Gay v. Department of Corrective Services [2005] NSWIRComm 1212

Industrial Relations Commission (NSW)|2005-11-23

CITATION: Gay v. Department of Corrective Services [2005] NSWIRComm 1212

APPLICANT Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales PARTIES: RESPONDENT Department of Corrective Services

termination of employment - policy on alcohol and drugs for corrective services staff - refusal to take a drug test - lawfulness of direction to take a drug test CATCHWORDS:

Crimes (Administration of Sentences) Act LEGISLATION CITED: 1999 Industrial Relations Act 1996

Adami v. Maison de Luxe Limited (1924) 35 CLR 143 BHP Iron Ore Pty Limited v. Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (1998) 82 IR 162 Burge v. BHP Steel Pty Limited (2001) 105 IR 325 Busways v. Johnson (1994) 55 IR 255 CCH Australia Limited v. Bowen (1998) 79 IR 206 Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 CASES CITED: Little v. Commissioner of Police (No.2) (2002) 112 IR 212 Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 Oswald v. New South Wales Police Service (1999) 90 IR 42 Pacific Power v. Crump (1993) 48 IR 296 Spanish Club Case (1999) 94 IR 173

APPLICANT Patricia Lowson LEGAL REPRESENTATIVES:

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Sandra Gay and the Department of Corrective Services

Application under S.84 of the Industrial Relations Act, 1996

1 Ms S L Gay was employed as a correctional officer (first class) with the Department of Corrective Services. Her services were terminated on Wednesday, 10 November, 2004 after fourteen years of employment for alleged misconduct - her refusal to take a drug test. The allegation against Ms Gay was that:

"...on Friday, 20 August, 2004 at Grafton Correctional Centre, you disobeyed a lawful direction given pursuant to the provisions of S.236F(1)(b) of the Crimes (Administration of Sentences) Act, 1999 and did not provide a sample of your biological material for the purpose of testing for the presence of prohibited drugs..."

She was initially suspended from duty and, after investigation, Mr Luke Grant, an Acting Senior Assistant Commissioner for the Department, wrote to her on Wednesday, 10 November, 2004 dismissing her from employment.

2 Ms Gay is a member of the Public Services Association and Professional Officers' Association Amalgamated Union of New South Wales which lodged an application on her behalf pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act claiming that the termination of her services was unfair and seeking her reinstatement in employment as a correctional officer [S.89(1)], remuneration for her loss of earnings since the termination of her services [S.89(3)] and continuity of her employment [S.89(4)]. Alternatively - but certainly as I understand her position only as a last resort - she has sought monetary compensation [S.89(5)].

3 The Commission has often confirmed that reinstatement is the principal remedy for an unfairly dismissed employee [Leeds and Northrup Australia Pty Limited v. Hull (1992) 46 IR 11 at p.15, CCH Australia Limited v. Bowen (1998) 79 IR 206 at pp.217 and 218, Oswald v. New South Wales Police Service (1999) 90 IR 42 at pp.67, Hollingsworth v. Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342, Burge v. BHP Steel Pty Limited (2001) 105 IR 325 at pp.345 and 346 and Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. Ms Gay was involved in a motor cycle accident on Thursday, 13 January, 2005 in which she incurred injuries but she claims that she is no longer affected by those injuries to the extent that they would deprive her of now resuming work as a correctional officer (although Ms Gay would be obliged to be medically examined before she resumed work as a prison officer).

4 The PSA's Part 6 application on behalf of Ms Gay was allocated initially to Tabbaa C and was the subject of proceedings before her on Wednesday, 22 December, 2004, Monday, 17 January, 2005, Monday, 24 January, 2005 and Friday, 25 February, 2005. A hearing was scheduled before Tabbaa C on Wednesday, 27 April, 2005 but the PSA made application under S.173 for the arbitration to take place before another member of the Commission. The matter was re-allocated to me and I set it down for a mentions on Wednesday, 18 May, 2005 and Wednesday, 29 June, 2005 for programming purposes. It proceeded into hearing before me on Wednesday, 23 November, 2005 and Thursday, 24 November, 2005.

5 Ms Lowson represented Ms Gay and the PSA in the hearing, calling her to give evidence. She also called as a witness Ms Elizabeth Fitzsimmons, the Department's transitional officer for aboriginal women with recidivist, alcohol or drug problems. It is Ms Lowson's claim that Ms Gay has been unfairly dismissed. She challenged both the lawfulness of the authorisation under which the Department was operating when it directed Ms Gay to provide a urine sample, the fairness of the procedure and the appropriateness of the disciplinary measure taken against Ms Gay.

