Summary dismissal for breach of employer drug policy not unfair

The promotion of workplace safety was key to a recent decision of the Fair Work Commission (FWC) regarding summary dismissal of an employee for offending her employer’s drug and alcohol policy. This decision follows a recent trend in the FWC of upholding employers’ zero tolerance safety rules.

A dump truck operator on a mine site was dismissed for serious misconduct after she breached a ‘cardinal rule’ of her employer’s drug and alcohol protocols that no employee attend the workplace under the influence of a non-approved drug. The employee had tested positive to the presence of methylamphetamine 4 times over the reporting cut-off level in a random drug and alcohol test.

The employee lodged an unfair dismissal application, arguing that her dismissal was harsh, unjust or unreasonable for reasons including that:

  • the employee felt “perfectly well” upon commencing her shift and “did not feel” under the influence of any drug on the day of testing;
  • the employer was required to prove that the employee was under some sort of influence of the drug and had not done so; 
  • the employee had been the victim of a drink spiking incident the previous weekend, (being her explanation for the positive test result); and
  • the employee was a competent operator with no previous performance issues.

The employer urged for dismissal of the application, arguing that any decision in the employee’s favour would diminish the safety of its mineworkers. The employer stressed the importance it placed upon the safety of its workforce, including by enforcement of cardinal rules relating to drugs and alcohol. The employer relied upon expert medical evidence to discount the employee’s version of events “designed to disguise her own recreational use of methylamphetamine”. The employer further submitted that its expert medical evidence was not intended to assess the employee’s level of impairment, but to unequivocally establish that the employee must have been under the influence of methylamphetamine when she attended for work.

Despite the employee’s plea for reinstatement and promise to undergo ongoing drug testing if reinstated, the FWC dismissed her application stating that “the nature and severity of [the employee’s] misconduct has provided justifiable, valid reason for summary dismissal”. The FWC accepted the employer’s expert medical opinion as “strong evidentiary support” for summarily dismissing the employee, saying there was “little, if any evidence” to support the employee’s version of events.

This case follows a line of recent cases where the FWC has reinforced the requirement for employees to comply with employer drug and alcohol policies, validating employer action in dismissing employees for drug use.

In September last year, the Full Bench of the FWC upheld an employer’s zero tolerance approach to drug use by overturning the reinstatement of a ferry master who claimed he was unfairly dismissed for testing positive to marijuana after a crash (Harbour City Ferries Pty Ltd v Christopher Toms [2014] FWCFB 6249).  In that case, the Full Bench found it irrelevant that the employee did not suffer impairment from his drug use, or that the drug use did not cause the accident.  Accepting that the employer required compliance with its drug-free policy without discussion or variation, the Full Bench found the real misconduct to have occurred when the employee agreed to take a shift after smoking marijuana, viewing this as “deliberate disobedience, [by] a senior employee of a significant policy”. As the Full Bench put it, ” an employer charged with public safety … does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor … What it wants is obedience to the policy.” 

Similarly, in October last year, the FWC upheld the dismissal of a maintenance employee who tested positive for drug use whilst working on “safety sensitive aviation activities” at Qantas’ baggage carousels, finding the breach constituted serious misconduct – partly due to the reputational risk to the employer  (see Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310).

For employers, addressing drug and alcohol use in the workplace is about managing risk – particularly in light of Australia’s strict work, health and safety laws. These decisions will no doubt reassure those employers wishing to advocate for a “zero tolerance ” policy approach.

Tara Leah Cunningham v Downer EDI Mining Pty Limited [2015] FWC 318 (14 January 2015)

Confidentiality should come as no surprise to Employee Support Persons

A recent Fair Work Commission decision serves as a timely reminder about confidentiality obligations of employee support persons in disciplinary meetings.

A union site delegate landed himself a final written warning when, after attending a disciplinary meeting as the support person for a fellow employee, he took it upon himself to forward correspondence regarding the employee to his union and members of his work group. The employer issued a final written warning on the basis that the employee had breached confidentiality in circulating the correspondence.

