• [103] Mr Johnston stated that he recalled having a conversation with Mr Muscat to the following effect:

Mr Johnston: We maintain the position that smoking pot in one's personal life is not serious misconduct in any way. The purpose of the drug and alcohol policy is to ensure that employees aren't under the influence of illicit substances while at work and can competently perform their duties without compromising the health and safety of themselves and others.

Mr Muscat: He failed the test, we can't have people at work impaired. What if was outside lashing? He could put people at risk. Luckily, he was upstairs and less risk in the clerical section.

Mr Johnston: Yes so you're saying on this day if he was impaired he posed less risk, however we maintain he was not impaired at all. Other than the single test what other independent evidence is there that Craig was impaired whilst at work. Craig engaged with supervisors and managers throughout the day. He was competently performing his duties and his work was not called into question once that day indicating he was not impaired. Would you agree?

Mr Muscat: Yes - no one questioned his work that day or suspected he was under the influence of drugs.

Mr Johnston: The urine sample is merely an indicator of historical use and there is substantial literature that supports the fact that it in no way is an indicator of impairment.

Mr Muscat: We could not know for sure we are not doctors. We don't know whether it indicates impairment or not, but we do know he breached DP World policy and that it was a high reading.

Mr Johnston: So at most, the urine test merely suggests that he had smoked pot in is time off which he a has admitted to and since ceased doing. To severely discipline Craig for smoking pot during his personal time without further substantial or independent evidence that he was impaired whilst at work is not justified. There is no case to terminate the employment of someone when they have no concrete evidence other than a single swab test that is relied upon to state they were impaired while performing their job. There are other options available in the policy. Craig is a 25-year employee, maintains a good work history with a large amount of knowledge in the clerical section, his work has never been called into question. He has received tremendous support from other employees, the production team and also some supervisors. He has outlined his mental health issues. He has accepted responsibility for his actions, realised the error of his ways and committed to ongoing help and counselling, he is able to demonstrate that the relationship of trust and confidence and his ability to continue his employment without ever failing another test. Understands the seriousness of the situation. As per the letter Craig will comply with all requirements imposed upon him, counselling, ongoing drug testing and attending a Drug and Alcohol awareness course.

• [104] Mr Johnston stated that the two men then took a break of approximately 20-30 minutes. When they returned to the meeting, a conversation took place to the following effect:

Mr Hanley: We have considered what you have said, and the letter provided. The policy is clear, the test complies with Australian standards and the Company has made it clear that employees have to self-declare. You are a senior member of the ERC you should be aware of the policy requirements. We deem this serious and wilful misconduct and cease your employment immediately. No notice period applies but we will pay you all your entitlements, clear out your locker and take your personal belongings.

Mr Johnston: It is absolute that the company always terminates someone with what you call a high range reading? The policy says if the result of the test is high range in accordance with the approved levels contained at Appendix B, then the employee may be subject to termination of their employment with the Company.

Mr Johnston: Given this, under what circumstances if someone tested over the high range detection level would they not be terminated. Is there any? What if he self-declared?

Mr Muscat: He could have called us when he was on leave.

Mr Johnston: So, you are unable to provide us anything that could change the outcome?

Mr Hanley: We have to focus on safety and enforce the policy. We deem this breach serious and wilful. Therefore, we have decided on termination.

Mr Johnston: I believe this was predetermined and you have not taken into account what has been said. It is unjust to consider any other options considering his length of service. Craig has passed many other random drug tests in the past and his work has never been questioned. There are other options that have not been considered and the policy states 'may be terminated', but you have not seemingly considered them. Have gone for the most extreme outcome due to who Craig is in the workplace as a delegate.

Mr Hanley: We have considered other options but still consider this as serious and wilful misconduct, so we have no other option. you'll need clear out all your belongings.

• [105] Mr Johnston stated that the Applicant was understandably quite distressed and confused given his previous record, and to be terminated without any other considerations seemed very harsh. He told Mr Johnston that he was extremely worried about the future, the impact on his family, and how he would provide for them. He told Mr Johnston that after the meeting he was disappointed as he knew of other employees at DP World who breached the Alcohol and Other Drugs (AOD) policy who were put on random and regular drug tests or were suspended without pay whilst they sought treatment.

• [106] Mr Johnston stated that the Respondent's policy had been subject to considerable contention over the years. In the Applicant's case, there has been no liberty or alternative option provided to him, despite there being other less harsh options under the policy that the Company could have taken. Those options included placing the Applicant on unpaid suspension so he could seek help to ensure that he returned to work drug free, supporting a rehabilitation plan, testing him on a regular basis for 12 months to ensure that he was free of drugs, or a combination of those alternatives.

• [107] Mr Johnston stated that as a workplace delegate at DP World and now as a union official, he is aware of a number of instances where an employee has breached the policy and has not been terminated. In the last few years there have been instances where employees who had fewer years of service than the Applicant breached the policy and were not terminated. Whilst in those circumstances, the drugs involved and readings may have been different, I am aware that they were all afforded the option of a suspension without pay in order to seek treatment and rehabilitation or placed on a regime of targeted testing.

• [108] In particular, Mr Johnston stated that two of the employees involved who failed for THC were both placed on a regime of targeted testing. Mr Johnston stated that he believed that, given the Applicant's length of service, his admission of having a problem, and commitment to rehabilitation, there was an option other than termination that could (and should) have been afforded to him.

• [109] Mr Johnston stated that in his experience as workplace delegate and union official, he was aware that the company has discretion to offer rehabilitation support to employees under the AOD policy. The policy states:

'DP World recognises alcohol or other drug dependency as a treatable condition. Any person who suspects that they have an alcohol and other drug dependency condition is encouraged to seek advice and to obtain appropriate medical treatment.'

• [110] Whilst the Applicant did not self-declare, he did retrospectively realise the dependency he had developed in a short period of time. This is not an easy thing to confront, but he was committed to the treatment and counselling that he had commenced - all of which the company completely dismissed in deciding to terminate his employment. That decision, it was submitted, is not aligned with its policy of viewing drug dependency as a treatable condition and encouraging individuals to seek help.

• [111] Additionally, Mr Johnston stated that the policy clearly states that termination 'may' result due to breaches, where the readings are deemed high. However, in this instance Mr Muscat and Mr Hanley were unable to explain to Mr Johnston what could have mitigated or changed the outcome for the Applicant, apart from possibly taking self-declaration into account. However, as soon as the Applicant had realised what a bad place he was in, he was open to DP World and declared that his mental health struggles led to his marijuana use. It would seem reasonable that what the Applicant disclosed there were mitigating circumstances that should have been seriously taken into consideration.

• [112] Mr Johnston stated that the Applicant has undergone, and continues to undergo, counselling to ensure he does not regress and return to the poor mental state he was in.

• [113] The Applicant was open and up front with the Company about his mental health. As outlined in the letter that the Applicant wrote in response to the Show Cause Letter, it was known amongst the clerical workers with whom he spent the majority of his time at work, and some other operational employees that the Applicant had battled and continued to battle mental health issues, for which he had to seek professional help and receive treatment. The Applicant however had not reported such to management.