6 Ms Brus represented the Department of Corrective Services in the hearing. She called four witnesses to give evidence in the hearing: Mr John Heffernan, formerly Superintendent and Governor of Grafton Correctional Centre (but now retired), Mr Andrew McClintock, Acting Deputy Superintendent of the Investigations Branch of the Department, Mr Michael Woodhouse, the Executive Director of the Department (responsible for probity and performance management) and Mr Kim Robinson, a Deputy Commissioner. Ms Brus asserts that there was no unfairness in Ms Gay's dismissal and that I should refrain from intervening in support of her. She stressed the seriousness of the drug and alcohol policy of the Department and indicated that the action the Department took against Ms Gay should be considered in that light.

7 The PSA lodged the Part 6 application on behalf of Ms Gay on Wednesday, 8 December, 2004 - almost a month after her services were terminated. A time limit is imposed on the lodging of Part 6 applications. S.85(1) provides as follows:

"Any application under this Part must be made not later than 21 days after the dismissal."

By virtue of S.85(3) whether or not to admit and out-of-time claim form is essentially a matter for my discretion. Ms Brus has not raised as an issue the delay in the PSA pursuing the matter and the 21 day time limit imposed by S.85(1) in this case is exceeded only by approximately one week. In the circumstances, I propose to exercise my discretion under S.85(3) in favour of Ms Gay to permit the Part 6 application to go forward to hearing.

8 Ms Gay has consistently maintains her innocence and has sought to clear her name of any suggestion that she was a drug user or dealer. That appears to me to be her principal motive in pursuing, through the PSA, her claim for reinstatement in the Part 6 application. My task in this hearing is essentially to determine whether or not, in terms of S.84(1), Ms Gay's dismissal was either "harsh", "unreasonable" or "unjust" [Busways v. Johnson (1994) 55 IR 255 at p. 261 and Macleay Valley Health Service v. Jeffree (1994) 58 IR 187 at p.192]. It does not follow that in determining that issue I will also be removing any allegation against Ms Gay. The issue before me is essentially whether or not Ms Gay was guilty of misconduct by refusing to take the test. Beyond that issue I have to say that there is really no allegation made against Ms Gay for her to defend and clear her name. Any such allegation remains unsubstantiated. She should appreciate that to be her position.

9 Since the middle of 2004 the Department has initiated a new policy for drug and alcohol testing for its employees. The policy is a reflection of provisions of the 1999 Crimes (Administration of Sentences) Act. In particular, S.236F(1) provides as follows:

"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 for 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."

I am informed that the words "non-invasive sample" are defined in S.3 to include a urine sample. By virtue of S.236F(2) the testing may be conducted on either a random or targeted basis.

10 Regulations made in 2001 under the CAS Act expand on that testing procedure. Under Reg.249B a person authorised to take such test may be appointed and, subject to the rules in Regs.249G, 249H, 249I, 249J and 249K may, take non-invasive samples from a staff member. Reg.249P 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..."

I will discuss Reg.249P later in this decision as Ms Lowson has raised issues arising from its operation in this hearing.

11 The drug and alcohol testing regime of the Department flows out of the CAS Act and regulations. The Department's policy provides relevantly as follows:

"The Commander, Security and Investigations, may direct an employee in any workplace to undergo a breath test or provide a urine sample in any circumstance where the Commander has 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..." The Department has introduced its new policy, in consultation with the PSA, in a series of phases.

12 The first stage - Phase 1 - commenced on Monday, 7 June, 2004 provided an amnesty that would last for six month. During that time an opportunity was available to staff who may be experiencing any problem relating to their use of alcohol or other drugs to come forward for counselling. Any staff member coming forward in that manner was for the present time to be immune from disciplinary action. But also drug and alcohol testing procedures would commence and an employee directed to take the necessary tests in three circumstances, viz:

(i) where there has been a critical incident, involving, for example, the death or serious injury to any person, where a firearm has been discharged or where excessive or unwarranted force has been used against an inmate;

(ii) where any member of staff appears to be under the influence of alcohol in the workplace that employee may be directed by a superintendent or senior member of the administrative staff (Grade 11/12 or above) to take a breath test; or

(iii) for targeted testing where internal investigations produce verified intelligence or compelling circumstantial evidence that an employee may be affected by alcohol whilst on duty or be engaged in drug misuse.

13 The Department also reserves the right for the random testing of employees. For that purpose it may engage the services of testing officers and/or nurses. Such person will work always under the direction of the Department's manager of employee health and safety - but not at direction of senior management at the level of governor or manager of correctional institutions. They will possess the authority to visit any workplace and direct that an employee undergo breath testing and/or provide a urine sample. No individual employee should be targeted by random testing.

