Shannon Green v Lincon Logistics Pty Ltd T/A Lincon Hire & Sales. [2017] FWC 4916. (U2017/3305). Platt, C. 20 September 2017.

 

There are two main issues to this case. Firstly, whether the non-compliance with a blood test for detecting drugs and/or alcohol is a reasonable and lawful instruction; and secondly that “covert recording” of conversations was deemed by the Commissioner to be misconduct.

 

Mr Green was employed as an Elevated Work Platform Operator at Lincon for 5 ½ years. His work was considered “high risk”.

 

Following an incident at the workplace, all employees were required to undergo an alcohol and drug test by way of “observed” urine sample. It was also claimed that a number of anonymous phone calls were made to the company alleging that the applicant was drug-affected at the time. Despite these allegations, the applicant returned a “negative” sample.

 

Further anonymous phone calls alleged that the applicant had diluted/substituted his urine sample.

 

The company responded by requesting that the applicant undergo a blood test. The applicant said he was willing to take another urine test, but refused the blood test.

 

The company, on the basis that it had in place a contract of employment with the applicant and a drug and alcohol policy, summarily dismissed the applicant – without any payment of notice period.

 

There was also mention of the recording of telephone conversations by the applicant and his supervisors unrelated to this matter (eg not happy with working away from home and trying to get his father a job). Frankly, it is not explained why this came into contention, but the Commissioner took it into account. It was also found that the employee was not happy with his employment with the company. Again, I am not sure of the relevance.

 

In any event, the Commissioner found:

 

  • The request for a blood test was a departure from the company’s usual practice of urine sampling.
  • That the person conducting the sample was concerned that there was anything amiss.
  • In the absence of an express policy provision permitting blood testing, and the availability of other testing options which were not of such an invasive nature the request to undertake a blood test for testing for the presence of drugs was not a reasonable request.

 

In relation to the covert (but unrelated) recording, the Commissioner found:

 

“The covert recording …was inappropriate and falls within the meaning of misconduct. It is a factor which weighs against a finding that the dismissal was harsh, unjust or unreasonable”.

 

The applicant secured alternative employment about two to three weeks after the dismissal, but $622.05 per week less than he was being paid by the company.

 

The Commission, in finding against the company awarded compensation in the amount of $8,150.21, which represents the amount Mr Green would have been paid if he had continued to work at Lincon for a period of 8 weeks (including any notice obligation) following the dismissal subtracting 20% for misconduct (being the covert recording).

 

Flowery Flasher dismissed for serious misconduct

Manuel Maciel v Lynch Admin Services Pty Ltd T/A Lynch Group. [2017] FWC 4914, (U2017/4835). Cambridge, C. 28 September 2017.

 

Whilst the facts of this matter were found in the company’s favour – that the applicant did wave his willy at other employees on two occasions on separate days (as caught on CCTV and complaints from four employees) “bluntly and steadfastly denied that he had indecently exposed himself at work at any time”. The issues that pricked my interest were far less puerile.

 

The applicant in this matter was a supervisor for the receivables area of a company described as operates a business described as the largest wholesale floral supplier in the southern hemisphere. He had been employed by the company for some 25 years, having started as a labourer and over the years was promoted to supervisor.

 

Without going too much into the toing and froing of the case, the main points that I found of interest were that:

 

  • The company was represented by a barrister, who in turn was instructed by a solicitor.
  • Although the applicant initially indicated an intention to engage lawyers, he represented himself at the Hearing, and he was assisted by a Portuguese language interpreter.
  • The Commissioner noted in his decision that the applicant subsequently floundered in his self-representation both in his understanding of what was required and the fact that everything had to be carefully checked to ensure that the translation from Portuguese to English and vice versa was accurate.
  • As there was a fundamental dispute about the facts, the Commissioner had to determine if the incident occurred. In the Commissioner’s own words:

factual contest has involved serious misconduct with some level of potential, attendant criminality [indecent exposure]. However, the matter must be determined on the balance of probabilities, the civil standard of proof as it is described, and not the criminal standard, which requires proof beyond any reasonable doubt. It is well established by cases…that the civil standard of proof should be elevated commensurate with the seriousness of the conduct under examination. However, such elevation of the civil standard does not translate into the criminal standard, and a matter remains to be determined on the balance of probabilities albeit that in more serious cases, a more exacting or stringent satisfaction would be required”.

  • Soooo…“on the balance of probabilities” did the incident occur? And the more serious the allegations, the greater the responsibility it is on the employer to prove it.

 

Not surprisingly, the Commissioner found that it was a “righteous” dismissal and notwithstanding by inference the applicant was found to be a degenerate and liar. I cannot help but to wonder why the Commissioner allowed the matter to progress where the applicant was clearly not up to task of defending himself against a legal team in a hostile environment. Whilst this was unlikely to alter the outcome; it does smack of unfairness.