• [114] The Clerical division of workers at DP World is a small group of employees who spend the entire shift sharing the same office space with operational supervisors and the production team. Due to this, a relationship was often formed where employees would conduct conversations about their personal lives. During those discussions the Applicant disclosed his issues with mental illness and his troubles at home.

• [115] The Applicant submitted that his role was not safety critical, as contended by the Respondent in an attempt to make relevant the reasoning in Sharp v BCS Infrastructure Support Pty Limited (Sharp),[7] wherein the Full Bench held:

"...employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable" (emphasis added).[8]

• [116] The Applicant refuted the Respondent's position that the Applicant, being a qualified stevedore, could hypothetically be assigned to perform duties that are safety critical. The Applicant described such position as illusory, arguing that during the entirety of the Applicant's tenure, he was never removed his role once he was restored to perform controller/toggle operator duties. The Applicant submitted that it would be improper for the Commission to determine that the Applicant worked in a safety critical safety role solely based on there always being a theoretical possibility that the company could remove him from his clerical role mid shift and assign him to perform safety critical stevedore duties.

• [117] The Applicant further asserted that the Respondent distorts the record in an effort to make it appear that the Applicant's clerical role was safety critical. For example, the Respondent described the Applicant's duties, giving the impression that even the slightest mistake by the Applicant could have catastrophic results. In the Respondent's "misleading description" of his job. The Applicant confirmed that he routinely hoisted 32-ton containers with cranes "above a worker" in a safety zone. The Applicant argued that the Respondent would have the Commission believe that its automated terminal does not contain safety controls that would prevent a 'clerical' worker from dropping shipping containers on the heads of unsuspecting employees and contractors.

• [118] The Applicant advised that the automated terminal was designed with safety concerns at the forefront. It was submitted that the automated system has laser sensors that shut down the system if they detect movement from an object. Thus, even if, as Mr Hanley speculated, the Applicant directed someone into an exclusion zone, trip lasers would shut down the system and not allow anybody to get near moving equipment. The Applicant asserted that it was false to state that the Applicant worked in a safety critical role.

• [119] The Applicant noted that it is the evidence of Mr Hanley that anyone who comes "onto the terminal as a contractor or a visitor" has safety critical responsibilities. While Mr Hanley's safety-first concerns are commendable, the Applicant submitted that the reality is that a stevedore who operates heavy machinery could cause serious injuries if they performed their job negligently, while an office worker's carelessness would likely result in no harm whatsoever. It was submitted that it is for that reason that the Full Bench has limited to workers who perform safety critical work determinations that zero-tolerance drug and alcohol policies that authorise the dismissal of employees for a single positive test for THC are lawful and reasonable.

• [120] Finally, the Respondent maintains that it is "alarming" that the Applicant "continues to maintain that his role was not safety critical". While the Applicant readily conceded that there was a slight possibility that he could do property damage if he was inattentive, it was submitted that the fact is that the safety controls that are built into the Respondent's automated crane stacking system would prevent him from causing injury to anyone even if he tried.

• [121] The Applicant noted that it is the Respondent's position that the Full Bench's decision in Sharp mandates a finding that the policy was both lawful and reasonable. That assertion is predicated on the Respondent's claim that the policy, similar to that of Sharp, stipulate that "termination may result from a positive drug test". The Applicant however noted that the policy in Sharpe did not, in fact, state that termination "may" result from a positive test. Rather, the policy at issue provided that:

"...an employee who returns a positive test result will be subject to disciplinary action in accordance with the Respondent's Disciplinary Policy. The Respondent's Disciplinary Policy provided ... that consumption or use of drugs or alcohol in breach of the Respondent's or a client's DAMP is an act of serious misconduct."[9]

• [122] It was argued that as the Full Bench recognised, the employer in Sharp "had, in effect, a zero tolerance policy in relation to positive test results".[10] The Applicant advised that Respondent's policy in the current matter advised that a positive test could result in the company (1) requiring a "negative urine result before returning to work"; (2) offering rehabilitation support to an employee who tests positive; (3) taking corrective disciplinary action; or (4) terminating the employee.

• [123] The Applicant submitted that a breach of a policy that fails to make "clear to employees that any breach is likely to result in termination of employment" is fundamentally unreasonable and does not provide an employer with a valid reason for termination of employment.[11] Therefore, unlike the policy at issue in Sharp, the Applicant argued that the Respondent's drug and alcohol policy failed to provide it with a valid reason for terminating the Applicant's employment.

• [124] The Applicant noted that the Respondent defends the integrity of the test result, basing on the Applicant's admission to consuming cannabis the night before he was tested, and because he tested non-negative for THC on an oral swab test. It was submitted that neither the Applicant's admission nor the oral swab test establishes that he had a level of THC in his system that exceeded the cut-off levels in the Respondent's policy. The Applicant argued that the Respondent relies on nothing but hearsay evidence in support of its position, contrary to what is written on the actual test result. The Respondent submitted that the test result did comply with chain of custody requirements. The Applicant notes the following evidence in which the company relied on:

• testimony from Michelle Williams that the only way in which the result did not comply with chain of custody requirements was because an incorrect birthday was recorded on sample test tubes; and

• a letter from the Director of Brassets Group saying that the test complied with chain of custody requirements without disclosing how she had established that purported fact. The cross examination went to this point.

• [125] To find that the test result complied with the relevant Australian standard, the Applicant argued that it would be necessary to accept as fact all of the assumptions that Dr Williams made about the collection and testing process and assume that Deborah Brass had a sound factual basis for stating that the chain of custody had been maintained. The Applicant asserted that the Applicant's test leaves substantial doubt as to the integrity of the result. The Respondent took the expert witness squarely to this matter.

• [126] The Applicant refuted the Respondent's claim that the Applicant had engaged in serious misconduct, stating that he had no reasonable basis for concluding that he would be fit for work on 11 August 2021 and his conduct "was at best, reckless, and at worst, contemptuous". The Applicant referred to scientific report, introduced by the Respondent as evidence, which established that:

• "Performance impairment after THC was usually highest during the first hour after smoking and declined to baseline of 3-4 hours after THC use"; and

• "Most behavioural and psychological effects of THC return to baseline levels within 3-6 hours after exposure".

• [127] In light of this, the Applicant argued that he had a reasonable basis for concluding that he would be fit for work on 11 August 2021. Any effects of his cannabis use would have completely worn off, at the latest, some ten hours before he attended work.

• [128] The Applicant submitted that the Respondent was deceptive and misleading in their submissions, which are listed as follows:

• In response to the Applicant's claim of differential treatment that, since Mr Hanley took over as General Manager, no employee has been given a second chance following a positive drug test. The Applicant argued that the Respondent failed to mention when making that representation is that, at the time of the hearing, Mr Hanley had only been in the position for three months.