14 An employee who fails a breath test, ie he or she has more than 0.02 grams of alcohol in 100 millilitres of blood or if the employee is carrying a firearm any level of alcohol at all, will be suspended and removed from the workplace. They will not be able to take advantage of any sick leave, flex-leave or other leave entitlements and will not be paid for the remainder of their shift. They will be directed to make an appointment with an alcohol counsellor. If a problem with alcohol consumption is detected in the employee further support and assistance will be provided. "One-off" cases will not be treated to further counselling, although further tests may be carried out at the workplace.

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. And it is that decision that brings Ms Gay's dismissal before me in these Part 6 proceedings.

17 I accept that the Department's drug and alcohol policy - like any employer's policy of that nature - does to some extent represent an intrusion into the privacy of individual employees. But, as Mr Woodhouse indicated in his evidence, 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... "

Ms Lowson's submissions, on behalf of the PSA, do not actually challenge the Department's drug and alcohol policy. However, she holds reservations over the circumstances under which Ms Gay's targeted test was conducted and the lawfulness of the authorisation from which the direction for her to be tested was made.

18 The policy was set out and explained to staff in a memorandum from Mr Ron Woodham, the Commissioner of the Department [Circular No. 04/24] on Friday, 4 June, 2004. Ms Gay asserted that at the time of her suspension on Friday, 20 August, 2004 she had not been aware of the memorandum. Mr Heffernan's evidence is that he placed the memorandum up on notice boards throughout the Grafton Correctional Centre. There is apparently no notice board in the June Baker Centre at the gaol where Ms Gay worked but he put up the memorandum in a place that had customarily been used for staff notices - on the door to the electrical cupboard - with the following additional comments at the foot of the memorandum:

"...For information. I urge all staff to make themselves aware of this policy. It is not a punitive approach. Rather it should be viewed as a positive initiative to a complex problem..."

19 Of course, none of that would have mattered if staff did not read the memorandum but, as Ms Brus indicated in her submissions, that was essentially the responsibility of the staff themselves. 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.

20 Ms Gay commenced her employment with the Department of Corrective Services in late 1990 as a correctional officer at the Goulburn Correctional Centre, working initially in a specialised unit within the gaol for developmentally delayed inmates. In 1995 she joined the court escort security unit which involved the transporting of inmates between gaols around the southern region and Sydney metropolitan centres. She was also appointed as senior officer in charge of security for the complex of cells attached to the Goulburn courthouse. She returned to custodial duties and gained the rank of senior correctional officer at Berrima Correctional Centre in which position she occasionally acted in the rank of assistant superintendent. She sought a transfer for personal reasons and was prepared to drop rank to effect a transfer. In the middle of 1999 she commenced duty as a first class prison officer at Grafton Correctional Centre. She was attached to the June Baker Centre at the time of her suspension and subsequent dismissal.

21 On Friday, 20 August, 2004 Mr McClintock, accompanied by Mr Mark McAndrew, a senior correctional officer, and an unnamed pathology collector from the Institute of Clinical Pathology and Medical Research, attended the office of Mr Heffernan. Mr McClintock had an authority under Reg.249B, signed by Mr Woodham which permitted him 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..."

22 He also held the authority, signed by Chief Superintendent Brian Kelly of the Departments Security and Investigations Branch, to conduct targeted testing on Ms Gay, describing her as:

"...an employee identified by verified intelligence or compelling circumstantial evidence concerning the use of alcohol or other drugs..."

"...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..."

23 Ms Lowson questioned the lawfulness of Mr McClintock's authorisation to conduct the test on Ms Gay. Obviously, any direction to an employee must be lawful and Ms Gay would only be obliged to comply with a direction that was lawful and reasonable [Adami v. Maison de Luxe Limited (1924) 35 CLR 143]. But in view of the provisions of Reg.247P to the CAS Act to which I have referred earlier in this decision, Mr McClintock is prima facie a person authorised to conduct the testing of Ms Gay "...at a particular time...", ie on Friday, 20 August, 2004. Ms Lowson submitting that the onus rested on Ms Brus to establish the legitimacy of Mr McClintock's authorisation and she had failed to do so. But 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.

24 Mr McClintock informed Mr Heffernan that they would be taking a urine sample from Ms Gay. Mr McClintock and the pathology collector inspected two toilets and selected the most suitable one to collect the urine sample, preparing it to collect that urine sample. At approximately 2.40pm Mr Heffernan telephoned Ms Gay and instructed her to attend his office. He did not inform her the reason for the meeting.

