s.394 - Unfair dismissal

Application for an unfair dismissal remedy - positive drug test for methylamphetamine - breach of drug and alcohol policy - valid reason for dismissal - application dismissed

• [1] Mr Jethro Aisa (Mr Aisa) has made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (FW Act) alleging that he was unfairly dismissed from his employment with Southern Cross Protection Pty Ltd (SXP).

• [2] On the morning of 21 November 2024, Mr Aisa returned a non-negative drug test for amphetamine and methylamphetamine. He was subsequently dismissed by SXP on 29 November 2024.

• [3] Mr Aisa contends the drug testing procedure was unfair and seeks an order that SXP pay him an amount of compensation.[1]

• [4] The matter was heard before me on 1 April 2025. I granted permission to SXP to be represented by a lawyer, as I was satisfied that the precondition set out in s.596(2)(a) of the FW Act had been met and that it was appropriate to exercise my discretion to grant permission. Mr Aisa was self-represented. SXP was represented by Mr A. Vlachos.

• [5] For the reasons that follow, I have concluded that Mr Aisa was not unfairly dismissed.

• [6] Witness statements with accompanying annexures were tendered from the following persons, who also gave evidence at the hearing:

• Mr Aisa (Exhibit A1);
• Mr Lochlan McDonald, employed by First Choice Diagnostics Company Pty Ltd (FCD) as a Drug Screener (Exhibit R1);

• Dr John Howard Lewis, a Consultant Toxicologist (Exhibit R2);

• Ms Nichole Keirouz, employed by SXP as the Operations Support Centre Manager (Exhibit R3); and

• Ms Kaitlynne McGregor, formerly employed by SXP as the Head of People & Culture (Exhibit R4).

• [7] The following documentary material was admitted into evidence:

• Mr Aisa's Bundle of Documents (Exhibit A2).

• [8] Annexure NK1 to Exhibit R3 is the security procedures that SXP provides in relation to Coles Supply Chain Distribution Centres. I was satisfied that these security procedures could be compromised if they were made public. Accordingly, I issued a confidentiality order[2] restricting their publication and disclosure.

• [9] At the commencement of Mr Aisa's evidence, I explained to Mr Aisa that having regard to the reason for dismissal, he may refuse to answer questions on the ground of self-incrimination. Mr Aisa confirmed that he understood that.[3]

When can the Commission order a remedy for unfair dismissal?

• [10] As stated above, Mr Aisa contends that he was unfairly dismissed and seeks an order that SXP pay him an amount of compensation.

• [11] Section 390 of the FW Act provides that the Commission may order a remedy if:

(a) the Commission is satisfied that the Applicant was protected from unfair dismissal at the time of being dismissed; and

• [12] Both limbs must be satisfied. I am therefore required to consider whether the Applicant was protected from unfair dismissal at the time of being dismissed. If I am satisfied that the Applicant was so protected, I must then consider whether the Applicant has been unfairly dismissed.

When is a person protected from unfair dismissal?

• [13] Section 382 of the FW Act provides that a person is protected from unfair dismissal if, at the time of being dismissed:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

• [14] Section 385 of the FW Act provides that a person has been unfairly dismissed if the Commission is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

• [15] SXP is a security company that provides a variety of security services to clients throughout Australia.

• [16] On 9 March 2022, SXP offered to employ Mr Aisa as a full-time security guard. The letter of offer was incorporated into a document titled "Employment Agreement Security Officer" which also included the terms and conditions of employment.[4]

• [17] On 10 March 2022, Mr Aisa accepted that offer of employment and commenced his induction.[5]

• [18] The Employment Agreement relevantly provides as follows:[6]

Start Date Your employment will commence on 28/03/2022

The terms of your employment also include the Schedule of Standard Term attached. In the event of an inconsistency between this Letter of Offer and the Schedule of Standard Terms, the provisions of the Letter of Offer shall prevail.

(a) perform such duties and functions in relation to the Company management of the Company will from time to time allocate to you, including but not limited to, those duties and functions set out in the Letter of Offer; and

(b) at all times act faithfully, honestly and diligently;

(c) ensure all Company equipment you use is appropriately used, secured and maintained;

(d) follow lawful and reasonable directions given to you by the Company;

(e) not act in any way which may harm or prejudice the reputation or goodwill of the Company;

The Company may terminate your employment without notice or without a payment in lieu of notice for serious misconduct. Serious misconduct includes, without limitation, the following:

(a) if you commit any serious or persistent breach of any of the terms of the Employment Agreement, including a breach of your obligations of confidentiality, and network usage;

(e) if you refuse to comply with any reasonable instruction or direction including any failure on your behalf to comply with your obligations under any Company rules, policies and/or procedures and any directions given by management of the Company;

(h) Consumption of alcohol or use of drugs whilst on duty, or being under the influence of alcohol or drugs including, without limitation, illegal drugs and drugs which impact your ability to work effectively and safely.

10.1 The Company's work environment, which includes any site where the Company has a contract to provide security services, is to be free of smoke, alcohol or any illegal drugs. It is a condition of employment that you may be required to undertake screening for drug and alcohol levels from time to time, the results of which will be held in confidence, and released only to those in the Company that have a legitimate need to know.

12.1 The Company has, or will have, various policies which apply to your employment. You must familiarise yourself with these policies and follow them. A material failure to do so may jeopardise your employment.

12.2 The policies do not form part of your contract of employment and may be changed by the Company from time to time. Company policies and procedures are on the Company's intranet site.

• [19] As part of Mr Aisa's induction, he was required to acknowledge that he has read, understood, and agreed to abide by the policies and procedures set out in a document known as the Employee Handbook. Ordinarily, SXP employees will download an app known as Xemplo to access the Employee Handbook and other relevant onboarding information.[7] Under cross examination, Mr Aisa stated that he could not recall whether he accessed the Employee Handbook via Xemplo but agreed that he reviewed and was inducted on the Employee Handbook as part of commencing employment with SXP.[8]

• [20] The Employee Handbook relevantly states:[9]

This Code of Conduct Policy ("Policy") outlines the general standards of conduct and behaviour expected of all employees of Southern Cross Protection Pty Ltd ("Company") and

Failure to fully comply with the standards as outlined within the Policy will be deemed serious misconduct which will result in disciplinary proceedings and may result in the termination of employment without notice.

This policy applies to all employees of the Company and its subsidiaries

You are expected to properly perform your duties and treat all colleagues and clients with honesty, respect and courtesy.

Teamwork in security is essential and the Company will not tolerate Employees behaving in an insubordinate manner or wilfully disobeying a lawful instruction the Company.

The following list of behaviours is considered to be serious misconduct by the Company which will result in disciplinary proceedings and is likely to result in the termination of your employment without notice. This list is not exhaustive, but shall include:

• wilful or deliberate behaviour which is inconsistent with the continuation of the

• conduct which causes a serious and imminent risk to a person's health and safety;

• conduct which causes a serious and imminent risk to the reputation, viability or profitability of the Company;

• being intoxicated at work or while undertaking your duties or while representing the Company;

• being in the possession, or under the effects, of illegal drugs or substances;

• failure to carry out a lawful direction of the Company;

• bullying harassment, victimisation or discrimination;

• breaches of the unauthorised accessing or copying of information.