• The Respondent's take on a Bulletin that concludes "DPWB operates a zero tolerance to any employee being under the influence of Drugs and Alcohol in our facilities". The Applicant submitted, however, that zero tolerance for employees being under the influence of drugs and alcohol morphed into a zero tolerance "for employees attending work with drugs in their system". Once the company's lawyers discovered that a Bulletin existed that used the phrase "zero tolerance", they transformed the company's intolerance for impairment into a zero-tolerance drug policy.

• In response to the Applicant's claim of differential treatment, the Respondent asserted that there is no evidence to suggest that any of the aforementioned employees continued to maintain, throughout the show cause process, that they were not in any way impaired, or that their role was not safety critical. The Applicant submitted that the company did not terminate the Applicant for maintaining through the show cause process that he was not impaired or for maintain his role was not safety critical. They dismissed him because he tested positive for cannabis above the policy's cut off levels.

SUMMARY OF THE RESPONDENT'S SUBMISSIONS AND EVIDENCE

• [129] The Respondent concedes that the Applicant was dismissed at the initiative of the Respondent, that the Small Business Fair Dismissal Code does not apply, and that the Applicant's dismissal was not a case of genuine redundancy. The Respondent rejected the Applicant's assertion that his dismissal was harsh, unjust or unreasonable.

• [130] The Respondent advised that the Applicant was dismissed for breaching the Respondent's DOA policy by attending work with an elevated level of a proscribed drug in his system. It is submitted that it is uncontroversial that a breach of this nature provides a valid reason for dismissal. The Respondent referred to the Full Bench in B, C and D v Australian Postal Corporation T/A Australia Post,[1][12] where it was observed that employers have a legitimate interest in ensuring observance of workplace policies, and a failure by an employee to comply with a lawful and reasonable policy will be a breach of a fundamental term of the contract of employment.[13]

• [131] The Respondent submitted that the DOA policy, which requires employees to not attend for work with proscribed drugs in their system, was plainly a lawful and reasonable one. The observations of the Full Bench in Sharp v BCS Infrastructure Support Pty Limited (Sharp) are apposite, in which the Full Bench, after noting the difficulties of establishing whether an employee is impaired as a result of cannabis use, concluded:

"For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable."[14]

• [132] The Respondent argued that the Applicant's suggestion that the DOA policy was not a reasonable policy is simply untenable in circumstances where the Respondent operates in a safety-critical environment and, moreover, the obligation on the Applicant to not attend for work with the presence of cannabis in his system is manifestly clear. The Respondent submitted that the Applicant had committed a serious breach of a lawful and reasonable policy, any matters raised in mitigation are relevant not to whether there was a valid reason, but only to the subsequent question of whether dismissal was harsh, unjust or unreasonable.[15]

• [133] The Respondent submitted that any suggestion the Applicant was dismissed for "out of hours conduct" is unsustainable. The Applicant was dismissed not for what he did in his personal time, but because of his breach of the DOA policy whilst attending the workplace. The submission that a dismissal in such circumstances is for "out of hours" conduct was forcefully rejected in Sharp.[16]

• [134] According to the Respondent, the severity of the Applicant's breach is relevant in that the Respondent's operation at the Port is a high turnover container terminal. It is a safety-critical operating environment, with up to 4 quay crane teams, 16 automatic stacking cranes, 2 reach stackers, and 14 shuttle carriers moving around the Port at any one time, in addition to up to 120 workers. The Respondent advised that the Applicant's responsibilities generally (and including on 11 August 2021) included, inter alia, operating and manoeuvring automated stacking cranes, as well as directing and coordinating the movement of heavy equipment around the Port in his capacity as a Controller. Moreover, the Applicant could have been assigned to undertake any of the other stevedoring tasks for which he was qualified to person, such as operating a reach stacker.

• [135] The Respondent noted that the terms of the DOA policy had put the Applicant on notice that termination of employment was a potential outcome if the Applicant attended for work with a proscribed substance in his system. The Respondent further submitted that confirmatory testing founding the level of THC in the Applicant's system to be 562ug/L is another relevant factor in assessing the severity of the breach. For context, the Respondent advised that the Australian Standards prescribe the testing cut-off for laboratory tested urine to be 15ug/L, and the DOA policy defines any reading of more than 60ug/L as "high range".

• [136] The Respondent refuted the Applicant's submission that he was not supposedly "impaired" with the elevated levels of THC in his system. The Respondent submitted that this is plainly untenable and of only tangential relevance, in circumstances where the Applicant was dismissed not for being impaired, but for significantly breaching the DOA policy by attending for work with drugs in his system.[17]

• [137] The Respondent dismissed arguments of different treatment of employees against the Applicant's obligations under the policy and that he knowingly he could have sought assistance as other employees did, however he did not. Further, the integrity of the sample as dealt with in evidence was not affected.

• [138] The Respondent submitted that although it accepts these decisions are not dispositive, it is relevant that in a number of other decisions of this Commission, presentation at work with cannabinoids in one's system, in breach of an employer's drug and alcohol policy, has been held to be "serious misconduct".[18]

• [139] It was further submitted on behalf of the Respondent that, as it relates to the meaning of "serious misconduct" for the purposes of section 123( 1 )(b) of the Act, the Respondent notes that Reg 1.07 of the Fair Work Regulations 2009 (Cth) provides an instructive (although non-exhaustive) list of conduct that will be "serious misconduct", and submitted that the Applicant's conduct was plainly captured by the examples set out in Reg 1. 07.

• [140] The Respondent argued that having regard to the above matters, the Applicant's misconduct amounted to serious misconduct, both for the purposes of Reg 1.07 of the Regulations, and for the purposes of the assessment pursuant to s.387, as to whether the dismissal was "harsh, unjust, or unreasonable".[19]

• [141] The Respondent noted that different employers may approach misconduct differently,[20] and reasonable minds may differ as to whether or not dismissal was the most appropriate outcome in a particular case.[21] However, it is not the Commission's function to stand in the shoes of the employer and substitute its own views for the discretion reasonably exercised by an employer.[22] In many cases, there will be a band of reasonable responses, and the Commission's function is to determine whether the decision to dismiss fell within that band.[23] The Respondent further noted that the onus of establishing that the dismissal was "harsh, unjust or unreasonable" rests on the Applicant.[24]

• [142] In light of the considerations set out above, the Respondent submitted that the Applicant failed to discharge that onus, and that the Applicant's dismissal should stand.

• [143] It is necessary in considering whether the dismissal is harsh, unjust or unreasonable, to have regard to the matters in s.387 of the Act:

s.387(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)

• [144] The Applicant was forthright in conceding that he had smoked a quantity of cannabis the night prior to him presenting for work and subsequently being selected to conduct a DA test. The Applicant gave the following evidence in relation to him preparing for and smoking the joint prior to his return to work:

"MR McLEAN: Mr Hancock, my name is James McLean, and I'm the barrister for DP World in this matter. Mr Hancock, you say you had a joint on the evening of 10 August this year; is that correct?‑‑‑Yes, around about 6-ish, I think, yes.

