Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - incident in the workplace that raised significant concerns about drug use - lawful and reasonable direction to submit to a drug test - failure to take a drug test - valid reason found - dismissal was not unfair - application dismissed.

• [1] On 21 October 2024 Mr Grachan made an unfair dismissal application to the Fair Work Commission under s.394 of the Fair Wor Act 2009 (Cth), alleging that he had been unfairly dismissed from his employment with Poultry Enterprises. Mr Grachan seeks reinstatement to his former position.

• [2] Mr Grachan was dismissed for failing to submit himself for a drug test following an incident at work on 17 September 2024. For the following reasons I have found that the dismissal was not unfair.

• [3] The facts of the incident on 17 September 2024 are not disputed:

(a) Mr Grachan's day started at approximately 3:30am;

(b) in the afternoon Mr Grachan was a passenger in a work vehicle travelling from the NSW Central Coast back to Poultry Enterprises' Girraween premises in Sydney. Mr Grachan fell asleep on the journey;

(c) when the vehicle arrived a Girraween at approximately 4:15pm Mr Grachan could not be woken;

(d) co-workers tried for 45 minutes to wake Mr Grachan before calling an ambulance at 4:57pm;

(e) paramedics attended the work site, arriving at 5:07pm;

(f) records provided by Ambulance NSW in response to an order for production state that Mr Grachan was unconscious on arrival, was sitting in the front passenger seat asleep and "rousable post verbal and physical stimulation"; and

(g) Mr Grachan refused further assessment, refused observations, and rejected numerous offers to be driven home.

• [4] There is no dispute that Mr Grachan took drugs of some kind on the day of the incident. The Ambulance NSW report includes in the "case history, case nature" field the following entry:

"drug/medication related, unknown substance PT ADMITTED TO TAKING DRUGS HOWEVER REFUSED TO STATE WHICH DRUG."

• [5] In his witness statement Mr Grachan said:

"On 17 September 2024, the following incident occurred (the Incident):

a) I feel asleep as a passenger in the work truck on the way back from the Peats Ridge farm to Girraween. I started that day at about 3:30am. It was a very long day. We finished at about 4pm and had to drive 1.5 hours after that. I had hay fever and a headache earlier during the day, so I took some Phenergan pills after I finished work in the sheds at Peats Ridge.

b) I don't remember falling asleep. I am a very heavy sleeper and extremely hard to wake up at the best of times.

c) All I remember is waking up to paramedics from an Ambulance asking me if I was ok. I told the paramedics I was fine. I saw Stephen Abijohn, Jaspreet the driver of the truck and Harjinder Singh with the paramedics when I was woken up.

d) One of the paramedics asked me if I took anything. I replied to the paramedic that I took some pills, but I did not tell them what medication I took.

e) The paramedics and my colleagues offered me a lift home, but I felt fine, so I said: "I'll be all right". I then walked home."

• [6] At the hearing of this matter Mr Grachan explained why he refused to tell the paramedics what drugs he had taken. Mr Grachan said he was shocked to have been woken by the paramedics and "didn't like the fuss."

• [7] Mr Grachan's conversation with the paramedics was overheard by a co-worker. And Injury and Incident Report was made the next day, noting what Mr Grachan had told paramedics about taking drugs.

• [8] Two days later Poultry Enterprises' HR Department were told of the incident. Mr Joel Robson, Human Resources Manager, contacted Mr Grachan to ask him about the drug he had taken and to direct him to submit to a drug test. Mr Robson's statement in these proceedings included the following:

"...During that conversation, I established that Aaron had taken some type of drug but couldn't establish what it was. During this conversation, Aaron said that he had taken something prior to leaving the farm. I asked him what he had taken. He replied that he had taken some Prescription meds and had a bad reaction to them, which was why he passed out. I asked if he could supply proof of the prescription meds, and Aaron said he couldn't. Aaron then changed his story to that it was another household member's prescription meds, but again couldn't provide evidence of what they were.

I informed Aaron that he would need to take a Drug and Alcohol test in accordance with our policy/Procedure and asked if it could be done by the end of the day.

I then gave him 3 options for the test: either come to the Austral site for the test, I could go to the Girraween site and conduct the test, or he could go to his GP for the test.

He said he had some personal issues to deal with. I informed Aaron of the importance of following lawful instructions, and failure to comply with this direction could lead to a further conversation about his future employment with the company. Aaron agreed to its importance and could spare an hour or 2 to get the test completed."

