De Simone Consulting Pty Ltd v Ison

CATCHWORDS: Appeal - application for leave to appeal and appeal - dismissal - policy on alcohol and drugs - lawful direction to undertake a targeted drug test - refusal to undertake drug test - new policy restricting targeted testing to verified intelligence or compelling circumstantial evidence - no evidence of either evidentiary onus not met - no evidence of why decision to dismiss made rather than other available sanctions - dismissal unfair - leave to appeal granted - appeal upheld - reinstatement ordered on specified conditions

Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: Crimes (Administration of Sentences) Regulation 2001 Industrial Relations Act 1996 Occupational Health and Safety Act 2000

De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 CASES CITED: Gay v Department of Corrective Services [2005] NSWIRComm 1212 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 Perrott v XcelleNet Australia Ltd (1998) 84 IR 255

APPELLANT: Mr A Hatcher of counsel SOLICITORS: Jones Staff & Co LEGAL REPRESENTATIVES:

RESPONDENT: Ms E Brus of counsel

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: Walton J, Vice-President Schmidt J Ritchie C

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS' ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES (ON BEHALF OF SANDRA GAY) AND DEPARTMENT OF CORRECTIVE SERVICES

Application by Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales (on behalf of its member Sandra Gay) for leave to appeal and appeal against a decision of Commissioner Connor given on 22.12.2005 in matter no. IRC 7154 of 2004

REASONS FOR DECISION OF THE FULL BENCH [2006] NSWIRComm 147

1 On Tuesday 12 April, the Full Bench ordered the reinstatement of Ms Gay to her former employment, indicating that the reasons for the orders made would be published shortly. These are reasons for our decision. 2 The orders were made in proceedings concerning an application for leave to appeal and appeal, from a decision given by Connor C on 22 December 2005 pursuant to s 89 of the Industrial Relations Act 1996 ('the Act'). (See Gay v Department of Corrective Services [2005] NSWIRComm 1212.) In November 2004, Ms Gay was dismissed from her employment for refusing to provide a biological sample for testing for the presence of prohibited drugs, as she had been directed by the Department, in accordance with the requirements of s236F of the Crimes (Administration of Sentences) Act 1999. Connor C refused the application brought by Ms Gay's union, the Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales ('PSA'), in which reinstatement in her former employment was sought. The Commissioner concluded that no ground for intervention in the decision to dismiss her from her employment had been established. 3 In June 2004, the Department of Corrective Services had introduced a new policy for drug and alcohol testing of staff, consistently with the Crimes (Administration of Sentences) Act. Section 236F(1) of the Act, which was inserted into that Act in August 2004, provides: (1) An authorised person may require any member of correctional staff who is on duty, or who is present at the staff member's place of work and about to go on duty: (a) to undergo a breath test, or submit to a breath analysis, for the purpose of testing for the presence or concentration of alcohol, or (b) to provide, or enable to be taken, a non-invasive sample from the staff member for the purpose of testing for the presence of prohibited drugs, in accordance with the directions of the authorised person and the regulations. (2) The selection of a member of correctional staff for testing under subsection (1) may be conducted on a random or targeted basis. (3) Without limiting the generality of subsection (1), if an incident occurs in which a person dies or is injured while in the custody of a member of correctional staff, or as the result of the discharge of a firearm by a member of correctional staff, an authorised person may require any member of correctional staff involved in the incident: (a) to undergo a breath test, or submit to a breath analysis, for the purpose of testing for the presence or concentration of alcohol, or (b) to provide, or enable to be taken, a non-invasive sample from the staff member for the purpose of testing for the presence of prohibited drugs, in accordance with the directions of the authorised person and the regulations. (4) An authorised person may require the staff member to remain on the premises where the test is to be conducted until the test is completed. (5) A requirement pursuant to subsection (3) to undergo a test or to provide a sample is to be made by the authorised person as soon as practicable after the incident concerned. 4 The Departmental policy which implemented this provision in a practical sense, was introduced in a series of phases, in consultation with the PSA. It provided for urine samples to be taken:

Where the Commander, Security and Investigations is in possession of verified intelligence or compelling circumstantial evidence that an employee may be affected by alcohol whilst on duty or be engaged in drug misuse, the Commander may direct that targeted breath and urine testing to be conducted.