The union applied to the Commission to deal with the matter under the dispute resolution procedure in the employer’s enterprise agreement. The union submitted that the final written warning was “harsh and disproportionate” in all the circumstances and should be removed from the employee’s employment record.

The union relied on a number of matters to argue why the final written warning was unjustified. These included that the material contained in the correspondence could not reasonably be considered “confidential”, that the employee was not told that it was confidential and that the employee had not previously been subject to disciplinary action. The union also argued that the employer did not follow its “three tier” disciplinary structure because it ignored the first two stages in giving the final written warning. 

The employer counter-argued that there was nothing in its enterprise agreement that mandated a three step process be followed as part of an employee’s disciplinary procedure. The employer also argued that the fact that the employee did not believe the content of the correspondence was confidential, did not diminish the fact that the letter that he had forwarded on to others was marked “confidential” and in the employer’s view contained confidential information in relation to a disciplinary process.

Taking into account the employee’s unblemished record, the lack of evidence to suggest his actions were directed to intentionally harm the employer and the fact that the correspondence did not contain ‘commercial-in-confidence’ information, the Commission held that the final written warning was harsh and warranted review. The Commission did, however , hold that a written warning was appropriate, acknowledging that the employee had gone well beyond the role of a support person and had instead taken on a role “much more akin” to a union site delegate. As an experienced union delegate, the employee should have “been aware of the processes involved in an individual’s disciplinary procedure, and his responsibilities as part of that process.”

This decision highlights the importance of employers making sure that any person in the role of support person understands that an investigation into employee performance or conduct issues are private matters between the parties, and that the confidentiality of those processes should be respected at all times.

CFMEU v MSS Strategic Medical and Rescue [2014] FWC 4336 (5 September 2014)

Nothing wrong with a bit on the side…

In a somewhat surprising Fair Work Commission decision, a majority Full Bench has upheld an unfair dismissal verdict in circumstances where the employee was dismissed for running a business outside of work hours – selling products that were competitive to her employer.

The employee was employed by The Body Shop in an administrative role when she also became a consultant (that is, an independent contractor) to PartyLite – a direct sales “party” business selling scented candles, oils and other products. The employee’s role involved promoting PartyLite via a stall at a travelling expo. She sought hosts to conduct parties at which PartyLite products would be sold and also sought to sell these products directly through her Facebook page. Upon discovering these activities and viewing PartyLite as a competitor of The Body Shop, the employee was directed to end her consultancy. When she refused, arguing that no conflict existed because The Body Shop’s business was in a different “market” to PartyLite, the employee was summarily terminated.

In dismissing the employee, The Body Shop relied upon a conflict of interest clause in the employee’s contract which stated [i]t is considered an employee cannot be totally committed to The Body Shop if working for a competitor. Thus, whilst working for The Body Shop employees cannot simultaneously work for any other enterprise this Company considers a market place competitor; to do so is considered misconduct and may lead to termination of employment“.

At first instance, the FWC held that the two businesses were not in competition. The employee was found to have been unfairly dismissed, and compensation of $20,000 was awarded.

Unfortunately, The Body Shop had no better luck on appeal with the majority Full Bench also finding that the employee had not infringed the “conflict of interest” clause, and also that she had not breached more general, implied obligations of fidelity.

This was because:

  • she “was not working for PartyLite” but “was running her own business“;
  • there was no evidence to suggest that she had used any of her employer’s information to run her own business – she worked in administrative capacity for The Body Shop, and not in relation to the sale of product; and
  • there was only a “minor” overlap in the product ranges of the employee’s own business and The Body Shop. Although, Deputy President Hamilton dissented.

