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Drug dismissal upheld despite lack of procedural fairness - 30 January 2017

In a recent decision, the Fair Work Commission upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite being denied procedural fairness.

In the matter of Albert v Alice Springs Town Council, Commissioner Nick Wilson held that the worker was fairly dismissed, despite his employer failing to give him an opportunity to respond to the drug test results.  The Commissioner’s reasoning was that the seriousness of the worker's misconduct outweighed any procedural faults in his dismissal as well as his belief that it wasn't obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July last year, the worker was involved in a traffic accident when the council truck he was driving was hit side-on by a car that failed to give way at an intersection.  Immediately after the incident, the worker was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.  The extremely high reading led the Council to summarily dismiss the worker for serious misconduct stating he represented a danger to himself, other workers and the public.

The worker filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

In reaching this decision, Commissioner Wilson referred to the finding in Farquharson v Qantas Airways Ltd, in which the Full Bench of the Industrial Relations Commission held that in circumstances in which a dismissal for misconduct has been found to be justified, it will be rare for a defect in an internal disciplinary process that preceded the dismissal to justify a conclusion that the dismissal was nevertheless harsh, unjust or unreasonable.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker.  Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Our practical Tips

  • Usually in the unfair dismissal jurisdiction, failure to apply procedural fairness before dismissing an employee will, much more often than not, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.
  • While, in very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, we generally recommend a fair process anyway.  There is plenty of tension in previous decisions of the Commission where form seems to have won out over substance.  The cost and delay associated with conducting a fair process is generally a trivial one compared to the cost and expense of managing, and potentially losing, an unfair dismissal claim.  It can also help to overcome attempts by a dismissed worker to suggest that the decision to dismiss was somehow affected by unlawful considerations, further aggravating the employer’s litigation exposure.
  • Part of any fair process involves setting expectations in the first place.  So far as drugs and alcohol are concerned, having a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result.

HopgoodGanim Lawyers are experts in performance management and are at the leading edge of legal developments relating to the management of drug and alcohol issues for workplaces.  For further information or discussion, please contact our Industrial and Employment Law team. 


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