5 The policy provided that an employee who refused to obey a direction to provide a urine sample, or to undertake a breath test, would be subject to disciplinary action for misconduct. 6 The appeal raises questions as to the operation of the Crimes (Administration of Sentences) Act, the Crimes (Administration of Sentences) Regulation 2001 and the Department's policy, as well as raising the question of whether dismissal was a disproportionate response to Ms Gay's refusal to undertake a targeted drug test. 7 Leave to appeal was sought on grounds that included that compulsory drug testing is a significant infringement of a person's rights and that there is a public interest in ensuring that there is a transparent and fair procedure for conducting such testing on employees; there is little guidance in the Regulations made under the Crimes (Administration of Sentences) Act or the Departmental procedures, in relation to what is 'verified intelligence' of an employee being engaged in the misuse of drugs and that as more workers are subject to drug testing, there is a public interest in the appropriateness of applying the sanction of dismissal for a refusal to take a drug test to be considered. The decision appealed against

8 In his decision, Connor C noted the evidence as to the operation of the Department's policy in relation to drug consumption, as opposed to alcohol misuse: 15 Drug consumption will be treated differently, however. A urine sample, of course, will take longer to determine since the sample must be sent to a laboratory. Where a urine sample is taken and a positive result for an illegal substance or a prohibited drug is detected, the employee will be required to attend for assessment by a counsellor but disciplinary action, including dismissal, and possible criminal charges laid by the police, may follow.

16 Any employee who refuses a direction to undertake a breath test or provide a urine sample will be subject to disciplinary action. The Department regards an employee who refuses testing to be guilty of misconduct. 9 The Commissioner accepted that the Department's policy involved an intrusion into an employee's privacy, but noted that:

17 ... it must be considered in the context not only of the obvious need to ensure gaol security and to ensure that correctional officers are not compromised in their relationship with inmates but also in the light of the occupational health and safety requirements placed on the Department. Mr Woodhouse explained in his evidence that he believed that inmates of correctional institutions would be fairly capable of identifying any prison officer who may have a problem in that regard and to exploiting it to their own advantage. Furthermore, the occupational health and safety issue flowing from drug and alcohol use in the workplace generally should not be dismissed as an important matter. As the Full Bench of the Western Australian Industrial Relations Commission (Fielding SC, Cawley and Beech CC) commented on a drug and alcohol programme in BHP Iron Ore Pty Limited v. Construction , Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 at p.168: "... As ... the union so ably argued, there can be no doubt that the programme involves an intrusion into the privacy of individual employees. However, the current standards and expectations of the community concerning health and safety in the workplace, as evidenced by legislative prescriptions and judgments of courts and industrial tribunals, are such that there will, of necessity be some constraints on the civil liberties at times and, in particular, an intrusion into the privacy of employees... " 10 The Commissioner also noted that the policy was introduced on 4 June and Ms Gay's assertion that she was not aware of the memorandum announcing its introduction at the time of her suspension on 20 August. Connor C concluded on the evidence:

19 ... In any event, I am satisfied that Ms Gay was sufficiently aware, at least in fairly general terms, of the nature of the Department's alcohol and drug policy. She certainly understood the amnesty and the distinction between random and targeted testing.

11 The Commissioner described the circumstances that led to Ms Gay's dismissal. She had been employed as a correctional officer since 1990, having been promoted to the position of senior correctional officer, where she had acted in the rank of assistant superintendent, before taking a drop in rank when she pursued a transfer in 1999, for personal reasons. On 20 August 2004, Ms Gay was required to provide a urine sample by Mr McClintock, who had an authority under Regulation 249B, to conduct:

... breath tests, breath analyses or other tests (such as urine tests) on a member of correctional staff for the purpose of testing for the presence and/or concentration of alcohol and/or prohibited drugs ... 12 Mr McClintock was authorised to conduct a drug test on Ms Gay, described as:

... an employee identified by verified intelligence or compelling circumstantial evidence concerning the use of alcohol or other drugs ... 13 The authority directed Ms Gay that she:

... must submit to a breath test and/or provide a urine sample for testing when directed by the Commander (of) Security and Investigations or any person authorised by the Commander ...