 

This case suggests that an employer’s concern that an employee’s external activities may give rise to a conflict (even if there is no conflict at the time of discovery) will not be sufficient grounds for termination – at least in the context of unfair dismissal laws. The FWC’s focus on the employee’s status as a contractor was pivotal in this case, because of the way that the conflict of interest clause in the employee’s contract was drafted. It is possible that the case may have had a different outcome if the conflict of interest clause prohibited working for or providing services to another entity in any capacity. Employers should be careful to review their conflict of interest clauses and policies following this case.

Adidem Pty Ltd T/A The Body Shop v Suckling [2014] FWCFB 3611 (30 June 2014).

Age Discrimination in Employment – What’s the State of the Law?

The Federal Government’s recent proposal to increase the age pension age to 70 by 2035 has generated a great deal of discussion, not least from employees and employee organisations about difficulties already faced by mature age workers in obtaining and retaining work. The Federal government proposes to meet these concerns in part by employer cash incentives for hiring long term unemployed jobseekers aged 50+.

But should employers need cash incentives to employ mature age workers? Earlier this month we explored the benefits of attracting and retaining mature age workers with Sageco, a mature age workforce specialist consultancy firm.

On the flipside, employers already face hefty penalties for breaching laws that prohibit age-based discrimination in the area of employment. In this post, we summarise some of the key laws relating to age discrimination in the workplace.

Whilst there are some exceptions to the rule, employers in Australia generally cannot discriminate against employees (or job applicants) on the basis of age. Australia did away with the concept of compulsory retirement long ago, although there are a small number of occupations where age limits apply (for example, judicial officers). Prohibitions against discrimination on the basis of age now exist in federal and state anti-discrimination laws, and also under the Fair Work Act.  The Fair Work Act now also contains specific provisions allowing employees aged 55 and above to seek flexible working arrangements.

Protections against age discrimination in the Fair Work Act are contained within general protection provisions which prohibit adverse action based on, amongst other things, age (see section 351). In April 2014, the Office of the Fair Work Ombudsman succeeded in its prosecution of an employer for breach of these protections.

The employee concerned was a long-serving restaurant employee who took a period of long service leave in April 2011. Upon his return to work, the employer told the employee that he would work part-time. Shortly after, the employer issued the employee with a letter informing him of its plans to terminate his employment on his 65th birthday, stating that it was “the policy of the company that we do not employ any staff that attains the retirement age, which in your case is 65 years“. When the employee queried why his effectiveness as a food and beverage attendant at 65 years of age was less than his effectiveness at age 64, the employer advised the employee that it did not wish to enter into further correspondence with him.

The Court found against the employer, ordering payment of $10,000 to the employee, in addition to substantial monetary penalties against the employer and its two directors: Fair Work Ombudsman v Theravanish Investments Pty Ltd & Ors.

The conduct in this recent case was overt. However, unlawful discrimination may also be indirect or unintentional. In Hopper & Ors v Virgin Blue Airlines [1] a requirement that candidates demonstrate “Virgin flair“, which was described as including a candidate’s “ability to have fun” was found to discriminate on the basis of age where the recruiters themselves were young and gave a bias to “fun” based on their own age.

Employers may also run foul of their obligations by making assumptions about what an employee can or cannot do based on age. In Webforge Australia Pty Ltd v Richards [2] an employer was found to have unfairly dismissed a 65 year old employee after deciding that it would not be possible to train the employee in new technology to be used in his stock controller position. The then Australian Industrial Relations Commission disagreed, and awarded the employee the maximum monetary compensation available for unfair dismissal (26 weeks’ pay).

Employers need to be mindful about how their recruitment, training and termination procedures may impact applicants and employees based on age. Employers should also genuinely assess whether biased assumptions based on age have any bearing upon important workforce decisions, and address these assumptions and biases objectively when they arise. Breach of anti-discrimination and general protection laws may attract orders for compensation, or, where brought under the Fair Work Act, monetary penalties, including for managers or directors knowingly concerned in any contravention.

[1] [2005] QADT 28.
[2] [2005] WAIRC 02164.