Colin Wright v AGL Loy Yang Pty Ltd.  FWC 1941 (U2015/12039). WATSON, VP. 11 MAY 2016.
This matter proceeded by way of “determinative conference.” At the conference the parties advised that had reached an agreement that if Mr Wright:
- Consumed synthetic cannabis prior to, or during, his journey from work on 27 August 2015, following the completion of his shift on that morning his dismissal would stand; and
- Did not consume synthetic cannabis, AGL conceded that there would be no impediment to Mr Wright returning to work.
This was an interesting scenario in that the incident that led to the dismissal (ie the smoking of synthetic cannabis) was alleged to have occurred at the end of Mr Wright’s shift.
By way of background:
- Mr Wright was employed by AGL as a Mine Operator at Loy Yang, a power station and coal mine in the Latrobe Valley.
- He had been in that employment since August 2012 when AGL became the operator of Loy Yang A. However, at the time of the dismissal he had been continuously employed at the power station and coal mine by various operators of Loy Yang A for 30 years.
- Mr Wright’s duties included the operation of large mining plant including dredgers, bulldozers, stackers and conveyor systems. Further duties also included the operation of the control centre, the isolation and ‘making safe’ of plant and conducting inspections and reporting on issues.
- AGL had policies relating to Code of Conduct, Alcohol and Other Drugs Management Policy.
Mr Wright was dismissed from his employment on 17 September 2015. AGL terminated Mr Wright’s employment following an investigation and show cause process concerning an incident whereby AGL determined that Mr Wright had used synthetic cannabis in the car park prior to leaving work on the morning of 27 August 2015. The use of synthetic cannabis on 27 August 2015 is disputed by Mr Wright.
Evidence was given concerning previous incidents involving Mr Wright’s use of synthetic drugs in the workplace, including on 28 March 2013 and 8 January 2015:
- 28 March 2013 Mr Wright was observed in a severely impaired state by employees. He started to hallucinate and felt convulsions and was unable to speak. During the investigation that followed, Mr Wright advised that this was as a result of a bad reaction to the synthetic substance combined with the consumption of prescription medication. No formal disciplinary procedures were implemented, however AGL advised Mr Wright that it was unacceptable to be at work while affected by an incapacitating drug.
- 8 January 2015 Mr Waterhouse found Mr Wright in the toilet holding a smoking device, a water bong. Mr Wright accepts that he was smoking synthetic cannabis with the bong. As a result of this incident, AGL issued a final written warning to Mr Wright on 29 January 2015. The letter indicated that Mr Wright was required to complete a residential drug and alcohol rehabilitation program for a minimum of 10 weeks. It was stipulated that Mr Wright would meet the costs of the rehabilitation program, however AGL ended up paying for the majority of the costs.
- After Mr Wright completed the rehabilitation program a return to work plan was prepared. Mr Wright signed this return to work plan, acknowledging that failure to adhere to the requirements of the plan may result in the termination of his employment.
- Mr Wright was involved in a car accident on the morning of 27 August 2015 after concluding a night shift.
- He had drove through the front of three houses, and told police that he finished work and decided to smoke a synthetic substance before driving home. The police subsequently advised AGL.
- One of the attending police officers photographed a “smoking pipe” which was located in the centre console of Mr Wright’s vehicle.
Mr Wright evidence was:
- On 27 August 2015 he worked a 12 hour night shift that finished at about 6.00 am. He says that it was a difficult shift because whilst driving down into the mine with his shift partner passed out while sitting next to him. Mr Wright could not get a response from him. Mr Wright arranged for medical assistance and resumed his work after the ambulance arrived.
- He remembered feeling tired by the end of the shift. He believes this was due to a combination of the stressful events concerning his shift partner and the fact that he had only recently returned to working night shifts.
- Mr Wright stated that when he arrived in the car park, he went directly to his car, got in and drove off.
- The road was very wet and visibility was poor.
- He went through the roundabout and then ploughed into the yards of the two closest houses, going through their fences as he did so. He then hit a veranda, causing the roof to collapse and kept going until he hit another fence.
- He has a vague recollection of seeing people milling about him at a time that he believes must have been after the accident. He remembers seeing people in uniforms but cannot recall whether they were police, ambulance or other emergency personnel.
- Has no recollection of having a conversation with anyone at the scene of the accident. If he did speak to someone, he does not know what he said. He could not recall telling the police officer that he had smoked synthetic marijuana.
On the evidence, the most probable cause of the accident was fatigue, given that it was established on the evidence that Mr Wright had very recently resumed night shifts, it had been a difficult shift, and fatigue was one possible cause posited by Mr Wright’s treating doctor at the hospital, and was accepted as a possible explanation by police.
The sample of Mr Wright’s blood taken at the hospital was tested and the results were negative for deltra-9-tetrahydrocannabinol, as well as other drugs.
In an attempt to establish that he had not taken synthetic cannabis Mr Wright did not obtain a test for the presence of this substance until 8 September 2015, well after the incident and his discharge from hospital. He was also aware of difficulties in detecting these substances.
The VP finding:
“In all of the circumstances I find that on the balance of probabilities Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. I find that his statements to the police at the accident scene are a reliable record of the circumstances and that his denials of drug use to AGL and in his evidence before the Commission should not be accepted.
“Given the agreement of the parties that the determination of this issue will essentially determine the application, I proposed to issue an order dismissing Mr Wright’s unfair dismissal application”.
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