25 Mr Heffernan introduced Mr McClintock and Mr McAndrew to her and, according to him, stepped aside to allow Mr McClintock to continue the meeting. Ms Gay asked if she need a representative of the PSA at the meeting and either Mr McClintock or Mr Heffernan - the recollections differ - told her that she could decide that after she was told the reason for the meeting: Ms Gay believes Mr Heffernan had made that comment; Mr McClintock claimed he had, in fact, said it; Mr Heffernan does not recall the comment at all. I believe that Ms Gay is simply mistaken in her recollections on who made the comment but, in any event, I do not consider that a great deal of importance is attached to that issue.

26 Mr McClintock then showed her his Reg.249B authority for the target drug testing and Ms Gay recalled him saying to her:

"Due to verified intelligence, you are to be subjected to a target urine test for the Department."

Ms Gay asked why she had been under investigation but received no answer to that question. Mr McClintock, in fact, explained that the intelligence was held only by Mr Kelly and he did not know the reason for the targeted testing. Ms Gay claims that at no time then or since has she been informed the reason for the target urine test. And indeed, the evidence before me in this hearing throws no further light on the basis of Mr Kelly's authorisation.

27 Ms Gay asked Mr McClintock what would happen if she refused the test and 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:

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.

28 Ms Gay responded with a letter dated Monday, 23 August, 2004 requesting that her salary not be withheld. In that letter she stated:

"...I was in shock at the fact of being targeted because of so-say verified intelligence and/or compelling evidence against me.... Having read the words 'compelling evidence' on the paperwork presented to me on Friday, 20 August, 2004 I was devastated and subsequently developed tunnel-vision towards what was required of me as I was ignorant of the Department's new employee alcohol and other drugs policy. Furthermore, the fact of being escorted from the Governor's office down to the gatehouse and paraded in front of my work colleagues in the company of internal investigation staff, and the associated stigma and innuendo of being target urined ( sic ), I believe I went into a state of shock and my mind was not capable of making an informed decision regarding a matter of such importance..."

On Thursday, 26 August, 2004 the Department wrote to her to confirm that for the present time her suspension would be on ordinary pay.

29 In the meantime, an internal investigation of the incident was commenced. Mr Luke Grant, Acting Senior Assistant Commissioner, appointed Mr Michael Bullock, a senior investigator, and Ms Sally Saleh, an officer of the Department's Professional Conduct Investigating Branch to conduct that investigation. In a memorandum dated Thursday, 26 August, 2004 Ms Gay had been directed to attend an interview scheduled for Tuesday, 7 September, 2004. She attended a meeting at the Grafton Correctional Centre on that day but made no further submissions at that meeting, relying on what she had written on Monday, 23 August, 2004 when she sought that her salary be reinstated whilst she was on suspension.

30 Mr Bullock and Ms Saleh attended Grafton Correction Centre on Monday, 20 September, 2004 and conducted a recorded interview of Ms Gay. Mr Bullock prepared the report of that interview dated Thursday, 23 September, 2004. It was the recommendation of the investigating officers that (unspecified) disciplinary action be taken against Ms Gay. Essentially, it is Ms Gay's assertion that she received no further communications from the Department up to her dismissal on Wednesday, 10 November, 2004. She gave no further submissions in support of her position.

31 Mr Robinson was subsequently directed to serve on Ms Gay a bundle of documents to assist her in preparing her defence and she signed at the foot of the paperwork provided that she had received those documents. However, Ms Gay is convinced that one item on that list - a letter dated Thursday, 30 September, 2004 from Mr Luke confirming her suspension and foreshadowing for the first time the possibility that she may face dismissal - was not in the bundle of documents she received from Mr Robinson. That letter from Mr Luke records that:

"...I am now considering imposing disciplinary action. As previously advised on Friday, 20 August, 2004 there are eight possible disciplinary actions ranging from a caution or reprimand to dismissal. In relation to this matter the severest penalty I would conceivably impose is dismissal..."