And then you attended for work at 6 am the next day?‑‑‑I didn't start until 7.

Did you enter the employer's premises at 6 am?‑‑‑About 6.30.

And you worked around seven hours before you were tested?‑‑‑Yes, that's correct.

So, you were tested around 1 pm?‑‑‑It was 2 o'clock.

2 pm in the afternoon. And you returned a non-negative oral swab test result for cannabis?‑‑‑Yes, that's correct.

And you then provided a urine test that also confirmed positive for THC; correct?‑‑‑That's correct, yes.

And after your non-negative test result you were sent home from the workplace?‑‑‑Yes.

And you were offered a taxi by your employer?‑‑‑Yes, they asked if I wanted to, yes.

You said you didn't want to take a taxi?‑‑‑No, I didn't feel I needed to.

Now, your joint on 10 August of this year, you said you had that around 6 pm?‑‑‑I can't 100 per cent confirm 6 pm. Six to 7, it was after dinner.

And how long did it take to finish that joint, Mr Hancock?‑‑‑A couple of minutes.

A couple of minutes. Did you prepare that joint yourself?‑‑‑Yes, I did.

Do you know how potent that cannabis was?‑‑‑Well, no, not in any factual way, no.

You didn't have another joint after you'd finished that first joint?‑‑‑No.

You didn't consume cannabis on the morning of 11 August?‑‑‑No.

So, you finished your joint by around 7 pm?‑‑‑Almost certainly, yes.

And it's then some 15 or 16 hours later that you returned your non-negative oral swab test for THC?‑‑‑Yes, it was. Yes."[25]

• [145] The Applicant's evidence was that he had purchased the Marijuana and consumed it over the two week period prior to him recommencing work at the terminal:

"How far in advance of 11 August, Mr Hancock, did you purchase that marijuana?‑‑‑Two weeks. Two weeks and two days, actually.

And did you consume that marijuana every evening between when you purchased it and 10 August?‑‑‑Yes, I did.

And did you ration out that marijuana over the course of that two and a bit-week period?‑‑‑I would - I just consumed - I don't know about rationed. I don't know.

Did you save - - -?‑‑‑I didn't put it into, what, 16 different boxes or anything or - - -

Did you consume the same amount of marijuana every night between when you purchased it and 10 August?‑‑‑Probably not. I think when I - maybe on a Saturday night or whatever, I might have had a little bit more.

Was the joint that you consumed on 11 August - sorry, the joint that you consumed on 10 August the smallest of the joints that you consumed during that period?‑‑‑I don't know. It could have been. Yes, I don't know.

And what date did you return to work, Mr Hancock?‑‑‑I returned on the 9th, which was the - the 10th. Monday. The Monday prior.

Did you also attend work on the 9th?‑‑‑Is that the Sunday? (indistinct) the dates, I'm not great with dates.

We can check the date for you, Mr Hancock?‑‑‑No. I think I only worked the Monday and Tuesday.

And the Tuesday was the 11th, to your recollection?‑‑‑Yes.

And as you've just told us, you also smoked marijuana on the Sunday evening?‑‑‑That's correct.

And you smoked marijuana on the Sunday evening and then again you attended for work on the Monday in similar conditions that led you to test positive on the Tuesday?‑‑‑That's correct.

And so you returned to work on the Monday at 10 o'clock?‑‑‑Yes.

So if the 9 August is a Monday, do you accept that you also worked on the 9th and the 10th?‑‑‑Only on the Monday and Tuesday, sorry. The dates escape me, but it was the Monday and Tuesday, I believe that I worked. I believe I was on a week off prior to that.

And then, again, 11 August is the Wednesday, Mr Hancock?‑‑‑It was the Tuesday, I believe.

In actual fact, there were two additional shifts to 11 August on which you attended for work after smoking marijuana the night before, weren't there?‑‑‑Only the Monday and Tuesday, I believe."[26]

• [146] The Applicant's evidence was unambiguous in relation to his consumption of the cannabis in the period leading up to his return to work and his random testing at the workplace.

• [147] Further, Dr Williams gave evidence regarding the degree of impairment that the Applicant was likely under, given the high level of his test result:

"Now, yesterday Dr Williams, Mr Hancock gave evidence that he was certain he was not impaired when he was attending DP World's terminal on 11 August. Having regard to the test results that are annexed to your report, do you have anything that you can say in response to that claim from Mr Hancock?‑‑‑The value returned by Mr Hancock is very high, so in the thousands of test results that I've seen over my course of work with Brassets and other companies, this would be in the top quartile of those results. Now, typically when samples are collected the morning after we see very - values that are close to the cut off, so the cut off being 15 micrograms per litre or nanograms per mil, depending on how you sort of shape the units, right. The other thing of concern is that this value or the sample was collected at 2 pm, so this is - it's implausible that it is as a result of terminal elimination, so smoking the preceding evening. It's more indicative of somebody consuming either a significant amount the evening before or potentially that morning. And if we put this in context of the cut off level, so the value returned is in the order of 37 times the cut off level as dictated by the Australian Standard."[27]

• [148] In accordance with the terms of his contract, the Applicant was employed as a stevedore at the Respondent's Brisbane container terminal. Despite predominantly working as a "controller" and/or "toggle operator", the Applicant acknowledged that from time to time he had been assigned to general stevedoring duties,[28] and further that the Respondent could have assigned him to perform such duties on the 11 August 2021 - either at the outset of, or even during the course of his rostered shift.[29] Whilst there is a debate over the issue, the specific nature of the Applicant's duties, on the evidence, were safety critical.

• [149] Mr Ben Hanley's evidence also confirmed his view, that the Applicant's role was safety critical in nature:

"And again, Mr Hancock gave evidence yesterday that his role was not a safety‑critical role. Sorry, to be more specific, his role as a toggle or controller operator is not a safety‑critical role. As general manager of the terminal, what's your response to that, and how does that sort of comment from Mr Hancock make you feel?‑‑‑Yes, I think it is a safety‑critical role. I think anybody on site has a responsibility when it comes to safety. Anybody who's operating any machinery who's in a decision‑making capacity has a safety‑critical role. So I would have to disagree with that comment."[30]

• [150] It was evident that, even on the Applicant's own evidence, he could have been assigned to perform other work and what he himself acknowledged would have been "safety critical tasks"[31] during the course of his shift on 11 August 2021.

"So, as you've just acknowledged, it might be DP World's entitlement to re-assign you, they could have re-assigned you to operate a reach stacker during the middle of your shift, couldn't they?‑‑‑Yes, I guess possibly they could have, but ‑ ‑ ‑

And possibly they could have re-assigned you on 11 August to operate a reach stacker, couldn't they?‑‑‑They could have, yes.

Could have. And driving ‑ ‑ ‑?‑‑‑But I knew ahead of time that it wasn't going to happen due to the labour pick up and the 25 years' of experience of that labour pick up, and what happens when certain (indistinct) vessels are applied and whatnot, but, yes.