The company is committed to providing all employees with a safe working environment. We recognize that workers affected by Drugs and Alcohol (D&A) including prescription, non-prescription and illegal substances can contribute to unsafe workplaces, potentially exposing people to harm.

Drugs and alcohol can also affect a person's work performance, the quality of our service and the reputation of our business.

Firearms laws, security guidelines and road rules define blood alcohol limits. Our business is based on these activities.

More broadly, D&A misuse is an increasing problem across the Australian community and we have a social obligation to uphold and role model responsible attitudes to drugs and alcohol. We will do this through a comprehensive approach to D&A which includes:

In order to monitor compliance with this policy and monitor D&A related risks the Southern Cross Protection group of companies will implement a D&A testing program.

The Southern Cross Protection group of companies (from now on referred to as the company) are committed to the provision of a safe and health work environment for all workers. In order to ensure all workers are provided with a safe work environment the company undertakes random drug and alcohol testing.

This document describes the drug and alcohol testing procedures and should be read in conjunction with the Drug and Alcohol Policy.

This policy applies to all workers and visitors who undertake work for the company.

This program will consist of random D&A testing of 10% of the worker population annually.

All testing will be carried out by competent and authorized persons in accordance with the Southern Cross Protection group of companies' D&A testing procedure and the relevant Australian standards.

Random selection and testing of workers at a workplace will be undertaken without notice by an external testing agency.

Periodic mass screening may also occur at sites.

• Alcohol - Testing will be undertaken using breathalyzer devices in accordance with AS 3547-1997 Breath Testing Devices for Personal Use (and amendment 1-2000); and
• Drugs - Saliva testing to be undertaken in accordance with Australian Standard AS/NZ 4760-2006 Procedures for Specimen Collection and the Detection and Quantification of Drugs in Oral Fluid.

Alcohol - All workers will have a Breath Alcohol Concentration (BrAC) under 0.05% or lower where a legal limit applies whilst On Duty.

Workers who choose to consume alcohol at an Authorized function shall be responsible for limiting their consumption so as to not present a danger to themselves or to others.

Drugs - Workers On Duty must not consume, store, distribute or sell illegal drugs whilst On Duty.

Workers on duty must not return a 'positive' illegal drug test with levels over the Minimal Detectable Amounts specified in the Australian Standard for saliva testing AS/NZ 4760-2006, namely:

All testing will be conducted by a selected external provider.

The appointed testing provider will develop an operationally appropriate random site selection schedule.

The goals of the schedule will be to ensure that a minimum of 10% of the workforce are randomly tested each year for both drugs and alcohol.

Where a site has more than four personnel reporting for work the testing provider will utilize a random selection process.

On occasion a blanket test of all personnel on site may be conducted at the discretion of the company.

1. All testing equipment and procedures will meet AS/NZ 4760 for the collection, detection and quantification of drugs in oral fluid.

1. The person being screened will be required to provide a sample of oral fluid in the approved testing device provided by the testing company. The sample shall be sufficient to record a valid reading on the instrument.

1. If the test is negative the worker resumes their normal duties and the sample is disposed.

1. If the test is not negative for any of the substances listed in the Drug and Alcohol Policy then the sample will be dispatched to a laboratory for further analysis. A Chain of Custody process will be incorporated to ensure the integrity of the sample.

1. The person returning the non-negative result will remain with the tester and the manager will be advised. Procedures for management of non-negative drug tests will apply.

A worker who has an on-site test result that is 'positive' (alcohol) or non-negative (drugs) and has non- declared prescription drugs will:

• be deemed to have presented for work in an unacceptable state; and
• interviewed by an appropriate manager who will advise the worker of the implications of the test result and options for treatment or rehabilitation.
• be directed to leave the Workplace and not to return to work for the remainder of the shift after the on-site testing.

Managers are responsible for ensuring appropriate arrangements are made for workers, who are directed to leave the Workplace, to travel home safely after the on-site testing is completed. Where a worker's test result is non-negative, the substance is unknown and is subject to confirmatory testing in a laboratory, the worker will be unable to perform their tasks until the confirmatory test results are received.

Breaches of this policy may result in disciplinary action, up to and including termination of employment. Disciplinary action will take into account the circumstances of the case and be undertaken in accordance with the Southern Cross Protection group's policies and procedures.

An employee who has tested positive for alcohol or illegal drugs will-unless there were significant mitigating or aggravating factors-receive formal counselling or may be dismissed.

Employees who need time off for drug and alcohol related problems will have access to the company's personal leave policy in the same way as any injured or ill employee.

• [21] From time to time, SXP conducts refresher training in relation to its policies and procedures. On 11 May 2023, Mr Aisa completed refresher training in relation to SXP's Code of Conduct.[10]

• [22] Upon commencement of his employment, Mr Aisa was directed to perform his duties as a security guard in the gatehouse of a Coles distribution centre (Coles DC). Mr Aisa generally worked the overnight shift.[11]

• [23] Without disclosing the specific security arrangements in place at the Coles DC, the general duties of a security officer include monitoring and responding to security incidents and emergencies, including, but not limited to fires and break-ins. A security officer must remain alert and able to respond promptly to issues that arise.

• [24] On the evening of 11 November 2024, Mr Aisa worked the overnight shift and was replaced by Mr Rod Dancou, who worked the day shift on 12 November 2024.[12]

• [25] At approximately 11.00am on 12 November 2024, Mr Dancou contacted Ms Keirouz by telephone and a discussion to the following effect took place:[13]

Mr Dancou: Hi Nichole, I am calling to let you know that I found some drug paraphernalia in the microwave in the gatehouse.

Ms Keirouz: Hi Rod. What do you mean? Can you tell me what you found?

Mr Dancou: I found a bong in the microwave oven just now.

Ms Keirouz: Can you text me a photo of what you found.

Ms Keirouz: Don't do anything with the bong. Leave this with me and I will get back to you.

• [26] Shortly after that telephone call Ms Keirouz received a text message from Mr Dancou containing a photo of a glass bong.[14]

• [27] On 13 November 2024, Ms Keirouz advised Ms Claere Kay, the National Safety Manager for SXP, that a bong was found in the gatehouse at a Coles DC. Ms Kay advised Ms Keirouz to dispose of the bong. Later that day, Ms Keirouz attended the Coles DC and disposed of the bong by breaking it and placing in a rubbish bin.[15]

• [28] Ms Keirouz stated that following the discovery of the bong at the Coles DC gatehouse, she was concerned that SXP's security guards may be using illegal drugs whilst on duty. Ms Keirouz asked Ms Kay to arrange for drug testing to take place.[16]

• [29] Mr Aisa was rostered to work the overnight shift on the evening of 20 November 2024 and ending on the morning of 21 November 2024.[17]

• [30] Ms Kay engaged FCD to conducted drug testing at the Coles DC gatehouse on the morning of Thursday 21 November 2024. FCD provides onsite drug and alcohol testing and has been accredited with the National Association of Testing Authorities since 27 November 2013.[18] The drug test was conducted by Mr McDonald. Mr McDonald is a Drug Screener and is responsible for the collection of bodily fluid specimens as part of the drug testing FCD conducts on behalf of its clients.[19]

• [31] At approximately 4:45am on Thursday 21 November 2024, Mr McDonald arrived at the Coles DC gatehouse.[20] At approximately 5.11am, Mr McDonald commenced testing Mr Aisa in the gatehouse. There was no-one else present in the at that time. Mr McDonald described the initial testing procedure as follows:[21]

...The testing procedure is a standard procedure which I have performed many times. The procedure commenced with me asking [Mr Aisa] "Have you had anything to eat, drink, smoke, or chew". [Mr Aisa] replied "No".

