Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - dismissed for refusing drug and alcohol breath test - reasons for request for test not clearly stated - direction to undertake a test is not reasonable where reason not made clear - sanction for refusing test not stated in drug and alcohol policy - failure to provide written allegation prior to termination meeting - summary dismissal not justified - dismissal unfair - compensation ordered

• [1] Ms Chantelle Tamati has applied pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Ms Tamati was employed by MQT Pty Ltd (MQT) from 27 September 2021 to 14 April 2025. She worked in MQT's head office in a management role.

• [2] The application was heard on 19 August 2025. Ms Tamati represented herself and MQT was represented by its Human Resources Manager, Mr Golinski.

• [3] Ms Tamati provided a witness statement. MQT provided statements from Mr Joel Robson, Human Resources Manager and Mr David Muir, National Compliance Manager. There was contested evidence and the matter proceeded by way of hearing. Each witness was cross examined. Mr Golinski played an important role in the events that led to the dismissal. He did not provide evidence. He did cross examine Ms Tamati. He put propositions to Mr Tamati in cross examination as to what he did and said during the events that led to the dismissal. Many were denied. I have preferred Ms Tamati's denials, as they were given under oath, to Mr Golinski's propositions as to his conduct and involvement in the events leading to the dismissal.

• [4] Ms Tamati was dismissed summarily by Mr Golinski at a disciplinary meeting on 14 April 2025 after being suspended for refusing to take a drug and alcohol test on 10 April 2025. The events leading to that refusal were described in the witness statements.

• [5] On 10 April 2025 Ms Tamati went to lunch with two colleagues. The lunch was at licensed premises, close to work. It went for around 4 hours. Ms Tamati's evidence is that she had one alcoholic drink at lunch. The three employees returned to work and one of them, Chris Helene, was observed to be disruptive in the office. He also made a phone call to a Director of MQT, Mr Daniel Mikosic. Following the phone call Mr Mikosic directed Mr Muir to undertake an alcohol breath test on Mr Helene. The direction was given by text message at 3.36 pm. Mr Mikosic, based on the phone conversation, suspected that Mr Helene had been drinking at lunch. Mr Helene was asked to go to a meeting room where he was asked to conduct a breath test. Mr Robson and Mr Muir were also in the meeting room. When he was asked to do the test Mr Helene said he had been drinking. He didn't do the test. Instead he left the room announcing that he was resigning.

• [6] Mr Muir said that after Mr Helene left Ms Askin Ahmed, who is a safety manager, entered the meeting room and suggested that the other two managers who had been at lunch, Ms Tamati and Mr King, be drug and alcohol tested too. Mr Muir said he agreed because he believed Ms Tamati had been "acting a bit different" when she returned from lunch. Mr Robson also agreed that the other two should be tested. Mr Robson said that tests should be done "for fairness and our duty of care" as they were all at the same long lunch as Chris Helene.

• [7] Ms Tamati's evidence is that Mr Robson asked her to come into the meeting room for a quick chat. There are different accounts of what was said after she entered the room. Ms Tamati's account is that the meeting began with a discussion about Mr Helene's conduct. Ms Tamati thought that she was there to discuss Mr Helene's wellbeing. The discussion then turned to the lunch and Ms Tamati was asked what she ate and drank at lunchtime. She answered, saying she had garlic pizza, one alcoholic drink and soda water. She was then asked to take a drug and alcohol test. Mr Muir said that Ms Tamati first agreed to do the test and then became defensive. She asked why she was being "dragged into this" and Mr Muir replied that based on her out of character behaviour in the office and the fact she was part of the group that had been at lunch, where it appeared alcohol had been consumed, he proposed to conduct a "suspicion" alcohol breath test.