Do you accept that if you were driving or if you were assigned to drive a reach stacker for example that would be a safety critical task?‑‑‑Yes, it would be.

THE COMMISSIONER: What does that involve, for someone who's not expert in stevedoring, just indicate to me?‑‑‑Well, there's a chance of - a very mild chance, but a chance that I could damage equipment. I couldn't hurt anyone because there's no one allowed inside safety zones, and whatnot, but I could have damaged something.

Dropping a container from the ‑ ‑ ‑?‑‑‑Well, yes, or if I didn't pay attention and I picked up a truck or something and he's forgotten to undo his twist locks before he'd stepped into the safe zone. That's a possibility, I've never done anything like that, but it's a possibility."[32]

• [151] The duties of a stevedore include, variously, operating machinery, moving containers around the yard, serving as a foreman on a vessel, or working underneath a crane.[33] In his evidence, the Respondent's General Manager, Mr Hanley, explained there was a "strong possibility" that those duties, if not performed correctly, could cause injury to another employee.

"MR McLEAN: Mr Hanley, if Mr Hancock was performing those general stevedoring duties that you've described, what's your view on the prospect of he could theoretically cause injury to another employee?‑‑‑It would be same possibility as anybody on the terminal who was operating machinery or assigned to the task.

What's that level of possibility?‑‑‑Well, there's a strong possibility.

Mr Hancock gave evidence yesterday that when he was operating as a controller, there was no possibility that he could cause injury to anyone else at the terminal. Do you have a response to that?‑‑‑The controller is I guess a very centralised role, which in the name itself controls machinery around the terminal, which includes the reach stackers and the shuttle fleet. So, you know, if you're giving direction to somebody who's operating a piece of machinery or our contractors on the ground, we have areas of exclusion if those people are directed into that area. There's a high potential that somebody could be injured."[34]

• [152] Regardless of the tasks that the Applicant could have been required to perform during his shift on 11 August 2021, the tasks that he was performing during that shift were "safety critical" in nature. In his evidence, the Applicant stated that he typically worked in the role of "controller" and "toggle operator",[35] and that he performed these roles in a "high traffic" environment. Mr Hanley, in his evidence, described the environment as being characterised by the hoisting of containers 19 meters in the air, and the stacking of those containers in stacks of up to four containers high. It is an environment Mr Hanley, clearly describes as "safety critical".[36]

• [153] The Applicant has conceded in his evidence that in his clerical role as a toggle operator, he was responsible for operating cranes, and he was using those cranes to hoist containers weighing up to 32 tonnes.[37] The Applicant further conceded that although the crane system was partially automated, it does and did require manual override when there were "anomalies" with the crane,[38] at which time the Applicant would manually operate the crane using a joystick.[39]

• [154] The Applicant set out that when in manual control of the crane, the Applicant could cause a container to "long travel" and thereby collide with another container.[40] The Applicant could also cause a crane to lift a container to which a truck is still attached;[41] this would cause the crane to lift a "caught" four tonne truck and/or thirty tonne container above a worker in a "safety zone" that is potentially only 10 feet away from the overhead load.[42] It was further established that the Applicant was required to hold what WorkSafe Queensland refers to as a "CB High Risk License" to perform his role.[43]

• [155] In relation to the Applicant's role as a 'controller', the Applicant described this role as 'manipulating the computer system to direct [the shuttles] around the port'.[44] He conceded that when serving as a 'controller', he was responsible for making shuttle operators aware of areas where there are persons working on the ground.[45] Mr Hanley, in his evidence, stated that there was a "high potential" that somebody could be injured if the controller was to not perform his duties correctly by, for example, directing persons into what should be an exclusion area.[46]

• [156] On the basis of the evidence provided in relation to the Applicant's role and the associated duties, the Applicant's role was considered to be safety critical in nature. The evidence has demonstrated a range of risks associated with the discharge of the Applicant's duties, both in terms of the duties that he was engaged to perform, and the duties that he did in fact perform on a regular basis, all of which support a finding that the Applicant's role was serious, and safety critical in nature. As set out, the conduct by the Applicant has to be taken into account, when as an employee, he knowingly and willingly consumed illicit drugs for a series of days and importantly, including the night before he was due to resume his duties.

• [157] This decision is analogous to the recent decision of Rodney Roach v Pacific National Services Pty Ltd decision, [47] where Saunders DP set out the approach taking into account the views of the Full Bench in Sydney Trains:

[55] Mr Roach's decision to attend work and perform a safety critical role on 19 and 20 July 2021 so soon after he knowingly consumed cannabis was reckless behaviour and potentially placed him and his team members at serious risk of harm. Mr Roach's conduct was serious, notwithstanding that this was the first occasion on which he had tested positive for drugs or alcohol at work.

[56] PN accepts that the proportionality of an employer's response to conduct in question is a matter that might be relevant under s 387(h) of the Act. However, PN submits that it is relevant only where the employer fails to take into account mitigating circumstances in its decision. I reject that submission. PN relies on a decision of the Full Bench of the Commission in _Sydney Trains v Hilder_17 (Hilder) in support of its contention. In Hilder, the Full Bench did not state that the proportionality of an employer's response to conduct in question is a matter that is relevant only where the employer fails to take into account mitigating circumstances in its decision. The Full Bench in Hilder observed (at [30]) that:

"If the consequence of Sydney Trains' "zero tolerance" was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions."

[57] The Commission is required to determine an application for unfair dismissal on the basis of the material before the Commission, regardless of whether the employer took into account any of that material in making its decision to dismiss the employee. Consider, for example, an employer that takes into account all mitigating circumstances but decides to dismiss a long serving employee with an exemplary record for a trivial breach of policy, such as attending work on one occasion 30 seconds late. The Commission would have little hesitation in concluding that the dismissal was harsh because it was disproportionate to the gravity of the conduct, regardless of whatever the employer did or did not take into account."[48]

• [158] The employer's approach in this matter is compatible with the decision in these circumstances.

• [159] There was no contention between the parties in relation to the Applicant's awareness of the relevant policies that required him to be drug and alcohol free at the workplace. This was confirmed by the Applicant during his evidence at the hearing:

"In the employee handbook DP World made it very clear to you that termination of employment is a potential consequence of attending for work with a drug in your system, haven't they? --- Yes, particularly if you're intoxicated or - yes."[49]

• [160] The Applicant acknowledged that he had previously seen the Employee Handbook, and that he knew where to obtain a copy.[50] In addition, he had received the bulletins on the Policy.

• [161] As it relates to the policy, the Employee Handbook sets out:

"An Employee who disregards the Alcohol and Other Drugs Policy and who attends work with a level of alcohol in their blood or a drug in their system that produces a positive test result will be subject to disciplinary action and may have their employment terminated."[51]

• [162] Further, the Applicant acknowledged that he was aware of the Respondent's Drug and Alcohol policy:

"Can I ask you to turn to page 155, please, Mr Hancock? Do you recognise this document?---Yes. Yes, I do, and in the blue font.