11. I then entered [Mr Aisa]'s details from his security ID tag onto my paperwork and obtained his signature so he could confirm the accuracy of the information and his identity.

12. I then asked [Mr Aisa] if he had taken any prescription or non-prescription drugs in the last 7 days. He told me that he had taken methamphetamine through smoking and MDMA within the last 7 days.

13. These initial steps in the testing procedure took me approximately 5 minutes. I then commenced the saliva swab process with [Mr Aisa], which took another 10 minutes approximately. During this time, I also conducted a breath test on [Mr Aisa], which resulted in a 0 blood alcohol content.

14. The saliva swab device showed a non-negative result for methamphetamine after about 10 minutes. I know this because there are coloured strips on the saliva swab device which show a test line and control line for a drug family; in this case the absence of a test line for methamphetamine was not visible and indicated further testing was required. I informed [Mr Aisa] that the saliva swab device showed a non-negative result for methamphetamine and that I would need to conduct secondary testing.

15. There was no-one in the guardhouse when I informed [Mr Aisa] of his drug test result.

• [32] The first test concluded at approximately 5:36am. Mr McDonald then telephoned his manager who informed him to commence a secondary test. Mr McDonald stated that while this occurred, Mr Aisa was monitoring the CCTV cameras in the gatehouse.[22]

• [33] At approximately 5:40am, Mr McDonald commenced the secondary testing of Mr Aisa. Mr McDonald described the secondary testing procedure as follows:[23]

...The secondary test is different to the first test because it involves the placing of a thin plastic strip with a cotton coating under the individual's tongue, and leaving it there until the end of the strip becomes blue. That indicates that enough saliva has been collected for the test. That strip is then placed into a plastic vial with blue liquid to be transported to the laboratory.

19. This secondary test is then repeated, and a second plastic strip is collected in the same way as the first.

20. These 2 secondary tests took approximately 25 minutes, which was a little longer than usual, due to [Mr Aisa] having a dry mouth.

• [34] Mr McDonald stated that other employees arrived at the gatehouse between 5:50am and 6:00am and that he completed the secondary testing of Mr Aisa at approximately 6:05am. He then tested the other employees.[24]

• [35] Mr Aisa took issue with the testing being conducted in the gatehouse. Mr Aisa stated that it was not conducted in private, that the gatehouse was still operational and he was performing duties, and that Mr McDonald had told others that Mr Aisa returned a positive test. However, under cross examination, Mr Aisa ultimately agreed that no-one else was present when Mr McDonald informed him of the initial test result and that any other employees arrived after the secondary testing was underway.[25]

• [36] At approximately 8.15am, Mr Aisa was advised that he was on Employer Initiated Paid Leave pending the results of the secondary drug test.[26]

• [37] Mr McDonald delivered the vials containing Mr Aisa's specimens to Douglas Hanly Moir Pathology at approximately 2:49pm on 21 November 2024.[27]

• [38] On 22 November 2024, FCD provided the pathology report to SXP.[28] The pathology report recorded the following information:[29]

Amphetamine Type Substances Result Concentration

Methylamphetamine Confirmed Positive 208.3 ng/ml.

• [39] On 25 November 2024, Ms Keirouz sent an email to Mr Aisa which attached a letter titled 'Invitation to Show Cause' which stated:[30]

On 21 November 2024, you were advised of a non-negative drug test by Nichole Keirouz, Service Delivery Manager and stood down on Employer Initiated Paid Leave (EIPL) pending the results of a further drug analysis. We have since received those results, and we would like to discuss your conduct in accordance with our Code of Conduct and Drug and Alcohol policy and procedures.

Based on the evidence that is available to us we have conclude the following:

• - That you (Jethro Aisa) have returned a confirmed Positive drug test for Amphetamine & Methylamphetamine. The results indicate the consumption of the drug Methamphetamine as known as Ice.

• - This non-negative result is in direct violation of Southern Cross Protection's Code of Conduct policy and Drug and Alcohol policy.

Having reviewed all the available information, we consider that we have lost trust in you performing your role in accordance with the standards expected by SXP. After review we confirm that SXP is considering terminating your employment. We therefore invite you to attend a meeting to show cause as to why SXP should not proceed to terminate your employment.

The show cause meeting and has been scheduled as below:

Location: Level 3/ 63-79 Parramatta Rd, Silverwater, NSW, 2128

Participants: You and your support person (if you wish); me and Nichole Keirouz, Service Delivery Manager. **Lauren Jackson (P&C Coordinator) will be in attendance virtually for administrative purposes only**.

You may also choose to provide a written submission at this meeting. After the meeting SXP will make a decision, based on the information available to us as to whether we proceed to terminate your employment, or alternatively whether some other disciplinary outcome is appropriate. You will be advised of our decision as soon as practicable following this review. Please be advised that should you choose not to attend the meeting or provide a written submission we will make a decision based on the information currently available to us.

You are encouraged to bring a support person to the meeting. The purpose of the support person is so you have someone to discuss the details of the meeting with and is there to assist you in the event that you require any assistance during the meeting. If you would like to have a support person present, ensure that you choose someone who is not likely to be approached during the investigation to provide information.

In the event that you are unable to attend the meeting due to circumstances beyond your control we request that you advise us in advance. You may be requested to provide evidence to validate the reason you cannot attend. The meeting will then be rescheduled as soon as reasonably practicable. In the event that it becomes impracticable to reschedule the meeting we may consider other options to obtain your responses to the allegations.

It is important that we maintain confidentiality in this process. This protects you and the integrity of the process. Please do not discuss this matter or the process with other employees of SXP or any current clients of SXP. You may discuss the matter with your support person or with an employee representative (such as your Union) for the purpose of seeking advice. Any potential breach in confidentiality will be addressed in line with the Code of Conduct and may potentially lead to disciplinary action.

SXP's priority is to support you through this process. Please feel free to reach out to me with any questions. Our Employee Assistance Program, Telus Health, is a free and confidential counselling service available 24 hours, 7 days a week on 1300 361 008.

Please don't hesitate to reach out to me with any questions about any of the above information. If you need to make alternative arrangements for your meeting, please contact me on [mobile number redacted] or [email address redacted].

• [40] On 29 November 2024, Mr Aisa attended the show cause meeting with Ms McGregor, Head of People & Culture, Ms Lauren Jackson, SXP's People and Culture Co-ordinator, and Ms Keirouz. The meeting was conducted via Microsoft Teams. Ms McGregor provided the following account of the meeting, which was not challenged by Mr Aisa:[31]

Ms McGregor: The purpose of today's meeting is to discuss the non-negative drug test you returned and to give you an opportunity to tell us how and why you had amphetamine & methylamphetamine in your system. It is also an opportunity for you to give us a reason not to terminate your employment.