14 Connor C noted the challenge to the lawfulness of Mr McClintock's authorisation, it being submitted that it was for the Department to establish the legitimacy of the authorisation. The Commissioner concluded that

24 ... in my opinion, in view of the operation of Reg.247P, the onus actually must rest with Ms Lowson to rebut the presumption which flows from the prima facie position, ie that Mr McClintock was lawfully authorised to conduct the test on Ms Gay.

15 The reference to reg 247P was erroneous. It is reg 249P, which the Commissioner had earlier set out, to which reference must be made. It provides:

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 ... 16 The Commissioner noted that on 20 August Ms Gay was shown the authorisation, was informed that she was required to give a urine sample, because of 'verified intelligence', but was not told, when she asked, what that intelligence was. That was not information of which those conducting the test were aware. That information has never been provided to Ms Gay and was not revealed in the proceedings below. Ms Gay also asked what would happen if she refused to provide the sample. The Commissioner found: 27 ... Mr McClintock informed her that if she refused to take the test she would be immediately suspended from employment, not paid for the balance of her shift and be dealt with as a disciplinary matter. Mr McClintock told Ms Gay that he could not predict the outcome for her but that she should appreciate that the Department would treat her refusal as a serious issue. Ms Gay considered her position and decided that she would refuse to provide a urine sample and that she "...was going to take the hard road to clear her name...". Mr McClintock pointed out to her that since some drugs had a very short life span in a person's body, she would not be given another chance to supply a sample. Ms Gay did not resile from the position she had taken. Mr McClintock explained that taking the test would put an end to the allegations without any further trouble but Ms Gay responded: "Yes I know but I have decided to do it this way." Mr Heffernan also pressed Ms Gay to take the test, asking her: "Is there anything I can say or do that might convince you to take the test?" Ms Gay did not change her mind. Letters were prepared for Ms Gay informing her of the allegation of misconduct, suspending her from duty immediately and asking her to show cause why her salary should not be withheld.

17 Ms Gay was suspended, being informed by letter of the allegation of misconduct. The letter asked her to show cause why her salary should not be withheld. She responded by letter of 23 August, explaining that her refusal was due to her ignorance of the new policy; shock at being targeted on the basis of verified intelligence and the stigma of being taken to provide the test. The Department determined to suspend Ms Gay on ordinary pay. 18 The misconduct involved in refusing to provide the required sample was then investigated by the Department. At an interview on 7 September, Ms Gay provided no further explanation for her conduct. After further interviews on 20 and 23 September, disciplinary action was recommended. The Commissioner recorded the note made of Ms Gay's explanation for her refusal to provide the urine sample, given on 23 September, which provided:

(i) she regularly takes a particular drug (Mercindol) to get rid of a headache and she understood that this may lead to her testing positive to amphetamines;

(ii) she had only just urinated and she believed that it would take a couple of hours to obtain a urine sample;

(iii) an ex-inmate of the gaol, now living near her residence, had made threats to her neighbours that he would arrange to have her dismissed;

(iv) her ex-partner with whom she had a share in a property was now living with an ex-inmate and she had made demands for money to which she was not entitled and had made accusations about her to cause her problems; and

(v) there was at the time a damaging report made concerning her by a senior officer at the gaol and unsubstantiated allegations that she had been providing drugs to children had apparently been made

19 On 30 September, a letter advising Ms Gay of the possibility of dismissal was written. It invited a written submission from Ms Gay. There was an issue as to whether Ms Gay had received the letter. Mr Robinson had been directed to provide her with a bundle of documents to assist her with preparing a defence, including this letter. Connor C concluded on the evidence, that Ms Gay had received the letter, but had made no submissions in response to it. 20 On the evidence before him the Commissioner concluded that the reasons provided by Ms Gay for refusing to provide the sample were not all :

36 ... strictly important or, in my opinion, relevant. For instance, in her evidence Ms Gay indicated that on the day in question she had not taken the drug for a headache. I believe that Ms Gay simply gave Mr Bullock a range of concerns she had over the testing in no particular order of importance and he simply recorded them as she gave them to him.

37 Chiefly I am satisfied that it was the stigma which Ms Gay believed was involved in her being singled out for targeted drug testing which motivated her in her actions on Friday, 20 August, 2004 and her decision to refuse the test. In her evidence in this hearing Ms Gay indicated that, whilst she had no objections to random testing, she believed that she was being set up, that "...there were a lot of things going through her head..." and that she "...wanted to get to the bottom of the allegations..." She affirmed that she was not a drug user and she was outraged at the fact that she was under suspicion of being one. She did not wish to go to the gate area where the urine sample was to be taken and be observed by other staff doing so.

