58 While none of these concerns can provide a proper foundation for Ms Gay's refusal to provide a sample, given the statutory scheme here in question, they were undoubtedly relevant to a consideration of whether dismissal was the appropriate way of dealing with this refusal. What view Mr Grant took of these matters is unknown, other than by way of the obvious - if he took them into account, he plainly came to the view that they were of insufficient weight to lead him to exclude imposing the heaviest available penalty for the refusal to provide the required sample - dismissal.
59 On her evidence Ms Gay had no objection to random testing, but feared she was being 'set up', in this instance. There may or may not have been a proper foundation for such concerns. Undoubtedly, if they had a basis, the best way for Ms Gay to have dispelled that attempt would have been to provide the sample and as Connor C pointed out, then raise issues about the test. Such concerns plainly could not provide a proper basis for the refusal to undertake the test.
60 People do not, however, always behave entirely rationally when confronted with new and unexpected circumstances. On her unchallenged evidence, Ms Gay was shocked and emotionally distressed when confronted with the requirement to submit to targeted testing for drug use. She had this reaction, having herself recently alerted the Governor of the centre to the threat made by a former inmate that an allegation would be made that she was a drug dealer. All she could think about was the allegation that had been made that she was involved in criminal conduct; that she needed to clear her name and that submitting to the test at the centre would make that allegation public. Plainly, as was submitted, Ms Gay's response was not entirely rational, but her explanation of her conduct was a matter to which the decision maker had to pay regard, in determining the appropriate penalty for her misconduct.
61 All of these matters were relevant to the question of whether Ms Gay should have been dismissed, rather than some lesser penalty being imposed, particularly having in mind the short period of time in which this policy was in operation. So, too, was a consideration of Ms Gay's 14 years of service with the Department and the consequences of her dismissal for her personal circumstances. The fact that the policy itself did not provide that a refusal to submit to a test would automatically lead to dismissal, also required consideration, as did the fact that the policy provided that, even if a positive result followed a drug test, dismissal would not necessarily follow.
62 The evidence in these proceedings also showed that when Ms Gay was asked to meet Mr McLintock, she enquired whether she needed to have a union representative present. Mr McLintock told her that was a matter for her and that she should decide, once she knew the purpose of his visit. Mr McLintock adopted this approach, because understandably, he had privacy concerns. Ms Gay never asked for such assistance, despite having the purpose of the visit explained, as well as the consequences of her refusal to provide a sample - suspension and other disciplinary action - explained to her. Ms Gay was given the opportunity to reconsider her refusal, with Mr McLintock also explaining to her that she would not later be given another opportunity to provide the required sample, because 'some drugs have a very short lifespan in the system, a person could refuse the test today and then provide a sample in a few days or a week, knowing that traces of a drug will no longer be present in their system'.
63 Given her approach, Ms Gay did not take the opportunity to seek advice from her union, at any time before she was suspended. That took over an hour to arrange after her final refusal. Undoubtedly, had she done so, Ms Gay would have been advised of the Union's support for this important policy and may then have adopted a different approach to her refusal to undertake the test.
64 The question which thus arises on appeal is this. Was the Commissioner's finding that Ms Gay's dismissal was not harsh, unreasonable and unjust, properly open on the evidence in this case, where the Department did not meet the evidentiary onus falling on it to show that Ms Gay was required to provide a targeted sample, consistently with its own policy; where the decision maker was not called to explain why the decision was made to dismiss Ms Gay, rather than to impose one of the other available less serious penalties and where even the matters taken into account by the decision maker in coming to that decision, were not put in evidence. That decision was required to be made, most curiously in circumstances where the Department led no evidence at all to show the fairness of the decision made to dismiss Ms Gay in the particular circumstances of her refusal.
65 The reasons for the decision to dismiss have, in reality, never been revealed. The letter advising Ms Gay of her summary dismissal provided no reasons for that decision. Even what was taken into account in determining that dismissal was warranted in this case, was not put in evidence.
66 Nor was the challenge to the target testing being required in accordance with the policy met. While neither the statutory scheme nor the policy requires that an employee be given an opportunity to 'confront' their accusers per se, if the fairness of a decision to dismiss is challenged in proceedings such as this, by calling into question that there was 'verified intelligence or compelling circumstantial evidence indicating that the employee may be affected by alcohol whilst on duty or engaged in the misuse of drugs', that challenge must be met. (For example, the question may arise as to whether the intelligence was 'verified'.)