Ms McGregor: On 21 November 2024, you were stood down from your employment and put on Employer Initiated Paid Leave due to a non-negative drug test and pending the results of a further drug analysis. We have since received those results from the pathology lab and it has been confirmed that you have returned a positive drug test for amphetamine & methylamphetamine. Can you tell us why you attended for work with drugs in your system?

Mr Aisa: Yes, I'm a user on my days off. I just had 2 days off and that might be the reason why my result was positive.

Ms McGregor: Are you aware that this is in violation of the terms of your employment contract and a breach of the Company's Drug and Alcohol policy?

Mr Aisa: No, I wasn't aware of any Drug and Alcohol policy. I also didn't know that the drugs would be in my system still.

Ms McGregor: You signed your employment contract which clearly states that being under the influence of drugs whilst on duty is serious misconduct, and in your induction you acknowledged that you have read and understood the Company's policies, which include the Drug and Alcohol Policy.

Mr Aisa: I didn't know about the Drug and Alcohol policy.

Ms McGregor: We don't agree with you that you were not aware of the Drug and Alcohol policy. We have lost faith in your ability to perform your role in accordance with the standards expected by SXP. Do you have anything else you would like to add?

Mr Aisa: Yes, why was the tester telling everyone that I was on drugs, including the client, Brian?

Ms McGregor: I was not aware that was the case but I will ask Nichole to investigate. The testers are an independent company engaged by SXP and are not SXP employees. Would you like to discuss anything else?

Mr Aisa: Will I be receiving my termination letter today?

Ms McGregor Yes. SXP will proceed with termination today, because it is considered serious misconduct you will be terminated immediately, without notice. However, you will still receive any paid leave entitlements and your EIPL for this week.

Ms McGregor: Would you like a copy of your pathology results?

Ms McGregor: Thank you for your time today. You will receive your termination letter later today.

Mr Aisa: Will I receive my payments on Wednesday?

Ms McGregor: I'm not sure what our pay office's deadline is for paying entitlements. If you don't receive it all on Wednesday (4th December) then the remainder will be paid on Friday (6th December) when the pay adjustments are sent.

Ms McGregor: There is nothing more to discuss. Thank you for your time everyone.

• [41] Later that day, Ms McGregor sent a letter of termination to Mr Aisa which stated:[32]

Further to our correspondence dated 25th of November 2024, this letter serves to confirm that your employment as a Loss Prevention Officer at Southern Cross Protection (SXP) will be terminated with immediate effect for serious misconduct occasioning a non-negative drug test.

During the course of our investigation, you were provided the opportunity to provide responses and feedback to the issue raised. This occurred during a show cause meeting on the 29th of November as to why your employment with SXP should not be terminated.

All available information has been considered by SXP. After considering all the information SXP has made a decision to terminate your employment due to your misconduct and subsequent failure to perform your role to the standard expected by SXP.

Your employment with SXP will therefore be terminated effective the 29th of November 2024. You will be paid any outstanding annual leave entitlements.

• [42] On 6 March 2025, SXP submitted a report to the Security Licensing and Enforcement Division (SLED) of the New South Wales Police concerning whether Mr Aisa was a fit and proper person to hold a security licence.

• [43] In addition to the matters I have referred to at paragraphs [19] and [35] above, in evidence before the Commission:

• • Mr Aisa agreed that the pathology report issued by Douglas Hanly Moir recorded that he had 208 ng/mL of methylamphetamine in his system and he does not dispute the result;[33]

• • Mr Aisa agreed that methylamphetamine is an illegal drug and that he returned a positive result for that drug that was in excess of the minimum detectable amount set out in SXP's Drugs and Alcohol Testing Procedure. Mr Aisa agreed this was a breach of that policy;[34]

• • Mr Aisa disputed that the pathology report recorded impairment or that he was under the influence of the drug;[35]

• • Despite the level of methylamphetamine recorded in his system, Mr Aisa disagreed that he was impaired or under the influence of the drug, or that could not properly perform his job as a security officer;[36]

• • Mr Aisa denied that he had consumed (or taken) methylamphetamine during his shift on 21 November 2024 or at any other time;[37]

• • Mr Aisa agreed that he had consumed methylamphetamine on his 2 days off prior to his shift on 20 November 2024;[38]

• • Mr Aisa denied that he brought the bong to the Coles DC gatehouse that was found on 13 November 2024 and/or that he used that bong during his shift to consume illegal drugs;[39] and

• • When the drug test took place, Mr Aisa stated that he was allowed to continue working.[40]

• [44] SXP led evidence from Dr Lewis, who is a Consultant Toxicologist. Dr Lewis has over 30 years of experience in examining or studying illegal drugs and controlled substances. Dr Lewis has a Bachelor of Science, a Master of Science and a Doctor of Philosophy, and is an assessor for the National Association of Testing Authorities. Dr Lewis has previously held the position of Casual Academic at the School of Mathematical and Physical Sciences within the Centre for Forensic Sciences at the University of Technology Sydney, and the position of Principal Scientist and Head of the Toxicology Unit of the Pacific Laboratory Medicine Services at Northern Sydney and Central Coast Health Service.[41]

• [45] Dr Lewis was engaged by SXP to provide an opinion on the following:[42]

1. What are the drugs that [Mr Aisa] tested positive for and what is their legal status;

1. Expert interpretation of [the pathology report issued by Douglas Hanly Moir];

1. What do the levels of concentration mean, and the effects of those drugs on a person's ability to perform their duties as a security officer in consideration of his job description as a security officer;

1. Any other matters that may be relevant for the Commission to consider;

1. What effect these drugs might have on an individual's recollection of events of that day.

• [46] Dr Lewis was provided with a copy of Mr Aisa's witness statement, a copy of the pathology report issued by Douglas Hanly Moir, and a copy of the Coles DC National Security Procedures.[43]

• [47] Dr Lewis provided the following opinion:[44]

1. What are the drugs that [Mr Aisa] tested positive for and what is their legal status.

a. Mr Aisa was found to have amphetamine and methylamphetamine (often spelt methamphetamine) in his oral fluid. Amphetamine is a central nervous stimulant and is legally prescribed for a number of conditions, including ADHD. Methylamphetamine is a powerful central nervous stimulant and is illegal in Australia.

2. Expert interpretation of [the pathology report issued by Douglas Hanly Moir];

a. The laboratory found both amphetamine and methylamphetamine in Mr Aisa's oral fluid. The presence of methylamphetamine is proof of the consumption of methylamphetamine, often known as ice or crystal meth. In this matter, the presence of amphetamine is as a metabolite (breakdown product) of methylamphetamine). Methylamphetamine is found unchanged in oral fluid and is also partly broken down to amphetamine. The relative amounts of methylamphetamine (MA) to amphetamine (Amp) in oral fluid where MA>>Amp was consistent with published studies of methylamphetamine ingestion [1].