38 Ms Gay has claimed that she has acted to clear her name of the unsubstantiated allegations made against her. But, as I indicated earlier in this decision, on the basis of the evidence before me in this hearing, these proceedings simply cannot do that. At no time is the reason for Mr Kelly issuing the authority to direct the targeted testing of Ms Gay explained to her. Mr Kelly was not a witness in the hearing and Mr McClintock, whose task it was to arrange for the test, and who did give evidence in the hearing, does not have any knowledge of the circumstances which prompted Mr Kelly to issue the authorisation in the first place. The only evidence which goes remotely to the question of whether or not Ms Gay warranted a targeted test in the first place is the evidence of Ms Fitzsimmons who has known Ms Gay both professionally and personally and who asserts in a written statement which formed the basis of her evidence that she had been in contact with Ms Gay: "...on a regular enough basis to state that I never observed her taking any illegal drugs, never heard her discuss the taking of illegal drugs nor have I ever observed her in a state of either intoxication or where she appeared to be under the influence of drugs..." The evidence of Ms Fitzsimmons really remains unchallenged in this hearing by Ms Brus and I accept it.

21 The Commissioner accepted that the Departmental authorisation to conduct the testing was lawful, but expressed concern that the nature of the "...verifiable intelligence or compelling circumstantial evidence ..." on which the authorisation rested, was unchallengeable and denied an applicant such as Ms Gay the 'opportunity to confront her accusers and defend herself against any allegation made against her' (at [39]). The Commissioner however weighed this concern against Ms Gay's refusal to provide a sample. He noted that in another policy of which he was aware, such a refusal would be treated as amounting to a positive result. Connor C concluded that:

40 ... In my opinion, Ms Gay should have taken the test, even under protest, and upon being cleared of the apparent allegations made against her, I consider that she would be entitled to pursue, through the PSA, further information of the allegations made against her.

41 Ultimately, it is her decision to refuse the test which gives rise to the claim that she was guilty of misconduct - not anything flowing out of the initial authorisation by Mr Kelly. Whilst I appreciate the intrusive nature of the drug and alcohol testing and the need to protect the privacy of any individuals, it is more important, in my opinion, to ensure that there are no unnecessary barriers in the way of the drug and alcohol policy for employees working in the State's prison. Where employees refuse to take the test, the new regime flowing from the drug and alcohol policy, which has general support from the PSA, would be defeated. The policy is too important to be brushed aside so easily.

22 The Commissioner also noted the submissions made in the context of the 6 month amnesty in place under the Department's policy upon its introduction and that the penalty of dismissal was too harsh, in the context of this misconduct. He accepted neither argument, concluding that the amnesty did not preclude targeted testing during the 6 month period, but provided an opportunity for employees to come forward and that:

43 ... compliance with the drug and alcohol policy of the Department must be accepted by all concerned as a serious matter and the refusal of Ms Gay to take the test on Friday, 20 August, 2004 must be seen in that light.

23 Leave to appeal will never be lightly granted and not when the issues in the appeal have already been the subject of authoritative pronouncement, or when the issues raised on appeal were not argued at first instance. (See Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381; Perrott v XcelleNet Australia Ltd (1998) 84 IR 255 at 265; De Simone Consulting Pty Ltd v Ison (2000) 97 IR 478 at 482.) 24 In this case, given the nature of the matters dealt with at first instance and raised on appeal, the operation of a drug and alcohol policy established pursuant to the Crimes (Administration of Sentences) Act, we were satisfied that leave to appeal should be granted, the public interest test being met. The parties' respective cases