This is a drug and alcohol policy of DP World, isn't it?---Yes, cardinal commitment. This is the one I've seen."[52]

• [163] The policy relevantly sets out that:

1. Employees must not attend for work with an alcohol or other drug level that exceeds the limits contained in Appendix B of this Policy;
2. Breaches of this policy are serious and have the ability to put the health and safety of employees and others at significant risk.

1. Disciplinary action will be taken where an employee records a confirmed positive alcohol or other drugs screening test;

1. DP World has discretion to take the appropriate disciplinary action for breaches of this Policy which may include termination of employment.

• [164] The Applicant recorded a high drug level in his system, during the shift. The level exceeded the recorded limits.

• [165] The Applicant also acknowledged that the policy had been brought to his attention in his capacity as an Employee Representative Committee member when the policy was first introduced in 2017.[53]

• [166] The Applicant had been a long term member of the Health and Safety Committee for the Respondent, and therefore had a heightened understanding of the importance of it and the health and safety policies to be applied at the workplace:

"You served on the safety committee, did you not?‑‑‑Yes.

How many years did you serve on the safety committee?‑‑‑A long time. 12, 15 years.

How do you feel about your responsibility as an employee in relation to workplace health and safety?‑‑‑Just you can't be off your head driving around big machinery and stuff. That's just not on. You can never be - you've got to be very mindful.

So not just speaking about potential impairment, do you take seriously health and safety commitments in other areas of the job?‑‑‑Yes. I do. I was on the guidelines committee and wrote a lot of the procedures in the joint around lifting and dropping of things, and all that sort of stuff - areas.

So why was it important for you to serve on the health and safety committee?‑‑‑Just to - just to ensure that all the boxes were being ticked, I guess, for my own peace of mind. Yeah. Making sure people were - I didn't trust other people to do it, basically, if that's a reasonable answer."[54]

• [167] The Applicant conceded that he was aware that a breach of the policy may have resulted in the termination of his employment:

"So this policy put you on square notice that positive drug result may result in termination of your employment, didn't it? --- Yes. And those paragraphs of it certainly do. There's others that lead me in a different direction, but yes."[55]

• [168] The Applicant's evidence in endeavouring to diminish the clarity of the policy is not compelling. The Applicant was aware of the Respondent's policy, and aware that breach of the policy could have resulted in the termination of his employment. Differential treatment of the Applicant has not been made out.

• [169] The Applicant had submitted that there could not have been a valid reason for the dismissal, on the basis that the policy was not "reasonable".

• [170] However, the Full Bench decision of Sharp v BCS Infrastructure Support Pty Limited (Sharp)[56] recognised that an analogous policy that provided for disciplinary action in the event of a positive drug test was lawful and reasonable. In Sharp the Full Bench was considering whether a policy that provided that termination may result from a positive drug test,[57] and defined a positive drug test as one that returned, in the case of cannabis, a reading above 15 ug/L.[58] The Full Bench in Sharp observed:

"[24] ... However, a critical consideration in assessing whether a dismissal in these types of circumstances was unfair is the fact that there is currently no direct scientific test for impairment arising from the use of cannabis...

Therefore, where an employee who shows no obvious signs of impairment undergoes a drug test at work and tests positive for cannabis use, the employer is placed in a difficult position. In practical terms, it will be unlikely that the employer will be in a position to independently ascertain when the relevant employee consumed cannabis and the quantity that was consumed. Apart from reliance upon the employee's own explanation about the matter, which will probably not be verifiable, the employer will therefore not be in a position properly to assess whether the employee is impaired as a result of cannabis use and therefore represents a threat to safety.

For that reason, employer policies which provide for disciplinary action including dismissal where an employee tests positive for cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to be lawful and reasonable."[59]

• [171] In the current matter, the employee had worked some time into the shift and yet still tested at a high range for THC. Consistent with the above comments from the Full Bench in Sharp, and in consideration of the safety critical context of the Applicant's work and that termination as an outcome in the Respondent's policy was known to the Applicant, it is considered to present a valid reason for dismissal and to be a lawful and reasonable in the circumstances.

• [172] The Applicant sought to challenge the integrity of the urine test analysis relied upon by the Respondent. However, the Applicant had openly admitted to consuming the cannabis prior to attending work and further, the Applicant failed an oral swab test for cannabis, the results of which have never been impugned.

• [173] The laboratory results noted that the specimen was "analysed and reported in accordance to [Australian Standards]."[60] Further, Dr Robertson conceded in his evidence, that based on the laboratory reports, it was clear that the laboratory had conducted the analysis correctly:[61]

"The sample for donor Craig Hancock was collected in accordance with the Australian Standards -

The chain of custody and tamper‑evident seals were intact, ensuring the validity of the sample.

And you mentioned that you were familiar with Ms Deborah Brass?‑‑‑Yes, I know Deborah Brass.

And what's Deborah's - Ms Brass' capacity?‑‑‑I think it's the operations - I'm not too clear on her actual title, I think she might be operations or something like that, within the group.

All right. And then there's the last paragraph of that document, Dr Robertson:

The interpretation of the handwritten date of birth on the vacutainers does not impact the validity of the sample. The sample was compliant to the Australian Standards.

All right. No further questions of the witness."[62]

• [174] The Applicant's submission in relation to the integrity of the test result focused on the collection process and chain of custody. However, during the hearing, Dr Williams explained, there was a discrepancy in the date of birth recorded on the specimen tubes (where the recording of a digit was smudged) that necessitated the binary COC field being marked "no".[63] Dr Williams went on to confirm that she herself had seen photos of the tubes with the seals intact, with the photos that clearly illustrate the year of birth recorded on those tubes was poorly recorded.[64]

• [175] Dr Williams went on to clarify her position in relation to the validity of the test results:

"So, in light of what you've just told us, do you have any concerns about the integrity of the sample that is the basis of the test results annexed to your witness statement? --- No."[65]

• [176] During cross-examination Dr Williams made it clear that the only reason for the procedural annotations on the laboratory analysis was that the test tubes (which the Applicant himself had signed) had been marked with an incorrect date of birth:

"It also says on a different line - bear with me: "Please note, sample tubes have the date of birth as 20/12/1979

So are you saying that that line is the reason that it wasn't - that the sample wasn't tested in accordance with Australian New Zealand Standards? --- Yes.

But that's not what it says does it? --- But that's what happens.

So, if you know that there is a - that the date of birth is one way that it didn't comply, that doesn't exclude any other way that it didn't comply with the Australian Standards does it? --- Then it would be written on the report. If there was multiple ways that it wouldn't comply, that would be documented on the report the same as it says, sample tubes have the date."[66]

• [177] During cross examination, Dr Williams gave direct evidence that she had established, from her own enquiries, that despite the annotation on the report, the chain of custody and integrity of the sample had in fact been maintained.[67] Little weight can be attributed to the Applicant's submission to diminish the integrity of the sample, having regard to the evidence of Dr Williams. On the evidence, the integrity of the actual sample was clearly not threatened.