• [9] Mr Grachan did not take a drug test as directed. On 23 September 2024 Mr Grachan was invited to a meeting to discuss his failure to take a drug test. Mr Grachan did not attend this meeting.

• [10] Mr Grachan's employment was terminated on 30 September 2024.

• [11] In determining whether Mr Grachan's dismissal was harsh, unjust or unreasonable s.387 of the Fair Work Act 2009 (Cth) (FW Act) requires me to take into account the following matters:

(a) whether there was a valid reason for the dismissal related to the person's capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person - whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer's enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Was there a valid reason for the dismissal related to the Applicant's capacity or conduct (s.387(a))?

• [12] In Ash v Chabad Institutions of Victoria Limited [2020] FWCFB 4448 at [30] the Full Bench observed:

"A valid reason under s 397(a) is one that provides a sound, defensible and well-founded rationale for dismissal. In order for conduct which has found to have occurred to constitute a valid reason, it must involve something more than a minor failing or trivial misdemeanour, and must be of sufficient gravity or seriousness to justify dismissal. Factually-established conduct which might, for example, justify the issue of a reprimand or a warning may not necessarily justify dismissal."

• [13] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination (per Edwards v Justice Giudice [1999] FCA 1836 at [7], [1999] FCA 1836; (1999) 94 FCR 561 at 565). The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination (per King v Freshmore (Vic) Pty Ltd [2000] AIRC 1019 at [23]- [24], Print S4213).

• [14] Mr Grachan's evidence about the drug he took on the day of the incident is not satisfactory.

• [15] In his witness statement to the Commission he said he took Phenergan, which is innocent enough. However if he only took Phenergan there is no logical reason why he did not' tell that to the ambulance officers who roused him. Mr Grachan's explanation at the hearing that he did not tell the paramedics what drug he had taken because he "didn't like the fuss", was not satisfactory.

• [16] Mr Grachan told Mr Robson that he had taken a prescription drug. Phenergan is not a prescription drug. If Mr Grachan had in fact taken a prescription drug there was no logical reason not to tell Mr Robson what prescription drug he had taken. Mr Grachan was imprecise about whether it was a drug prescribed to him or prescribed to someone else. Even if there was some credible reason why Mr Grachan had taken medication prescribed to someone else, there was no logical reason to withhold information from Mr Robson.

• [17] It is worth noting that after Mr Grachan refused to tell Mr Robson what prescription drug he had taken, Mr Robson then directed him to take a drug test. There was evidence that in 2023 Mr Grachan had participated in a random drug test. Mr Grachan refused to identify the drug he had taken even once he was directed to take a drug test. If there was an innocent explanation available to Mr Grachan that might have avoided a drug test, logic would dictate that he would have provided Mr Robson with that innocent explanation.

• [18] When giving evidence at the hearing, Mr Grachan was careful to only address certain matters and, it appeared, careful to not give evidence or details about other events and circumstances. By his own admission at the hearing Mr Grachan was also "careful" about the information he provided to Mr Robson at the time.

• [19] Mr Grachan's indication to Mr Robson that he had taken a prescription drug did not provide clarity and instead caused even greater concern about whether Mr Grachan was affected by drugs at work on 17 September 2024.

• [20] The Respondent's Drug and Alcohol Policy includes the following:

"Any use of illicit drugs or misuse of legal drugs will be considered as rendering a person unfit for work. Random drugs screening and/or testing may be carried out of any person reasonably suspected to be adversely affected in any way by drug use to enforce this policy, and offenders subject to immediate appropriate disciplinary action. Possession or trafficking of illicit drugs will result in immediate dismissal and removal from company workplaces."

• [21] Mr Grachan argued that the direction to submit to a drug test was unreasonable because too much time had passed since the incident. He said "if there were drugs in my system, the window for detection for any drugs that Poultry Enterprises alleges I took from the incident on the 17 September 2024 would have passed."

• [22] I do not accept this argument. Poultry Enterprises' concerns were reasonably held. Although the direction should have been given earlier, there still remained a possibility that a drug test might indicate that Mr Grachan was impaired by drugs in a time window that included the day of the incident. The incident on 17 September was significant and, for the reasons outlined above, the information provided by Mr Grachan about the drugs he took was evasive and entirely unsatisfactory. In the circumstances, the direction to submit to a drug test was lawful and reasonable.