3. What do the levels of concentration mean, and the effects of those drugs on a person's ability to perform their duties as a security officer in consideration of his job description as a security officer.

a. The levels of methylamphetamine and its metabolite, amphetamine, are indicative of recent use. A single oral fluid level cannot be correlated with dose, frequency of use or an exact time of use. The study by Schepers and colleagues [ibid], found methylamphetamine levels in the vicinity of 208 ug/L within 4-5 hours of consumption. In a report by Cook [2], a graph of methylamphetamine excretion into saliva (oral fluid) shows a similar oral fluid level at an approximate time of 8 hours. I am of the opinion that the concentration of methylamphetamine and its corresponding amount of amphetamine was indicative of use within a few hours of the drug test.

b. Methylamphetamine is a powerful central nervous stimulant. It produces a rapid onset of euphoria, heightened awareness and alertness, excitation, rapid pulse and elevated blood pressure.

c. Users may exhibit a rapid flight of ideas, rapid speech, restlessness, reduced fatigue, a heightened sense of well-being and poor impulse control. In a later phase of use, subjects can appear restless, and at high frequent doses, suffer delusions and psychosis.

d. After the acute effects (immediate euphoric effects) of methylamphetamine have worn off, users could become fatigued and sleepy.

e. The position Mr Aisa holds is important and requires total alertness at all times. Importantly, there is a need to be able to rapidly respond to emergencies, such as break-ins or fires. It is not known if Mr Aisa is authorised to carry a weapon. However, if so, I would expect his licence would be revoked. Regardless, the after effects of methylamphetamine, i.e. once stimulant effects have worn off, include fatigue, weariness and a slowness in reaction. These effects would be detrimental to the position held by Mr Aisa.

4. Any other matters that may be relevant for the Commission to consider.

a. The Commission should consider the likelihood that Mr Aisa had used methylamphetamine on previous occasions and therefore there is a risk of impairment, either acute or post euphoric, while working as a security guard.

5. What effect these drugs might have on an individual's recollection of events of that day.

a. Simon et al [3] reported that regular users of methylamphetamine exhibit deficits in memory and in manipulating information. The authors postulated, "The pattern of memory functioning found for MA users is consistent with a mild generalized retrieval deficit that is manifested in the more difficult memory tasks".

• [48] Dr Lewis' report cited the following references:[45]

1. Schepers et al Methamphetamine and Amphetamine Pharmacokinetics in Oral Fluid and Plasma after Controlled Oral Methamphetamine Administration to Human Volunteers. Clinical Chemistry (2003) 49 (1) 121-132.

1. Simon et al Cognitive Impairment in Individuals Currently Using Methamphetamine. The American Journal on Addictions (2000) 9 222-231.

1. Cook et al Pharmacokinetics of Methamphetamine Self-administered to Human Subjects by Smoking S-(+)-Methamphetamine Hydrochloride Drug Metabolism and Disposition 1993 21 (4) 717-72.

• [49] In evidence before the Commission, Dr Lewis:

• • Stated that the prospects of recollection are better in a person who does not have methylamphetamine in their system compared to a person who does;[46]

• • Confirmed his opinion that a reading of 208 ng/mL indicates that the drug was taken within hours of the test;[47]

• • Stated that although it can depend upon how frequently a person may be using methylamphetamine, a person with a reading of 208 ng/mL would generally experience positive stimulant effects such as feelings of euphoria, feeling good and jovial, being alert, a high heart rate, very talkative and sociable;[48]

• • Stated that the pharmacological effects of methylamphetamine are generally experienced in the range of 4-9 hours of the test;[49]

• • Stated that the negative effects which are prevalent in long-term users are an increase in risky behaviour and the taking of unnecessary risks;[50] and

• • Stated that once the stimulation wears off there would be drowsiness, sleepiness, and the person can go into a depressive mood.[51]

• [50] A threshold issue to determine is whether Mr Aisa has been dismissed from his employment.[52]

• [51] There was no dispute between the parties as to whether Mr Aisa has been dismissed, and I find that Mr Aisa's employment with SXP was terminated at the initiative of SXP.

• [52] I am therefore satisfied that Mr Aisa has been dismissed within the meaning of s.385 of the FW Act.

• [53] Section 396 of the FW Act requires the Commission to decide four initial matters before considering the merits of the application.

• [54] There is no dispute between the parties, and I am satisfied on the evidence that:

(a) the application was made within the period required in s.394(2);

(b) Mr Aisa is a person protected from unfair dismissal;

(c) the Small Business Fair Dismissal Code did not apply to Mr Aisa's dismissal; and

(d) Mr Aisa's dismissal was not a case of genuine redundancy.

Was the dismissal harsh, unjust or unreasonable?

• [55] Section 387 of the FW Act provides that in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account:

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

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

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

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

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

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

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

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

• [56] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me.[53]

• [57] I set out my consideration of each below.

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

• [58] In order for there to be a valid reason, the reason for the dismissal should be "sound, defensible or well founded"[54] and should not be "capricious, fanciful, spiteful or prejudiced."[55] However, the Commission will not stand in the shoes of the employer and determine what the Commission would do if it was in the position of the employer.[56]

• [59] Where a dismissal relates to an employee's conduct, the Commission must be satisfied that the conduct occurred and justified termination.[57] "The question of whether the alleged conduct took place and what it involved is to be determined by the Commission on the basis of the evidence in the proceedings before it. The test is not whether the employer believed, on reasonable grounds after sufficient enquiry, that the employee was guilty of the conduct which resulted in termination."[58]

• [60] Furthermore, and as a Full Bench of the Commission has said "[a] failure to comply with a lawful and reasonable policy is a breach of the fundamental term of the contract of employment that obliges employees to comply with the lawful and reasonable directions of the employer. A substantial and wilful breach of a policy will often, if not usually, constitute a valid reason for dismissal."[59]

• [61] In the context of drug and alcohol policies in the workplace, in Sydney Trains v Reece Goodsell,[60] a Full Bench of the Commission undertook a detailed analysis of the decisions in

Harbour City Ferries Pty Ltd v Toms[61] (Toms), Sharp v BCS Infrastructure Support Pty Limited[62] (Sharp) and Hilder. After setting out a summary of those decisions, the Full Bench made the following observations:[63]

[100] The Full Bench decisions in Toms, Sharp and Hilder, do not establish a decision rule, or stand as authority for the principle that in cases involving a dismissal for breach of a drug and alcohol policy, an employer must establish a risk that an employee dismissed for returning a positive drug test in breach of such a policy was impaired at work. To the contrary, those cases all make clear that the fact that an employee attends for work and returns a positive test for a prohibited substance, may of itself, constitute a valid reason for dismissal for the purposes of s. 387(a) of the Act... A finding as to whether a particular employee dismissed for breaching a drug and alcohol policy was or was not impaired at work, may be relevant to the question of whether a dismissal is unfair but a conclusion that a dismissal is not unfair does not require a finding that there was a risk of impairment.

[101] Toms, Sharp and Hilder, concerned employees who attended for work and tested positive to cannabinoids, indicating use of cannabis, rather than impairment. In each case, the test showed that the employees had used a prohibited substance and the reason for dismissal was returning a non-negative result in a drug test conducted at work. The test results in each case indicated past use, not present impairment. Significantly, impairment at work was not a reason for dismissal relied on by the employers as constituting a valid reason for dismissal. It is also the case that lack of impairment at work, relevant to the issue of whether the dismissal in each case was unfair, referred to visible or discernible impairment, rather than an assessment of impairment by reference to the levels of cannabinoids recorded in the test results for the employees. While the first instance decision in Sharp recorded that the employer's evidence was that the substance for which the employee tested positive was an active ingredient and that his high levels posed a safety risk, none of these cases involved the Commission making an assessment of the likelihood of impairment at work, by reference to the amount by which the dismissed employees' test results exceeded the cut-off levels for substances, either for the purposes of whether there was a valid reason for dismissal under s. 387(a) or as a matter considered to be relevant under s. 387(h).