• [178] The evidence in relation to the sample did not demonstrate a breach of the standards that affected the sample, in that it could not be relied on. The Applicant's date of birth on the sample did not render the sample unusable. The evidence was steadfast as to the explanation of the notation on the sample and it did not disturb the reliability of the sample, with a cannabis reading in his system.

• [179] The Applicant has maintained an argument that he was disciplined because of his "out of hours conduct". The Respondent maintained that the Applicant was dismissed not for what he did in his personal time, but because of his breach of the DOA policy, in his presenting to the Respondent's terminal to work and tested positive at a high range.

• [180] The Applicant's submission that the dismissal in such circumstances for "out of hours" conduct, in some way being exempt is not compelling in the present matter, given the proximity of the consumption of the drugs in relationship to the Applicant's presenting for work, and the resultant test result. The Applicant had used the substance daily over the course of his break, in the knowledge that he could have sought assistance from the company for the drug use, which he did not. He was aware of the Policy and the bulletin emphasising a zero tolerance position.

• [181] The breach of the Policy, in the context of all of the circumstances, provided a valid reason for the dismissal.

(b) whether the person was notified of that reason

• [182] The Applicant was notified of the reasons under consideration in the show cause and for the dismissal in in the termination letter issued on 24 August 2021. The termination letter is set out in full at the beginning of this decision. The Applicant conceded that he was fully notified of the reasons for his dismissal, both during the in person meeting on 24 August, and through the termination letter This factor is therefore considered neutral.

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

• [183] The Applicant was provided with a show cause letter on 17 August 2021. This correspondence invited the Applicant to a show cause meeting on 20 August 2021. At the Show Cause Meeting, the Applicant was advised that the Respondent considered him to have engaged in serious misconduct and was considering terminating his employment. The Applicant was provided an opportunity to address the allegations at this meeting, and provided a response.

• [184] The Respondent noted that the Applicant properly conceded that he was notified of the reasons for his dismissal. That concession is an appropriate one in light of the following:

1. the Invitation to the Show Cause Meeting put the Applicant on notice that the Respondent was considering terminating his employment because of his non-negative test result; and

1. at the Show Cause Meeting, the Respondent again advised the Applicant that it was considering terminating his employment because of his non­negative test result.

• [185] The Applicant had argued that he was not afforded an opportunity to respond, alleging that the outcome of the process was "pre-determined", and that the Show Cause Meeting was a "sham process". The Respondent argued that the Applicant's submission was, at best, inferential. The mere fact the Applicant's response to the Show Cause Letter did not result in an outcome other than dismissal does not mean the Applicant was deprived of an opportunity to respond. The insinuation that the process was a "sham" is a serious one, and in that regard the observations of the High Court in Briginshaw are relevant.[68] The Applicant was given a clear opportunity to respond, contrary to the circumstances in Chioma Okoye v SACARE Supported Accommodation and Care Services T/A SA CARE.[69] The Respondent submitted that the direct evidence from the decision maker demonstrated that the Respondent gave genuine consideration to the matters raised in mitigation by the Applicant.

• [186] In terms of the existence of a valid reason for dismissal in the present matter, the Applicant's responses were taken into account, he admitted that he was aware of the Respondent's Drug and Alcohol policy, and the requirements of the policy. Further, the Applicant admitted that he was familiar with the various additional materials reminding him of the Respondent's requirement that he not attend for work with illicit drugs in his system. Despite this awareness of the policy, the Applicant conceded that he consumed an unknown quantity of cannabis the night before his shift, and proceeded to present for work the following day. The Applicant confirmed that he was aware that the conduct could result in termination. The circumstances as set out support a finding of a procedurally fair process, and does not support a finding that the termination was harsh, unjust or unreasonable.

• [187] In the current matter the Applicant was provided with an opportunity to respond with the Unions support and representation and the case presented in hearing is similar to the matters raised for consideration in the show cause process. This matter does not weigh in favour of a finding that the dismissal was harsh, unjust or unreasonable.

(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

• [188] The Applicant was represented by the MUA throughout the process and conceded that he was allowed a support person from the MUA at all times. The Applicant conceded that there was no unreasonable refusal to allow him a support person in any meeting relating to his dismissal. This element in considering whether the dismissal was harsh, unjust and unreasonable is considered neutral.

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

• [189] The Applicant was not dismissed for reasons pertaining to unsatisfactory performance. His length of service and record of performance as well as his service on the Health and Safety Committee have been taken into account. This factor is considered to be neutral in assessing whether the dismissal was harsh, unjust and unreasonable.

(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

• [190] The Respondent is a large employer, with over 3700 staff, including a dedicated human resources and access to legal advice.

• [191] The Respondent provided a procedurally fair process, commensurate with its size and resources. This matter is considered to be neutral in assessing the fairness of the termination.

(h) any other matters that the FWC considers relevant

• [192] The Respondent submitted that for the reasons explained above, the Applicant's decision to attend for work with cannabis in his system was plainly serious misconduct. The observations of the Full Bench in Parmalat are then relevant:

"... [h]aving found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open."

• [193] The Respondent, having complied with the statutory requirements for procedural fairness, it is then, consistent with Full Bench authority, only if significant mitigating factors are present, that a conclusion of harshness is reasonably open.

Applicant's length of service; remorse and apology

• [194] The Applicant emphasised that he was a dedicated employee with 25 years of service with the Respondent. The Applicant submitted that he was respected by his colleagues, elected to the HSC and ERC. The Applicant apologised for his conduct and accepted responsibility for it. The Applicant submitted that given the context in which it occurred and his insight into it, it is conduct that he submitted will not re-occur.

• [195] In relation to the Applicant's length of service, the Respondent acknowledged the Applicant was a long standing employee; however, they as the Full Bench observed in Harbour City Ferries, whilst an employee's length of service may be a factor attracting a degree of sympathy, it is also a factor that demands a high level of compliance with policy;[70] and ultimately, a significant period of service cannot be a "licence" for significant breaches of policy that amount to serious misconduct, and particularly when that indiscretion has potential consequences for the safety of others. The Commission has recognised that an employee's length of service is not determinative in overturning dismissal matters.

Comparative differentiation and the Applicant's personal circumstances

• [196] The Union argued comparative differentiation of treatment of the Applicant against other employees. This was not made out. The circumstances of each of the other employees referred to were markedly different to those of the Applicant, such that a like for like comparison could not be made out. Further, the evidence of Mr Hanley plainly set out, that since he took over as General Manager and since the Respondent issued the May 2021 bulletin referring to the Respondent's 'zero tolerance' for employee's attending work with drugs in their system, no employee had been given a 'second chance' following a positive drug test. The following exchange from the hearing deals with this matter:

"Now, the company also issued bulletins about the drug and alcohol policy from time to time, didn't they?‑‑‑Yes, this appendix C was found everywhere. The flow chart was behind on the safety - behind the glass petition there was - so it was there, like, all the time.

