Fair Work Act 2009

s.394 - Application for an unfair dismissal remedy

Application for an unfair dismissal remedy - applicant avoided drug test after final warning for breaching policy - valid reason - dismissal not unfair

• [1] This decision concerns an application made by Jake Candido for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Act). On 14 May 2024 Mr Candido was summarily dismissed from his job as a forklift operator with Scalzo Trading Co Pty Ltd (Scalzo) after the company concluded that on 6 May 2024 he had left work to avoid a drug test. Two months earlier Mr Candido had received a final warning, having tested positive for drugs. He was told that further breaches of the company's drug and alcohol policy would not be tolerated. Mr Candido contended that his dismissal was unfair because he had not sought to avoid the second drug test but had hurried home after defecating in his trousers. Scalzo considered that Mr Candido had deliberately avoided the test and thereby breached its policy. It submitted that this amounted to serious misconduct, and that the dismissal was not unfair.

• [2] On the morning of the proceeding, Mr Candido's lawyer, Anthony Maselli, sent a message to chambers asking for an adjournment because he was unwell. I replied that I did not propose to grant an adjournment because no application had been made under 596 for Mr Candido to be represented by a lawyer or paid agent. Mr Maselli responded, stating that he had intended to make such an application at the proceeding, on the basis of what he said was the complexity of the matter and the efficiency offered by legal representation (s 596(2)(a)). He also said that Mr Candido suffered from anxiety, and that it would be unfair not to allow him to be represented (596(2)(b)), as 'hearings of this nature can trigger his anxiety and thus not allow him to adequately represent himself'. At the proceeding, Mr Candido relied on Mr Maselli's submissions. I concluded that neither s 596(2)(a) nor s 596(2)(b) was engaged. My assessment was that granting permission would not assist me to deal with the matter more efficiently, taking into account the complexity of the matter. This was the case regardless of the fact that Mr Maselli was not available to attend the proceeding that morning. Further, I was not persuaded that it would be unfair to Mr Candido not to grant him permission to be represented. He did not identify any previous 'hearings of this nature' that had triggered his anxiety. There was no medical evidence about his anxiety or its extent. Mr Candido said that he was anxious and that he wanted his lawyer to speak for him. I told Mr Candido that we would proceed informally, by way of determinative conference rather than hearing, that he could have breaks if he needed them (he took one to call his lawyer), and that he should ask me if he had any questions. I was not persuaded that s 596(2)(b) was engaged and the application for permission to be represented was refused. In the circumstances, there was no basis for an adjournment. The matter proceeded.

• [3] Much of the background is uncontested and was described in the parties' written materials. In his 'outline of submission' document, Mr Candido said that on 6 May 2024 he was operating a forklift to load a truck when his supervisor, Chico Akatapuria, told him that he had to undergo a drug test. Mr Candido replied that he had just defecated in his pants and left the site immediately. In his submission, Mr Candido said that he had attended work that morning despite feeling unwell, but had battled through the shift, and had then had his 'accident', which caused him great embarrassment. Mr Candido also said that Mr Akatapuria had told him aggressively that he had to undergo the drug test, but despite this he left the site and went home. He then obtained a medical certificate which stated that he had been found to be 'unfit for work' on 6 and 7 May 2024. In his submission document, Mr Candido stated that the incident had been the 'culmination of a campaign of bullying' against him by his shift manager (Mr Akatapuria), but at the conference he said that this was wrong, and that what he had meant was that human resources had targeted him through the company's drug testing processes, as he had been asked to undergo multiple tests whereas other workers had not.

• [4] Mr Akatapuria's account of the incident on 6 May 2024 is set out in a statement he gave to the company on 9 May 2024. He said that he had approached Mr Candido, who was loading a truck, and yelled out to him. Mr Candido turned around and saw him holding up a piece of paper with a testing list on it. Mr Candido said, 'I've got to go, I just shat myself.' Mr Akatapuria told him that he had been selected for a drug test that day and that it would look bad if he left. Mr Candido replied that he had to go, and that he did not want to do a test in that condition.

• [5] Stephen Heiner, Scalzo's people and safety manager, told the Commission that Mr Candido had returned a positive drug test result on 12 March 2024, and that he had been given a final written warning for breaching the company's drug and alcohol policy. The warning letter stated that further breaches of the policy would not be tolerated. Clause 16 of the policy, which was submitted to the Commission, stated that if an employee attempts to avoid a drug test, this will be treated as a breach of the policy and disciplinary action will follow. Clause 14 of the policy states that for a second offence against the policy an employee may be summarily dismissed. Mr Heiner said that the company tried to contact Mr Candido multiple times after he left the site, both by telephone and by text, but he was unable to reach him. Mr Candido said that there had been a problem with his telephone.