[102] In Toms and Sharp, there was a finding at first instance, confirmed on appeal, that a breach of a drug and alcohol policy simpliciter by the employees attending for work and returning a non-negative test for a proscribed substance, was a valid reason for dismissal. These findings were endorsed by the Full Benches that considered each appeal. In Hilder the Full Bench held that the finding at first instance that the dismissal was not for a valid reason, was erroneous and that Mr Hilder attending for work with a proscribed level of drugs in his system, was a valid reason for dismissal. In this regard, the Full Bench in Hilder distinguished between a policy requirement pertaining to a matter which is trivial in nature or inessential to the fundamental requirements of the employee's employment, where a breach on a single occasion is unlikely to constitute a valid reason for dismissal, and compliance with a policy that is a fundamental element of employment. In relation to the drug and alcohol policy in that case, the Full Bench noted that it is designed to ensure that employees do not perform safety-critical functions with drugs or alcohol in their system.

[103] It is also significant that the fact that each employee had used cannabis outside of work was not a reason for dismissal. Breach of the employer's policy by attending for work and returning a non-negative test for a proscribed substance, was viewed by the Full Benches in Sharp and Hilder to be "at work" conduct and it was made clear that the out of hours conduct of using cannabis was not the reason for dismissal...

[104] It was observed by the Full Bench in Sharp (cited in Hilder) that it was relevant to the consideration of whether a drug and alcohol policy is lawful and reasonable (and by extension to the validity of the reason for dismissal), that cannabis is a substance in respect of which there is currently no direct scientific test for impairment. The policy the Full Bench in those cases was discussing, was a blanket policy involving testing which establishes use of a substance rather than impairment. The reasonableness of the policy was said to be based on factors such as the nature of the work that employees are performing and that there is no reliable scientific test for impairment. Such policies are directed at managing a general risk associated with the attendance at work by employees who have used prohibited substances outside of work and have traces of such substances in their systems when they report for work. This risk can exist regardless of whether an employee who tests positive, is impaired. This is the point that was made by the Full Bench in Toms in paragraph [27] of their decision, extracted by the Deputy President in the decision subject of the present appeal.

[105] ... The risk that the Full Bench identified in paragraph [27] was not an actual risk that Mr Toms was impaired by a proscribed substance when the incident occurred. Rather, the Full Bench was referring to broader reputational and legal risk to Harbour City Ferries, if the incident had been more serious and the media or person injured had discovered that the Master of its vessel at the time of the incident, had returned a positive test for a prohibited substance, in breach of the Company's policy. The reputational and legal risk identified by the Full Bench existed, regardless of whether Mr Toms was impaired, at the time an incident occurred...

[110] The Full Benches in Sharp and Hilder identified that blanket policies may be lawful and reasonable because employers do not have a direct scientific test which can reasonably be administered to measure impairment at work caused by drugs, or to independently ascertain when, and how much, of a prohibited substance was consumed outside of work, by employees who test positive at work. This is a risk that may justify the implementation of a generally applicable or blanket policy providing for disciplinary action up to dismissal for a breach, simpliciter, and result in that policy being lawful and reasonable, at least with respect to employees performing safety critical work, notwithstanding that such a policy indirectly impacts on out of hours conduct involving the use or consumption of prohibited substances.

[111] A "zero-tolerance" approach, may involve an assumption that an employee who reports for work and returns a positive test for a prohibited substance above stipulated levels, poses a present and future risk of attending work impaired, regardless of the fact that the employee may not be exhibiting symptoms of impairment at the time the positive result is returned, and has not used a prohibited substance at work. There will be cases where this is sufficient for a dismissal to be found not to be unfair. However, it may also be open for the Commission to find that a dismissal in such circumstances is unfair when all the matters encompassed in s. 387 are considered.

• [62] After dealing with each of the appeal grounds, the Full Bench in Sydney Trains v Reece Goodsell made the following remarks:

...we entirely accept that employees using prohibited drugs and attending for work in circumstances where they produce a non-negative drug test and/or a confirmatory drug test result, is a serious issue that is fraught with difficulty for employers. As we have said, while employers generally do not have the right to control out of hours conduct engaged in by their employees, including conduct involving the use of prohibited drugs, they do have the right to implement lawful and reasonable policies and procedures to control the risks associated with access to workplaces of employees who are, or who are at risk of attending for work, impaired by drugs. Those risks are not limited to possibility of injury to the impaired employee or to other employees but may extend to the risk of legal liability of the employer to other employees, clients, customers or third parties and reputational damage to the employer.

[157] It also remains the case that while a breach of a lawful and reasonable drug and alcohol policy may of itself provide a valid reason for dismissal, there will be cases where other relevant circumstances mitigate the misconduct of an individual employee who returns a positive test. Those circumstances may be personal to the employee or involve a general lack of understanding of the policy in the workplace. However, where a drug and alcohol policy is clear and intelligible to the relevant employees, promulgated in the workplace, and informs them in practical terms about the testing process and the substances being tested for, including where testing is to identify use rather than impairment, the potential for incidents of unfairness arising from a lack of understanding by an individual employee is likely to be reduced, notwithstanding that no amount of clarity can derogate from the right of an employee not to be subjected to dismissal for breach in a manner that is unfair, because it is harsh, unjust or unreasonable.

[159] We would also add that our decision in this case should not be viewed as an acceptance that in dealing with an unfair dismissal application concerning a breach of a drug and alcohol policy, it will be generally appropriate for the Commission to undertake an analysis and make a finding about the level of impairment, or whether there was a risk that a dismissed employee was impaired. As we have stated, the risks associated with employees who have consumed proscribed drugs attending for work with traces of those drugs in their systems, go beyond the risk of an individual employee being impaired at work. There is an overarching risk identified by the Full Bench in Toms that an employee with a prohibited substance in their system creates a reputational and legal risk for the employer regardless of whether the employee is impaired. In the present case, the general risk at which the Policy was directed, was recognised by the finding that Mr Goodsell's dismissal was for a valid reason. In relation to mitigation, there was medical and scientific evidence to support a finding that Mr Goodsell was not impaired at work. That will not be so in every case and given the serious implications of breaches of drug and alcohol policies, and the responsibilities of employers in providing and maintaining safe workplaces and systems of work, findings about whether an employee was impaired at work should be made by the Commission with caution and based on clear and cogent evidence.

• [63] SXP submits that each of the following constitutes a valid reason for dismissal:

1. That Mr Aisa engaged in conduct that breached SXP's drug and alcohol policies; and

1. That Mr Aisa engaged in conduct in breach of his contract of employment by consuming methylamphetamine whilst on duty and being under the influence of methylamphetamine whilst on duty

That Mr Aisa engaged in conduct that breached SXP's drug and alcohol policies

• [64] I have no hesitation in finding that Mr Aisa breached SXP's Drugs and Alcohol Test Procedure on 21 November 2024 by returning a positive drug test for methylamphetamine of 208.3 ng/mL which was in excess of the minimal detectable amount of 50 ng/mL.