So, bulletins were posted on a notice board?‑‑‑Possibly. Probably, but I didn't - but, I certainly recall seeing appendix C regularly.

In the break room?‑‑‑In the break room, in the office. It was in the office from time to time, yes, appendix C for sure.

If I can ask you to turn to page 171 of the court book, Mr Hancock?‑‑‑Yes.

This is one of the bulletins that was put up, the bulletin about peppermint flavouring in oral swab tests?‑‑‑Yes.

Yes, okay. And, you see where it says 'zero tolerance' n the very bottom paragraph, Mr Hancock?‑‑‑Yes.

'As a reminder to all employees DPWB', being DP World Brisbane, operates a zero tolerance to any employee being under the influence of drug and alcohol in our facilities'. Do you see where it says that?‑‑‑I do. I don't recall reading it, but, yes.

‑ ‑ ‑when you say DP World has never used the term 'zero tolerance', that's not correct, is it?‑‑‑Obviously if this ‑ ‑ ‑

I've just taken you to where they use it?‑‑‑ ‑ ‑ ‑bulletin was put out, for sure. That seems to be there on that one, but ‑ ‑ ‑"[71]

• [197] I am satisfied that the Applicant was not subject to any 'differential treatment' that rendered his dismissal harsh, unjust or unreasonable.

• [198] In relation to the Applicant's personal circumstances, the Applicant referred to mental health issues that led him to self-medicate with an illicit substance, in a manner which caused him to attend the Respondent's Terminal in a state that was in breach of the Respondent's AOD policy and potentially put the safety of himself and others at risk. The Applicant gave evidence that he had purchased a quantity of cannabis over two weeks prior to his attending work on 11 August. His evidence was that he had smoked a quantity of cannabis each night during that period prior to presenting for work on the 11th.[72]

• [199] It is not for the employer or colleagues to randomly check whether an employee is showing signs of impairment. No reliable evidence of the Applicant's concerns or reporting to the employer about his mental health was provided. He, unlike other employees (in accordance with the employer's drug and alcohol policy) did not volunteer that he was experiencing personal difficulties or initiate rehabilitation assistance under the policy, as other employees had. The misconduct and resultant hardship of the dismissal has been given due consideration.

Proportionality of the Employer's response to dismiss the Applicant

• [200] The Respondent had argued that the current matter was distinguishable from Sydney Trains on the basis that the Applicant's breach of the AOD policy in the current matter was trivial in nature, and unessential to the fundamental requirements of his employment. I do not accept this argument. The Applicant in the current matter had conceded that he was aware of the 5 May 2021 bulletin that set out the Respondent's 'zero tolerance' approach to employee's presenting for work under the influence of drugs or alcohol. Further, as set out earlier, the Applicant's role was found to be safety critical in nature, and his attending to work with drugs in his system, having recorded a high range reading, was a significant breach of the policy. I am satisfied in the current matter that the Applicant's compliance with the AOD policy was essential to the fundamental requirements of his employment. The Employer's decision to terminate the Applicant's employment in response to this breach is not considered harsh for the purposes of s.387(h).

• [201] The Respondent submitted that there was a valid reason for dismissal and that reinstatement was inappropriate. The Respondent argued that neither of the decisions of Metcash nor Sydney Trains provided any support for a conclusion that reinstatement is the appropriate remedy. In this regard, the Full Bench in Sydney Trains pointed out the Full Bench did not need to consider remedy in circumstances where none of the grounds of appeal related to the orders for reinstatement.[73] Having regard to the decision, it cannot be said that the Full Bench endorsed reinstatement as the appropriate remedy; and further, in Metcash (separate to the current situation) a supervisor at the employee's former site gave evidence that he was comfortable having the employee return.[74] More importantly, there is no suggestion the employee the beneficiary of the reinstatement order had continued to deny the safety critical nature of his role or the potential consequences that at least could have resulted from the conduct that he engaged in. This is a stark contrast with the repeatedly stated position of the Applicant in the present proceeding.

• [202] The Applicant in this matter was aware of the Respondent's drug and alcohol policy, and the requirements of the policy, namely, the Respondent's clear requirement that he not attend for work with illicit drugs in his system. The Applicant was aware that a breach of this policy could result in the termination of his employment.

• [203] Whilst disputed between the parties, the evidence has demonstrated that the Applicant's role was inherently safety critical in nature. The requisite trust and confidence cannot be restored in the employment relationship.

• [204] Despite his awareness of the drug and alcohol policy, after consuming an unknown quantity of cannabis the night before his shift, the Applicant proceeded to present for work the following day and tested positive at a high level. The Applicant's actions in this regard have been weighed with all of the other relevant factors and do not support a finding that the dismissal was harsh, unjust and unreasonable. On that basis the application pursuant to s.394 is dismissed.

[1] Sharma, P., Murthy, P., & Bharath, M. M. (2012). Chemistry, metabolism, and toxicology of cannabis: clinical

implications. Iranian journal of psychiatry, 7(4), 149-156 (citations omitted).

[3] [2020] FWCFB 1373 (Sydney Trains)

[6] Jurisic v ABB Australia Pty Ltd [2014] FWCFB 5835 at [73].

[7] [2015] FWCFB 1033.

[9] Sharp v BCS Infrastructure Support Pty Limited [2014] FWC 7310 at [26].

[11] Roger Iannella v Engie Fire Services Australia Pty Ltd T/A Engie Services [2016] FWC 8389 at [42]; citing Kolodiashnii v Lion Nathan T/A J Boag and Son Brewing Pty Ltd [2009] AIRC 893.

[12] [2013] FWCFB 6191; (2013) 238 IR 1.

[14] Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033, [24].

[17] See Harbour City Ferries Pty Ltd v Toms [2014] FWCFB 6249, [27].

[19] Sharp at [2015] FWCFB 1033 at [33]- [34].

[20] OP World Sydney Limited v Lambley [2012] FWAFB 4810; (2012) 222 IR 277 at [26].

[21] Selak v Woolworths Ltd [2008] AIRCFB 81; (2008) 171 IR 267 at [35].

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

[23] Dalton v CBH Limited (PR919761) at [18].

[24] Nicholas Ward v Great Southern Rail Pty Ltd TIA Great Southern Rail [2019] FWC 5064 at [195].

[25] Paragraph [400] to [420] of the transcript.

[26] Paragraph [724] to [740] of the transcript.

[36] Witness statement of Ben Hanley at [8].

[47] Rodney Roach v Pacific National Services Pty Ltd [2022] FWC 103.

[54] Paragraphs [806] to [810] of the transcript.

[56] [2015] FWCFB 1033.

[62] Paragraphs [229] to [248] of the transcript.

[68] Briginshaw v Briginshaw (1938) 60 CLR 336' [1938] HCA 34.

[69] [2020] FWC 704 (Okoye)

[73] Sydney Trains at [12] and [42].

[74] Hudson v Metcash Trading Limited (2021) FWC 2765 at [83].

Printed by authority of the Commonwealth Government Printer