• [6] Rickardo Costa, Scalzo's human resources manager, said that the company believed that Mr Candido had avoided the drug test on 6 May 2024 because he did not have to leave the site on 6 May 2024. There were other options open to him. He could have gone to the bathroom to clean up. But he did not go to the bathroom. After Mr Akatapuria told him about the drug test, Mr Candido had gone straight to his car and driven home. Mr Costa said that the company would have been content for him to go home to clean up first and then return to do the drug test, or for him to do the drug test at the doctor.

• [7] Scalzo submitted that there had been no medical emergency to cause Mr Candido to leave the site. Instead, he had decided to go home to avoid the drug test. The workplace was a high-risk site. Mr Candido's job was to operate a forklift. He had received a final warning and then breached the policy for a second time. The matter was put to him. There was no satisfactory response. Scalzo contended that the dismissal occurred for a legitimate reason and was not unfair.

• [8] I accept, with some hesitation, that Mr Candido had an accident in his trousers on 6 May 2024. But I do not accept that this compelled him to leave work, or that it was the main reason that he left work. He had other reasonable options open to him. He could have gone to the bathroom to clean up. He could have done the drugs test and then gone home. He may not have wanted to do that. But his job was at risk: he was on a final warning for breaching the drug and alcohol policy. Mr Candido needed to take the matter very seriously, but he did not take it seriously at all. Mr Akatapuria told Mr Candido that it would look bad if he left work after being asked to do a drug test. He left anyway. Mr Candido did not offer to do the test at some other time or place. He showed no concern for the company's requirement that he submit to a drug test. As to the medical certificate, it did not record anything in the nature of a medical emergency. And indeed, Mr Candido did not assert that it was a medical emergency. He told Mr Akatapuria that he had had an accident in his trousers and that did not want to undergo a drug test in that condition. He also said that he was embarrassed. But these were not good or convincing reasons not to do the drug test.

• [9] I find that Mr Candido left work to avoid the drug test. This was the clear and intended consequence of his leaving the site. I make this finding on the balance of probabilities with regard to the considerations in Briginshaw v Briginshaw [1938] HCA 34. I further find that Mr Candido's conduct contravened clause 16 of the policy. This states that if an employee refuses to take or attempts to avoid a drug test, this will be treated as a breach of the policy and disciplinary action will follow. The policy was binding on Mr Candido through his contract of employment dated 28 July 2023 (see the top of page 4). But in any event, it was reasonable for the company to require him to comply with it. This was Mr Candido's second offence. He had contravened his final warning. It is clear that Scalzo had a valid reason for dismissing Mr Candido that was related to his conduct (s 387(a)). Mr Candido was notified of this reason and given an opportunity to respond to it (ss 387(b) and (c)). There is no suggestion that he was refused a support person (s 387(d)). The dismissal did not relate to performance, therefore s 387(e) is not relevant. Sections 387(f) and (g) are not applicable as the company is not a small enterprise.

• [10] As to other relevant matters (s 387(h)), Scalzo had told Mr Candido very clearly that further breaches of the policy would not be tolerated. The environment in which Mr Candido worked was one of high risk. His job involved driving a forklift. It has not been suggested that the terms of the policy were unreasonable or that they were unreasonably applied in this case, nor do I consider this to have been the case. After Mr Candido's first offence, Scalzo followed its policy and issued him with a final warning. Its policy is lenient. It gives transgressors a second chance. But Mr Candido proceeded to contravene the policy again by avoiding the drug test on 6 May 2024. He showed no concern for the integrity of the drug testing process. In my view, the seriousness of the conduct warranted immediate dismissal. This was not a disproportionate response.

• [11] Nothing can be more important than protecting health and safety in the workplace, and a drug and alcohol policy is one important means of doing so. Failure to comply with a reasonable workplace drug and alcohol policy is unacceptable, first and foremost because it undermines efforts to keep workers safe, and secondly because it exposes the employer to risk. What would have happened if Scalzo had responded tepidly with a second, now hollow, warning, and Mr Candido had later injured a worker while driving his forklift with a positive drug reading? The company could reasonably have been accused of not putting safety first and of not taking all reasonable measures to protect health and safety by enforcing the terms of its drug and alcohol policy.

• [12] Taking into account the matters in s 387, I consider that the dismissal was not harsh, unjust or unreasonable. It was therefore not unfair. The application is dismissed.

R. Costa and S. Heiner for Scalzo Trading Co Pty Ltd

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