"...if you wish to make a written submission to me you have 14 days from the receipt of this letter to make such a submission and to provide any additional information which you consider should be taken into account in relation to the disciplinary action being considered before I make a final decision..." 32 Ms Lowson objected to Mr Robinson giving evidence in the hearing and for Mr Luke's letter of Thursday, 30 September, 2004 to be admitted into evidence. Mr Robinson had not initially been advanced by Ms Brus as witness in the hearing in compliance with the directions I originally made. There is, of course, a clear obligation on the parties to comply with directions made by a member of the Commission and the failure of a party to comply with the deadlines set for the filing of all evidentiary material does give rise, at my discretion, to the possibility that such evidentiary material may be excluded from the hearing [the Spanish Club Case (1999) 94 IR 173]. However, since Ms Gay has indicated in her evidence that she did not actually receive Mr Luke's letter of 30 September, 2004, I believe that Ms Brus should be given the opportunity to fully test that evidence. On balance, I considered it appropriate that Mr Robinson give evidence in the hearing and I permitted him to do so over Ms Lowson's objections. Mr Luke's letter of Thursday, 30 September, 2004 consequently came into evidence through Mr Robinson. 33 As Ms Lowson has argued in her submissions, it would certainly be unfair if Ms Gay were dismissed without at least being informed that she faced dismissal and being given a chance to prepare a case in her defence. It is in that light that Mr Luke's letter of Thursday, 30 September, 2004 is so important. Mr Robinson is adamant that he supplied that letter to Ms Gay and Ms Gay's signature on the paperwork which accompanied the bundle of document confirms to my satisfaction that Ms Gay was simply mistaken that she did not receive the letter.

34 That must mean that that the Department had taken the necessary steps to make Ms Gay aware that her dismissal was being contemplated and that she would be given the opportunity to provide her side of the story before any decision to terminate her services was taken. Moreover, right from the outset when on Friday, 20 August, 2004 she was directed to take the test but refused to comply with that direction both Mr McClintock and Mr Hefferan had stressed to her the importance of her complying with the direction and that the Department would regard her refusal to take the test as serious, suspending her from employment pending a further investigation. I do not believe that Ms Gay can successfully argue that she did not know that the Department would be taking the step it ultimately did to terminate her services.

35 Ms Gay gave the internal investigators a number of reasons for her decision to refuse to provide a urine sample to the investigators which were recorded by Mr Bullock in his subsequent report of Thursday, 23 September, 2004, eg:

(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;

36 There was no attempt made by Mr Bullock to prioritise those reasons and, based on Ms Gay's evidence in this hearing, not all of them were 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.

39 Whilst it is no doubt lawful, I hold reservations over Mr Kelly's authorisation, in fact. Random testing of staff is one thing but, in my opinion, targeted testing is another thing entirely. It is asserted by Mr Kelly that in initiating the targeted testing of Ms Gay, he had received "...verifiable intelligence or compelling circumstantial evidence..." on which he acted to direct Ms Gay to provide a sample of her urine. As I understand the position, decisions of that nature are virtually unchallengeable by any independent authority - certainly it is not open to me to review that decision in these Part 6 proceedings. To my mind, that fact alone gives rise to a suggestion that any disciplinary action taken against an employee in the light of such an authorisation may have about it an element of unfairness. I believe it to be "unjust", to use the word in S.84(1), to deny any litigant the opportunity to confront her accusers and defend herself against any allegation made against her. That is no more than natural justice. As the position stands, Ms Gay still does not know what allegations have been made against her.

40 But I have to say that if Ms Gay was seeking to clear her name, her conduct in refusing to provide a urine sample is an odd one and leaves so many questions unanswered. I note in that respect that in accordance with the established drug and alcohol policy introduced in the Port Kembla steelworks of BlueScope Steel (AIS) Pty Limited an employee who declines to undertake an alcohol or drug test is deemed to have a positive result. Ms Gay's refusal to take the test leaves it open to the Department to reach a conclusion adverse to her. 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. 42 Ms Lowson has pointed out in her submissions that the direction on Friday, 20 August, 2004 that Ms Gay provide a urine sample had to be considered in the context of the six month amnesty in place as Phase 1 of the Department's drug and alcohol policy. But that amnesty was designed to give employees during that six month period to come forward if they had a problem with alcohol and/or drugs for counselling without any fear of disciplinary action. It did not act as the brake on targeted testing which Ms Lowson seems to be implying.

43 Of course, to use the expression of the Full Bench of the Commission (Fisher P, Hungerford J and Connor CC) in Pacific Power v. Crump (1993) 48 IR 296 at p.302 the dismissal an employee is "…the ultimate sanction..." and Ms Lowson argued that a lesser penalty would have been more appropriate for Ms Gay. She referred to the decision of Watson J of the former State Industrial Commission in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 in that respect. His Honour commented (at p.233) that:

"…in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence…"

But, as Ms Brus suggested in her submissions, 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.

44 In those circumstances, I see no ground for my intervention in support of Ms Gay and I decline to do so.

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