• [23] Mr Grachan did not comply with the direction. Mr Grachan said he did not comply with the direction because of personal circumstances at his home. Mr Grachan did provide some details about his personal circumstances and it is not necessary to record any of those circumstances in this published decision.

• [24] I accept that Mr Grachan's personal circumstances were significantly difficult for him, however they were not so difficult that Mr Grachan could be excused from submitting to a drug test in the face of the significant concerns held by Poultry Enterprises about the incident on 17 September 2024.

Was the Applicant notified of the valid reason and given an opportunity to respond to any valid reason related to their capacity or conduct (s.387(b) and s.387(c))?

• [25] Section 387(b) requires the Commission to take into account whether the employee "was notified of that reason." Sections 387(b) and (c) direct the Commission's inquiry to matters of procedural fairness. In general terms an employer should not exercise legal power over an employee to the employee's disadvantage without first affording the employee an opportunity to present a case.

• [26] In context, the inquiry to be made under s.387(b) is whether the employee was "notified" of that reason before the employer made the decision to terminate (per Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60]). The reference to "that reason" is a reference to the valid reason(s) found to exist under s.387(a) and the reference to being "notified" is a reference to explicitly putting the reasons to the employee in plain and clear terms (per Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60]).

• [27] The opportunity to respond to which s.387(c) refers is an opportunity to respond to the reason for which the employee may be about to be dismissed.

• [28] Mr Grachan was given a proper opportunity to respond to the allegations against him.

• [29] By letter on 23 September 2024, Mr Grachan was invited to attend a meeting the next day regarding his failure to submit to a drug test. Mr Grachan did not respond to the letter or attend the scheduled meeting.

• [30] On 26 September Mr Grachan sent an SMS to Mr Robson indicating that he was close to resolving his personal circumstances and that he was ready to return to work.

• [31] According to Mr Grachan the next thing that happened was that he received a termination letter by email at 8:50am on 30 September 2024. Mr Robson's evidence under cross-examination was that the termination letter was not sent until after two or three conversations with Mr Robson took place on 30 September 2024. I prefer Mr Grachan's evidence regarding this sequence of events and I am satisfied that the termination letter was sent prior to any conversations on 30 September 2024. This conclusion is fortified by the fact that the termination letter itself does not refer to any conversations on 30 September 2024 or any response provided on 30 September 2024 by Mr Grachan.

• [32] However, it is important to recognise that Mr Grachan was invited to "attend a disciplinary meeting about potential misconduct" that he did not attend and was given the opportunity to provide a response to the valid reason for his dismissal prior to the dismissal itself.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal (s.387(d))?

• [33] The letter of 23 September 2024 outlined the nature of the meeting and indicated:

"The meeting will take place on 24th September at 2pm in the Austral office with HR present. You are entitled to bring a support person (such as a family member or a friend) with you."

Was the Applicant warned about unsatisfactory performance before the dismissal (s.387(e))?

• [34] As the dismissal did not relate to unsatisfactory performance, strictly speaking this factor is not relevant to the present circumstances.

• [35] Neither party submitted that the size of Poultry Enterprises' enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of Poultry Enterprises' enterprise had no such impact.

• [36] Poultry Enterprises' enterprise does not lack dedicated human resource management specialists.

• [37] There are no other relevant factors to consider in this matter. The dismissal was not harsh or disproportionate to the failure to take a drug test.

Is the Commission satisfied that the dismissal of the Applicant was harsh, unjust or unreasonable?

• [38] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable and therefore an unfair dismissal.

• [39] Mr Grachan failure to take a drug test contravened the Respondent's policy and was a failure to follow a lawful and reasonable direction. Poultry Enterprises was entitled to treat the failure to take the test in the same way as a failing of a drug test.

• [40] In the context of the events of 17 September 2024 and its aftermath, the failure to date a drug test warranted dismissal, particularly considering (1) Mr Grachan was so deeply unconscious at work for more than one hour that it took paramedics to rouse him (2) Mr Grachan's indication to the paramedics who roused him that he had taken a drug but refused to identify the drug or accept any further treatment (3) Mr Grachan's further admission to the HR Manager that he had taken a drug on the day and his unsatisfactory refusal to identify the drug.

• [41] I find that the dismissal of Mr Grachan was not harsh, unjust and/or unreasonable. I make the following order:

1. The application under s.394 of the Fair Work Act 2009 (Cth) made by Mr Aaron Grachan on 21 October 2024 is dismissed.

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