25 Mr A Hatcher of counsel argued for the PSA that the Commissioner's decision that Ms Gay's dismissal after 14 years' service for a single refusal to provide a urine sample was not harsh, unreasonable or unjust was attended by error, including a failure to have regard to the recent promulgation of the regulation and policy in question; the lack of proper notification of the policy to Ms Gay; a failure to consider whether the targeting of Ms Gay for a drug test was in accordance with the policy; Ms Gay's reasons for refusing the test and the failure to provide her with a proper opportunity to make a submission in relation to penalty. There was also a failure to consider whether the dismissal was harsh, have regard to Ms Gay's length of service, the personal and economic consequences of her dismissal and the question of whether the dismissal was too harsh a penalty in the circumstances. 26 The Commissioner treated the seriousness of compliance with the policy as determinative of the matter, without taking account of other relevant considerations, thereby constructively failing to exercise the jurisdiction conferred by Part 6 of Chapter 2 of the Act. 27 Ms Gay's evidence, accepted by the Commissioner, was that she refused to undergo the drug test because of the stigma associated with being targeted for such a test. The Department called no evidence as to the 'verified intelligence or compelling circumstantial evidence', which justified targeting Ms Gay for a drug test. Nor was the decision maker called to give evidence as to the matters taken into account in determining that Ms Gay should be dismissed. 28 The Commissioner's conclusion that the question of whether the policy had been complied with was not open to review in the proceedings was erroneous. The uncontested evidence was that Ms Gay was not and never had been a drug user. The Commissioner had power under s 175 of the Act to determine any question concerning the interpretation, application or operation of Regulation 249P. 29 A refusal to take a drug test does not per se, constitute a proper basis for summary dismissal. The Commissioner erred in failing to consider whether some less serious form of disciplinary action was appropriate. The Commissioner appeared concerned with Ms Gay's desire to 'clear her name' rather than pursuing the remedies available under the Act. In response to a direct question Ms Gay had said, however, that she was seeking her job back. The Commissioner erred in having regard to this other matter. 30 The reinstatement of Ms Gay was sought. 31 The case advanced for the Department by Ms E Brus of counsel was that, contrary to the submissions advanced for the PSA, the Commissioner had taken into account the recent promulgation of the regulation and policy. He had, however, concluded on available evidence that Ms Gay was aware of the policy. There was nothing to suggest that the targeting of Ms Gay was not in accordance with the policy and the Commissioner gave consideration to whether Ms Gay was given an opportunity to respond and to Ms Gay's reasons for refusing the test. 32 The Commissioner had correctly identified that the issue to be determined was 'whether or not Ms Gay was guilty of misconduct by refusing to take the test.' The direction to take the drug test was a lawful one. Its refusal resulted in termination of employment. The issue of whether Ms Gay was or was not a drug user, was irrelevant. 33 There was no requirement for the respondent to provide evidence of the verified intelligence on which it relied to direct Ms Gay to provide a drug sample. Section 236F of the Crimes (Administration of Sentences) Act does not distinguish between targeted and random drug tests, nor does the Act require that there be evidence of drug taking, before an officer can be directed to undertake a drug test. 34 Before the Commissioner, the PSA's counsel advised that it was not being argued that the certificate of authorisation issued under reg 294B was inadequate proof that Mr McClintock was duly authorised to direct Ms Gay to provide a urine sample. That argument was not available on appeal. 35 The Commissioner found, on the evidence, that Ms Gay had received the document inviting her to make submissions on penalty. That conclusion was open on the evidence of Mr Robinson. The policy in question was the subject of agreement between the Department and the PSA. There was no dispute that targeted testing was available under the policy in August 2004. The policy did not require that the Department disclose the intelligence it had in relation to the officer the subject of target testing. 36 The policy contemplated dismissal for a refusal to provide a sample. The reasons for the refusal advanced by Ms Gay were not convincing in the circumstances. Ms Gay was employed in a law enforcement agency. She was required both to uphold the law and to be seen to be doing so. This was a relevant matter and distinguished this case from others relied upon for the PSA. Consideration