67 On all of the evidence, we are satisfied that the conclusion that no ground for intervention in the decision made to dismiss Ms Gay from her employment had been established, was in error. The circumstances of this case could not fairly lead to the imposition of the most serious of the available consequences of Ms Gay's refusal. That decision deprived Ms Gay of her employment after 14 years of, on the evidence, unblemished service. That was a disproportionately harsh penalty for Ms Gay's single refusal to provide a sample in the circumstances of this case. Those circumstances included the newly introduced policy being implemented for the first time, where, if a sample was provided, even a positive test may not have not resulted in dismissal.
68 Finally, as to the question of the validity of the authority under which the sample was required, we note that the relevant regulations provide:
249B Appointment of authorised persons
(1) The Commissioner may, by instrument in writing, appoint any person to be an authorised person for the purposes of Division 5 of Part 11 of the Act.
(2) The Commissioner may appoint as an authorised person:
(a) a person by name, or
(b) a person holding office or acting in a particular rank or office, from time to time, by reference to the title of the rank or office concerned.
(3) The Commissioner must furnish persons appointed under subclause (2) (a) with certificates of their appointment as authorised persons.
(4) An authorised person appointed under subclause (2) (a) must, if requested to do so, produce the certificate of appointment to any member of correctional staff required by the authorised person to do any thing under Division 5 of Part 11 of the Act.
(5) The Commissioner must maintain a list of the titles of the ranks or offices referred to in subclause (2) (b).
(6) An authorised person appointed under subclause (2) (b) must, if requested to do so, furnish proof that the person holds, or is acting in, the relevant rank or office to any member of correctional staff required by the authorised person to do any thing under Division 5 of Part 11 of the Act. Such proof may include, but is not limited to, a Departmental identification card.
249F Testing correctional staff
(1) A member of correctional staff may be tested under Division 5 of Part 11 of the Act whether or not there is any suspicion that the staff member has recently consumed alcohol or used a prohibited drug.
(2) The result of any such test may be used for the purposes of any disciplinary matter.
249P Certificate evidence of appointment of authorised person
For the purposes of any disciplinary matter involving a contravention of a provision of this Part or in proceedings for an offence under this Part, a certificate purporting to be signed by the Commissioner and certifying that the person named in the certificate was an authorised person at a particular time is prima facie evidence of the particulars certified in and by the certificate.
249R Refusing to comply with a requirement under Division 5 of Part 11 of the Act
(1) A member of correctional staff must not refuse:
(a) to undergo a breath test, or
(b) to submit to a breath analysis, or
(c) to provide, or enable to be taken, a non-invasive sample from the staff member, or
(d) to comply with any other requirement of or under Division 5 of Part 11 of the Act,
in accordance with a direction given under Division 5 of Part 11 of the Act by an authorised person.
(2) This clause does not prevent a member of correctional staff so refusing if the staff member is unable on medical grounds to do otherwise.
69 In evidence before the Commissioner was the certificate, signed by the Commissioner, appointing Mr McClintock an authorised person, as reg 249B contemplated. On the evidence Mr McClintock showed Ms Gay that certificate, as well as the document authorising him to administer her targeted drug test. That document was no doubt an administratively convenient way in which to give Mr McLintock his instructions, which he was then able to show Ms Gay and Governor Heffernan. It was plainly not, however, a document which fell within the provisions of reg 249P, which is concerned only with 'a certificate purporting to be signed by the Commissioner and certifying that the person named in the certificate was an authorised person at a particular time'. Mr McLintock had such a certificate. That was a certificate to which regard could be paid in the disciplinary proceedings which followed upon Ms Gay's refusal to submit to the test.
70 In the proceedings before the Commission, the matters dealt with in the document directing Mr McLintock to administer Ms Gay's test, however, could not be proved simply by the tender of the document. In order to establish that Commander Kelly had received 'verified intelligence or compelling circumstantial evidence indicating that the employee may be affected by alcohol whilst on duty or engaged in the misuse of drugs' some other evidence had to be called. Regulation 249P was of no assistance in that regard.
Orders
71 For the reasons given the orders made at the conclusion of the hearing were: