applicant, ‘Form F2 – Unfair Dismissal Application’, filed 30 June 2021, 3.2, [13].

 52   Respondent, ‘Respondent’s Outline of arguments: merits’, filed 25 August 2021.

53 Telstra Corporation v Streeter [2008] AIRCFB 15, [27].

54 Gelagotis v Esso Australia Pty Ltd t/a Esso [2018] FWCFB 6092, [117].

 55   [2016] FWCFB 1540 at [8].

 56   ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357, [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [92]; Edwards v Justice Giudice [1999] FCA 1836, [6]–[7].