37 There are undoubtedly important public interest considerations which underpin Division 5 Testing of Correctional Staff for Alcohol and Prohibited Drugs, of Part 11 Administration of the Crimes (Administration of Sentences) Act; the regulations made under that Act and the policy adopted by the Department, in consultation with the PSA, to give those provisions practical effect. 38 As the Commissioner rightly observed, that conclusion flows not only from those provisions themselves, but also from the obligations imposed both on the Department, its employees and even the PSA, by the onerous provisions of the Occupational Health and Safety Act 2000 and the regulations made thereunder. 39 The policy advises staff that, while it was accepted that for the vast majority of staff self regulation of drug and alcohol use was effective, the policy was introduced after proceedings before the Independent Commission against Corruption ('ICAC'). Mr Woodhouse, one of the Department's Executive Directors, responsible for probity and management, explained that, apart from health and safety concerns, the policy had regard to the fact that the Department is a law enforcement agency and that its employees must be seen to be upholding the law. Officers who had problems with drugs and alcohol were recognised as presenting a security risk, which could quickly be recognised by inmates, with the result that the officer could be compromised. The policy had been developed as the result of an incident at one prison where an officer who was a heroin user had been compromised by inmates and had began introducing steroids to inmates as a result. That matter came before ICAC. The policy resulted from the recognition of a problem which had to be responded to. As a result, the Department had received co-operation from the PSA in relation to the introduction of that policy. 40 Subject to the limited restriction in Regulation 249R, we were satisfied that an employee can have no basis for refusing to submit to a drug or alcohol test required to be undertaken in accordance with these statutory provisions and the applicable Departmental policy here in question. Any sense of outrage that the employee is required to undergo such a test, or because that employee is concerned about 'the stigma associated with being targeted for such a test', can not provide a proper basis for a refusal. 41 In her evidence in chief Ms Gay explained that the principal reason for her refusal to provide the sample required was 'that it was a target urine and I needed to know the evidence why I was being targeted and what that information and verified information compelling evidence was, and the fact that when you go through a target urine, are they calling you a drug user, a drug trafficker, a drug dealer, do you know what I mean, so it was like, I need to know why I am being targeted.' Ms Gay also did not wish to be 'paraded amongst my peers with the stigma of I've been target urined'. In re-examination she explained that a doubt would remain in people's mind, even if the test was negative, because targeted testing identified the person involved as criminal or corrupt, which random testing did not. 42 It is quite clear that these are not reasons for which an employee may refuse to provide a sample required under this legislative scheme and the Departmental policy. Indeed, even on appeal the PSA did not argue that such concerns could provide any proper basis for Ms Gay's refusal to undertake the test. 43 Properly, a refusal to undertake a drug test required in accordance with this legislative scheme and policy, amounts to misconduct which will result in disciplinary action. It follows that Ms Gay's refusal to provide the required sample, amounted to a serious error of judgement, properly to be considered in accordance with the Department's usual disciplinary procedures. As the Commissioner found, compliance with the drug and alcohol policy must be accepted. 44 Those observations having been made, it must also be observed, however, that while s 236F(2) of the Crimes (Administration of Sentences) Act provides that 'the selection of a member of correctional staff for testing under subsection (1) may be conducted on a random or targeted basis', the policy which the Department has implemented, involves certain constraints. Relevantly in this case the policy provides that:

Where the Commander, Security and Investigations is in possession of verified intelligence or compelling circumstantial evidence that an employee may be affected by alcohol whilst on duty or be engaged in drug misuse, the Commander may direct that targeted breath and urine testing to be conducted. 45 The Department no doubt had good reason for framing the policy in that way. It follows that in proceedings such as this, where the fairness of a decision taken in disciplinary proceedings following upon a refusal to undergo a drug test is put in issue in proceedings brought under Part 6 of Chapter 2 of the Act, the Department may be called upon to show that it did in fact require a sample to be provided in circumstances where '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' had been received. 46 That does not mean that the employee to whom the policy applies is entitled to demand evidence as to such matters before providing a sample for testing. The employee is not given such a right. Nevertheless, a consideration of whether the requirement to provide a sample accorded with the provisions of the policy, may arise in proceedings brought under s 84 of the Act, if the fairness of any resulting dismissal is challenged. 47 If challenged in proceedings such as these, the Department may have to bring evidence about the receipt of such information, if it wishes to resist a claim that a particular dismissal was unfair. Like the evidentiary onus which falls on an employer who purports to dismiss an employee summarily for misconduct, given that under the policy the Department has limited the circumstances in which it will require a targeted sample to be provided, if challenged, it will have to demonstrate that those circumstances existed in the particular case in question. 48 Here no such evidentiary case was attempted. Mr McLintock's evidence was that on 9 August, he was directed to conduct a targeted drug test in respect of Ms Gay. That was evidenced by a certificate dated 8 August. On 20 August Mr McLintock showed this certificate, as well as that authorising him to undertake such testing, to both the Governor, Mr Heffernan and to Ms Gay. Chief Superintended Kelly, the Department's Commander of Security and Investigations, who issued both documents, was not called to give evidence. 49 It follows that there was no direct evidence led that showed that Mr 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' in relation to Ms Gay 50 Nor was any evidence called to explain why the decision was later taken by the decision maker Mr Grant, to dismiss Ms Gay in the particular circumstances of this case, rather than to impose some lesser available penalty. Mr Grant was not called, nor was the Investigation report which was provided to him and to which he had regard in coming to his decision, put in evidence. 51 This was of relevance because, while a refusal to provide a sample when properly required to do so, will undoubtedly amount to misconduct, as the policy envisages, under that policy there is no automatic dismissal which flows from such a refusal, rather than some other less serious form of disciplinary action being taken. Indeed, even the letter informing Ms Gay that misconduct had been established, also advised her that there were '8 possible disciplinary actions ranging from caution or reprimand to dismissal', which might result from her refusal. What action is appropriate in a particular case is, of course, always a decision to be made in the particular circumstances of any refusal. 52 In this case, Ms Gay did not respond to the opportunity to make submissions on penalty. While the PSA complained that Ms Gay had not been given a proper opportunity to respond on the question of appropriate penalty, we take the view that the conclusions reached by Connor C was open on the evidence and cannot be disturbed on appeal. 53 Nevertheless, in the information Ms Gay had already provided to the Department, there were a number of factors which pointed to consideration being appropriately given by the decision maker to matters Ms Gay had already raised on the question of penalty. 54 The new policy was introduced in June 2004. In July, Ms Gay had alerted the Governor to a threat made against her by a former inmate, who had moved into her street, that he would have her sacked by making allegations that she was a drug dealer. It was on 20 August 2004, not long after the new legislative scheme came into operation, that Ms Gay was targeted for a drug test and refused to provide the sample required. This was the first targeted test required at the correctional centre at which Ms Gay was employed. The evidence showed that consideration had been given as to where the test would be conducted by Mr McLintock and Mr Heffernan. They were understandably concerned to minimise any embarrassment for Ms Gay- a matter of real concern to Ms Gay, as it later transpired. 55 There was no evidence that Ms Gay had been provided with a copy of the new policy, although the policy was accessible by staff on the Department's intranet website. There was no noticeboard at this workplace for such information to be communicated. Such communications were usually placed on the door of an electrical cupboard, which was out of site of inmates and it was a matter for staff to read them. 56 On the evidence the Commissioner found that while, Ms Gay asserted that she had not become aware of the memorandum, she was 'sufficiently aware, at least in fairly general terms' of the nature of the new policy, including the amnesty in place and the difference between random and targeted testing. 57 It follows nevertheless, that this important policy was a fairly new one. On her uncontested evidence, Ms Gay was and never had been a drug taker. She accordingly had no reason to seek an amnesty. On 20 August, she was concerned about why she had been targeted for the test and that she would be 'paraded' in front of her peers, who would become aware that she had been required to provide a sample. In her letter of 23 August, Ms Gay explained her shock and how she felt she had been 'paraded in front of work colleagues' in the company of internal investigation staff, it being made obvious that she was the subject of a targeted drug sample. On 23 September, she raised other concerns, some of which the Connor C did not regard as relevant. Others plainly were relevant to the question of whether her refusal should have fairly resulted in her termination. These included:

(iv) her ex-partner with whom she had a share in a property was now living with an ex-inmate and she had made demands for money to which she was not entitled and had made accusations about her to cause her problems; and

(v) there was at the time a damaging report made concerning her by a senior officer at the gaol and unsubstantiated allegations that she had been providing drugs to children had apparently been made

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:

3. Ms Gay is reinstated in her former position without loss of continuity of service, effective from Wednesday, 19 April 2006, subject to Ms Gay giving an undertaking that she will undertake any drug and alcohol testing which is required by the Department to be undertaken in accordance with Crimes (Administration of Sentences) Act and the Regulations made hereunder.

4. The Department shall pay to Ms Gay an amount equal to her ordinary rate of pay for the period 29 June 2005 to 19 April 2006, subject to any adjustment in respect of moneys earned in the meantime.

5. The parties are directed to confer as to that calculation and to bring in minutes of short order in that respect within 14 days.

6. Any disagreement about the form of the short orders should be refereed to Schmidt J.

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