Michael Albert v Alice Springs Town Council[2017] FWC 73 (U2016/10304). Wilson, C. 10 JANUARY 2017

 

Background:

 

  • Michael Albert was employed by the Alice Springs Town Council from 16 September 2013 until his dismissal 27 July 2016.
  • He drove a Council truck that was involved in an accident. He was found not to be at fault. Police and ambulance attended the accident scene. Albert was breathalyzed by the police for alcohol and was found to be zero BAC.
  • However, Council ordered that albert attend a pathology service for a (urine) test for drugs.
  • The drug test showed the presence of cannabis metabolite within the sample tested, to the level of 1100 µg/L against a “cut off” of 15 µg/L. That is, some 73 times over the “cutoff” level of that more precise testing, conducted through mass spectrometry in accordance with the Australian Standard on the subject is 15 µg/L, meaning that amounts lower than that level would not be reliably detected by the test.
  • Albert conceded he had used marijuana on the previous Sunday night (two days prior to the accident) which occurred on Wednesday, 20 July 2016.
  • The Council has a Drug and Alcohol policy which provides for consequences of breaching the policy.

 

The commissioner found:

 

“The context of the workplace includes one in which employees, such as Mr Albert, are required to operate large items of plant and equipment. The Town Council is also a regional employer which desires to be an exemplar to its community, which itself suffers from the ill-effects of drug and alcohol abuse on a daily basis. It submitted that the Commission should have regard to the following matters of context about the operational requirements of its business;

 

“Furthermore, the Applicant worked in a section of the Alice Springs Town Council which is highly visible to the public. Due to the nature of his position, most of his work is done within the public eye and a positive result of 73 times more than the cutoff point is not only a danger to himself or other workers, but it does not reflect well on the reputation of his employer.

 

“The Alice Springs Town Council is a local government authority and its ongoing and continued management of civil services in a township of about 28,000 residents is reliant on public trust and goodwill to ensure that infrastructure projects, involving a lot of concrete works, are finalised as these often cause disruptions to traffic flow and peaceful surroundings. The Alice Springs Town Council cannot afford to be impacted on its reputation by the perception of the public that their visible and public employees are users of prohibited drugs and there is no consequence to it.

 

“The fact that the positive result of the Applicant’s confirmatory drug test analysis is so in excess of the cutoff point meant that the Employer did not have any other option but to regard the behaviour of the Applicant as flouting the essential conditions of the contract of employment.

 

“The Applicant is also in the position of working with very heavy machinery and as such performs safety-critical work. On the day of the accident, the Applicant was driving a concrete truck from the Hino 500 series. Even though the Applicant’s impairment was not in question on the day, the context of his safety-critical work is afforded more weight within the application of the policy and breaching the zero-tolerance policy is a valid reason for dismissal.” [My emphasis].

 

Adding:

 

“The likelihood that Mr Albert did not appear impaired to the police and ambulance crew does not change my finding that the Town Council held a valid reason for his dismissal”.

 

In considering the “procedural” aspects of the dismissal, the Commissioner referenced Wadey v YMCA Canberra:

 

“For the Commission to have regard to whether an employee has been given an opportunity to respond to the reason for dismissal, there needs to be a finding that there is a valid reason for dismissal…

 

“[T]he opportunity to defend, implies an opportunity that might result in the employer deciding not to terminate the employment if the defence is of substance. An employer may simply go through the motions of giving the employee an opportunity to deal with allegations concerning conduct when, in substance, a firm decision to terminate had already been made which would be adhered to irrespective of anything the employee might say in his or her defence. That, in my opinion, does not constitute an opportunity to defend”.

 

Whilst finding that Albert was not provided with an opportunity to respond to the Council’s reasons for his dismissal, the Commissioner referenced numerous citations, including the following:

 

“It is not axiomatic that a failure to accord an employee with procedural fairness in the form of an opportunity to respond to an employer’s reason for dismissal will lead to a finding that an employee has been unfairly dismissed.

 

“In Hafer v Ensign Australia, Commissioner Platt found that a failure to give an employee, dismissed for drug use, an opportunity to respond to the reasons for termination would not have had any bearing on the outcome of the disciplinary process.

 

“…in relation to matters of misconduct generally, that in circumstances in which procedural faults are established that two questions arise for consideration; did the seriousness of the misconduct outweigh any procedural faults and would the procedural faults have affected or altered the ultimate outcome of the dismissal?”

 

The Commissioner deciding:

 

“At the time of the motor vehicle accident Mr Albert was obviously driving a significant sized truck on a public road. That he was not at fault in the accident is not relevant; instead what is relevant is that he was driving while under the influence of a drug…I am satisfied that the Town Council was entitled to consider the circumstances as an extremely serious breach of its requirements.

 

“In Mr Albert’s case, I find that the seriousness of his actions outweigh the procedural faults of the Town Council in its decision to dismiss him, and I find that had the procedural faults been remedied, they would have been unlikely to affect or alter the ultimate outcome of the matter.

 

“As a result, I find that Mr Albert was not unfairly dismissed, and his application is in turn dismissed”.

 

Commentary

 

Well, I’m confused. Most cases that I have reported on have “procedural fairness” holding sway over a “valid reason”. Three cheers for common sense on this occasion.

 

Notwithstanding the strength of having a Drugs and Alcohol policy AND following it through.

Greg Reiffel Industrial Relations & Human Resources Consulting has been providing the following services to businesses for over 30 years:

 

  • General HR and IR advisory service.
  • Fair Work Commission representation (eg unfair dismissals, adverse actions, etc.).
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  • Policies and procedures.
  • Discipline & Termination.
  • People Audits (are you at risk of prosecution?).
  • Enterprise Agreements, Contracts of Employment, Individual Flexibility Agreements.
  • On-site HR services.

Contact Greg on 0438 906 050 or mailto: greg@gregreiffelconsulting.com.au.