• [65] I also have no hesitation in finding the Drugs and Alcohol Testing Procedure is in clear and intelligible terms, was promulgated in the workplace, refers to the test results being relative to minimum detectable amounts as opposed to measuring impairment, and that Mr Aisa was aware of and understood the policy.

• [66] Although Mr Aisa stated that he was not aware of SXP's drug and alcohol policy during the show cause meeting, he accepted during the proceedings that had reviewed and was inducted on SXP's Employee Handbook, which includes the relevant drug and alcohol policies.

• [67] SXP's drug and alcohol policies are directed towards ensuring that it provides a safe working environment for all workers and ensuring that the safety of the workplace, the quality of the security services it provides, and its reputation are not compromised by drug and/or alcohol affected workers.

• [68] In the context of Mr Aisa's position as security guard, which includes duties such as responding to emergencies, I find SXP's policy that employees must not return a positive drug test for methylamphetamine in excess of 50 ng/mL is a lawful and reasonable direction and that Mr Aisa's breach of that policy on 21 November 2024 constituted a valid reason for his dismissal.

That Mr Aisa engaged in conduct in breach of his contract of employment by consuming methylamphetamine and being under the influence of methylamphetamine whilst on duty

• [69] SXP submits that based on Dr Lewis' uncontested evidence, Mr Aisa must have consumed methylamphetamine whilst on duty and must have been under the influence of methylamphetamine whilst on duty.

• [70] SXP did not rely on this as a reason for dismissal, submitting that it was only after obtaining the report of Dr Lewis in response to Mr Aisa commencing these proceedings that it formed the view that Mr Aisa must have consumed methylamphetamine whilst on duty and was impaired. I accept SXP did not have a full understanding of, or did not correctly analyse, the positive test results, prior to receiving the report of Dr Lewis, and can rely on that in defence of this application.[64] Notwithstanding that, it remains for the Commission to determine whether this constitutes a valid reason for dismissal.

• [71] Dr Lewis opined that a test level of 208.3 ng/mL indicates that the methylamphetamine was consumed within hours and indicated a range of 4-9 hours. Mr Aisa was tested approximately 11.5 hours after commencing his shift. If Dr Lewis is correct, Mr Aisa must have consumed methylamphetamine whilst on duty and was most likely impaired whilst on duty.

• [72] However, Dr Lewis also opined that "the levels of methylamphetamine and its metabolite, amphetamine, are indicative of recent use. A single oral fluid level cannot be correlated with dose, frequency of use or an exact time of use."

• [73] Mr Aisa denies that he consumed methylamphetamine at work or that he was impaired during his shift and there is no evidence that he was showing any physical signs of impairment.

• [74] As set out above, in Sydney Trains v Goodsell, the Full Bench stated that findings about whether an employee was impaired at work should be made by the Commission with caution and based on clear and cogent evidence.

• [75] Having regard to Dr Lewis' evidence that the positive test result is indicative of recent use rather than impairment, and that a single oral fluid level cannot be correlated with exact time of use, I am not satisfied that Mr Aisa consumed methylamphetamine whilst on duty or was impaired from the consumption of methylamphetamine whilst on duty.

• [76] I have found that SXP had a valid reason for the termination of Mr Aisa's employment, being his breach of the Drugs and Alcohol Testing Procedure. The finding of a valid reason weighs in favour that the dismissal was not harsh, unjust, or unreasonable.

Was the Applicant notified of the valid reason and given an opportunity to respond to that valid reason?

• [77] Proper consideration of s.387(b) requires a finding to be made as to whether the applicant "was notified of that reason". Contextually, the reference to "that reason" is the valid reason found to exist under s.387(a).[65]

• [78] Mr Aisa was notified of the reason for his dismissal in the show cause letter dated 25 November 2024 and the letter of termination dated 29 November 2024. Mr Aisa was also given an opportunity to respond to the reason for his dismissal. These factors weigh in favour that Mr Aisa's dismissal was not harsh, unjust or unreasonable.

Did the Respondent unreasonably refuse to allow the Applicant to have a support person present to assist at discussions relating to the dismissal?

• [79] SXP did not refuse to allow Mr Aisa to have a support person. This factor weighs neutrally in my consideration.

Was the Applicant warned about unsatisfactory performance before the dismissal?

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

To what degree would the size of the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [81] Neither party submitted that the size of SXP's enterprise was likely to impact on the procedures followed in effecting the dismissal and I find that the size of SXP's enterprise had no such impact. This factor weighs neutrally in my consideration.

To what degree would the absence of dedicated human resource management specialists or expertise in the Respondent's enterprise be likely to impact on the procedures followed in effecting the dismissal?

• [82] It is not in dispute, and I find that SXP's enterprise did not lack dedicated human resource management specialists and expertise. This factor weighs neutrally in my consideration.

• [83] Section 387(h) requires the Commission to take into account any other matters that the Commission considers relevant.

• [84] Mr Aisa submitted that the testing procedure was unfair because SXP's evidence concerning finding the bong was fabricated to justify the testing, and that he was allowed to continue working throughout the initial testing procedure and secondary testing procedure. I do not accept this submission. While I accept Ms Keirouz's evidence that the finding of the bong was the catalyst for testing security guards on 21 November 2024, under its policies SXP has the discretion to conduct random and targeted drug and alcohol testing and there was no unfairness in SXP's decision to test Mr Aisa for drugs and alcohol on 21 November 2024. As to being allowed to continue working, I accept Mr Aisa continued to be 'on duty' and was monitoring the CCTV cameras throughout the testing process. I also accept clause 7 of the Drugs and Alcohol Testing Procedure provides that upon return of a non-negative test, the worker must not return to work for the remainder of their shift. This suggests that workers are excused from duty when being tested. However, I do not consider, and Mr Aisa has not demonstrated how, SXP's failure to comply with this aspect of its policy has resulted in any unfairness towards Mr Aisa.

• [85] Mr Aisa also submitted that his dismissal was harsh because summary dismissal was a disproportionate response. SXP submitted that summary dismissal was not harsh, unjust or unreasonable, as Mr Aisa's conduct constituted serious misconduct as defined in reg.1.07 of the Fair Work Regulations 2009. In Sharp, the Full Bench discussed the question of whether particular conduct by an employee warranted their summary dismissal as an "other relevant matter" within the meaning of s 387(h) of the FW Act with reference to the reg.1.07. The Full Bench stated:

[33] The relevance of the definition of "serious misconduct" in reg.1.07 to the matter is also, with respect, obscure. Section 12 of the Act contains a definition of "serious misconduct" for the purposes of the Act which simply cross-refers to reg.1.07. Apart from s.12 itself, the expression "serious misconduct" is used in only three places in the Act. In s.123(1)(b), a dismissal for serious misconduct is a circumstance in which the notice and redundancy entitlement provisions of Pt 2-2 Div 11 are not applicable; in s.534(1)(b) a dismissal for serious misconduct is one to which the requirements for notification and consultation in Pt 3-6 Div 2 do not apply; and in s.789(1)(b) a dismissal for serious misconduct is one in relation to which the requirements established by Pt 6-4 Div 3 for notification and consultation do not apply. The expression "serious misconduct" is not used anywhere in Pt 3-2, Unfair Dismissal, of the Act. Section 392(3) requires the Commission, in relation to the award of compensation for an unfair dismissal, to reduce the amount that it would otherwise order by an appropriate amount where it is "satisfied that the misconduct of a person contributed to the employer's decision to dismiss the person". However, it is clear that conduct may constitute "misconduct" for the purpose of s.392(3) without necessarily being "serious misconduct". The expression is used in the Small Business Fair Dismissal Code, but that had no application in this case (and it is at least highly doubtful in any event whether the reg.1.07 definition applies to the Small Business Fair Dismissal Code). Reg.1.07 therefore had no work to do in the application of the provisions of Pt 3-2 to the circumstances of this case.

[34] It may be accepted that an assessment of the degree of seriousness of misconduct which has been found to constitute a valid reason for dismissal for the purposes of s.387(a) is a relevant matter to be taken into account under s.387(h). In that context, a conclusion that the misconduct was of such a nature as to have justified summary dismissal may also be relevant. Even so, it is unclear that this requires a consideration of whether an employee's conduct met a postulated standard of "serious misconduct". In Rankin v Marine Power International Pty Ltd Gillard J stated that "There is no rule of law that defines the degree of misconduct which would justify dismissal without notice" and identified the touchstone as being whether the conduct was of such a grave nature as to be repugnant to the employment relationship. "Serious misconduct" is sometimes used as a rubric for conduct of this nature, but to adopt it as a fixed standard for the consideration of misconduct for the purpose of s.387(h) may be confusing or misleading because the expression, and other expressions of a similar nature, have been considered and applied in a variety of contexts in ways which are influenced by those contexts. In McDonald v Parnell Laboratories (Aust) Pty Ltd Buchanan J said:

"[48] The terms 'misconduct', 'serious misconduct' and 'serious and wilful misconduct' are often the subject of judicial and administrative attention as applied to the facts of particular cases but there is relatively little judicial discussion about their content and meaning. Naturally enough, when the term 'serious misconduct' is under consideration an evaluation of what conduct represents 'serious' misconduct is influenced by the (usually statutory) setting in which the phrase must be given meaning and applied. Frequently, for example, the question at issue is whether an employee is disentitled by reason of his or her conduct to a statutory entitlement (eg. in New South Wales, where Ms McDonald was employed, see Long Service Leave Act 1955 (NSW) s 4(2)(a)(iii); Workers Compensation Act 1987 (NSW) s 14(2)."

[35] In the Decision, the Vice President, correctly, did not attempt to address the parties' submission concerning "serious misconduct" in the context of his consideration of whether there was a valid reason for the dismissal, but only as a relevant matter under s.387(h). His findings at paragraph [55] and [56] that Mr Sharp's conduct was "serious misconduct" was, we consider, responsive to the submission of BCS noted in the first sentence of paragraph [52] that "the Applicant's conduct constituted serious misconduct justifying immediate dismissal". That is, "serious misconduct" was used as a shorthand expression to described misconduct of a nature that justified summary dismissal. A finding of that nature was a matter which was open to be taken into account as relevant under s.387(h) because it involved an assessment of the seriousness of the conduct in question.

• [86] I do not consider in the circumstances of this matter that the summary dismissal of Mr Aisa was a disproportionate response to his conduct. In coming to this conclusion, I have had regard to the purpose of SXP's drug and alcohol policies, that Mr Aisa was aware of those policies, Mr Aisa's role, duties and length of service, and that the positive test result was in excess of four times the minimum detectable amount.

• [87] Finally, I have considered whether SXP's report to the SLED has resulted in any disproportionate impact upon Mr Aisa and note that at the time of issuing this decision, the New South Wales Security Industry Register records Mr Aisa as having a current security licence which expires in 2026.

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

• [88] I have made findings in relation to each matter specified in section 387 as relevant. I must consider and give due weight to each as a fundamental element in determining whether the termination was harsh, unjust or unreasonable.[66]

• [89] Having considered each of the matters specified in section 387 of the FW Act, I am not satisfied that the dismissal of Mr Aisa was harsh, unjust or unreasonable.

• [90] In coming to this decision, I have taken into account all of the evidence and submissions of the parties. I have also had regard to the object stated at s.381(2) of the FW Act to ensure that a "fair go all round" is accorded.

• [91] Not being satisfied that the dismissal was harsh, unjust or unreasonable, I am not satisfied that Mr Aisa was unfairly dismissed within the meaning of section 385 of the FW Act.

• [92] The Application is dismissed. An Order to that effect will be issued with this decision.

[2] PR785771.

[4] Exhibit A2; Exhibit R4 at [2], [8], Annexure KM4.

[6] Exhibit A2; Exhibit R4, Annexure KM4.

[10] Exhibit R4 at [7], Annexure KM3.

[12] Exhibit R3 at [6], Annexure NK2.

[14] Exhibit R3 at [9], Transcript at PN148.

[15] Exhibit R3 at [10]-[11]; Transcript at PN501-PN502.

[25] Exhibit A1; Exhibit A2 (HBpp.81-82); Transcript at PN210-PN243.

[27] Exhibit R3, Annexure NK3; Transcript at PN386-PN391.

[28] Exhibit R3 at [18], Annexure NK3, Exhibit R4 at [11].

[30] Exhibit A1; Exhibit R3 at [12], Annexure KM5; Exhibit R4 at [19], Annexure NK4.

[32] Exhibit R4 at [15], Annexure KM6.

[36] Transcript at PN193, PN198-PN199, PN236-PN238

[44] Exhibit R2, Annexure JL2; Transcript at PN433-PN444, PN467-PN468.

[53] Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [69].

[54] Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371, 373.

[56] Walton v Mermaid Dry Cleaners Pty Ltd [1996] IRCA 267; (1996) 142 ALR 681, 685.

[57] Edwards v Justice Giudice [1999] FCA 1836, [7]; Sydney Trains v Hilder [2020] FWCFB 1373 (Hatcher VP, Clancy DP, Bissett C) (Hilder) at [26].

[58] King v Freshmore (Vic) Pty Ltd Print S4213 (AIRCFB, Ross VP, Williams SDP, Hingley C, 17 March 2000), [23]-[24]; Hilder [at [26].

[59] B, C and D v Australian Postal Corporation t/a Australia Post [2013] FWCFB 6191 at [36].

[60] [2024] FWCFB 401.

[61] [2014] FWCFB 6249.

[62] [2015] FWCFB 1033.

[63] Sydney Trains v Reece Goodsell at [100]-[111].

[64] Gold Tiger Logistics Qld Pty Ltd v Audrey Campbell [2024] FWCFB 458 at [61].

[65] Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19]; Reseigh v Stegbar Pty Ltd [2020] FWCFB 533 at [55].

[66] ALH Group Pty Ltd t/a The Royal Exchange Hotel v Mulhall (2002) 117 IR 357 at [51]. See also Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002) at [92]; Edwards v Justice Giudice [1999] FCA 1836 at [6]- [7].

Printed by authority of the Commonwealth Government Printer