• [8] Mr Robson's account was that he said that they suspected that Ms Tamati had consumed alcohol while out for lunch, they had a duty of care, and they wanted to make sure that Ms Tamati wasn't under the influence and it was safe for her to drive home. Mr Robson said that he asked Mr Tamati a number of questions, which she answered as follows:
  • Did you go out to lunch with Chris and Robert? Yes
  • Where did you go? Mentioning a pub/Tavern
  • What time did you leave and come back? I'm not sure what time I left, but got back at 2.30 pm
  • What did you have for lunch? Garlic Pizza
  • Did you have anything to drink at lunch? Yes
  • What drinks do you consume? Ice soda water, Jim Beam and Coke, Ice soda water.
  • Did you clock in and out when you left the site? No, I didn't.
  • Are you aware of our company's procedure of signing in and out when leaving site? Yes, I

• [9] In his statement Mr Robson said that Ms Tamati said she felt that she was being tarnished by association with Mr Helene, and said, "this is guilt by association" and she wanted that to be on record. Mr Robson confirmed he was taking notes. (No notes were provided in evidence.)

• [10] Ms Tamati's evidence was that she thought she had been called into the office to talk about Mr Helene's wellbeing. She was confused by the questioning and did not know what her lunch had to do with Mr Helene's wellbeing. Ms Tamati accepted that she initially agreed to do the test but that wanted to know the reason she was being asked to do it. Her evidence was as follows:

I soon felt the "quick chat'' turning into an interrogation against me, so I asked, "On what grounds are you asking me to do this test?"

I was again confused, and I asked, "On what grounds does that have anything to do with me?"

Joel responded and said that it is a random drug and alcohol test.

I replied, "No it's not because this feels like it is with intent."

David then explained that the Company can conduct a random drug and alcohol test. I agreed and explained to David that this feels like it is being forced with intent.

Joel proceeded to advise that the test will be conducted under "Post incident and for cause."

Confused, I asked, "What post incident have I created and what for cause came from it?"

Joel proceeded to then respond with the same comments about Chris again. I asked, "What does that have to do with me?"

I said, "I am happy to do the test, provided you tell me on what grounds I am being asked to do it on?"

Joel responded again with the "Post incident and for cause," purpose.

I replied, "So you are doing this based on assumption or perception through association?"

I was now getting defensive because I felt my character and integrity was being unreasonably attacked based on their false pretences.

• [11] Mr Muir' evidence was that Ms Tamati initially agreed to do the test and then became defensive. Mr Robson described Ms Tamati as initially agreeing to take the test but then becoming defensive. Mr Muir's account included that Ms Tamati was told that based on her out of character behaviour in the office and the fact she was part of the group that had a long lunch where it appeared alcohol had been consumed the company had to conduct a "suspicion" alcohol breath test.

• [12] Mr Muir observed that Ms Tamati's tone was confrontational and that she was not satisfied with the responses she got to her questions. He said that he told her that he appreciated her point of view, but the company had a duty of care for all our employees, if she had a drink with her lunch this was not an issue, the issue was between a drink with lunch and a number of drinks over several hours and potentially being impaired. He said Ms Tamati said the company had no reason to think that she was affected by alcohol and that each of the reasons related to Mr Helene and not her, there was no way the testing could be random, and the company had no right to ask her to undertake a test.

• [13] Mr Golinski then entered the room. Mr Robson's account of what happened next is brief. He said that he explained what had happened to Mr Golinski and Mr Golinski told Ms Tamati that she had been given a lawful direction and asked if she was refusing the test. Ms Tamati responded that she would do the test but asked on what basis it was required. Mr Golinski asked again if she would please just do the test and so "we can all go home". Ms Tamati then asked what would happen if she didn't do the test. Mr Golinski said she would be suspended and following a formal meeting she could face termination of employment. Ms Tamati said she wasn't going to take the test. She was then advised she was suspended with pay and the company would be in touch with details of a formal meeting which would probably be Monday.

• [14] A fuller account of these events is given by Mr Muir who said when Mr Golinski entered Ms Tamati asked why she was being asked to undertake a test when it was all to do with Mr Helene. Mr Golinski is said to have pointed out that the company could undertake testing at any time on its sites and she would be aware that company policies on drugs and alcohol allow this. Mr Muir said Mr Robson again stated there had been an incident in the office. that the managers had reasonable suspicion, and Mr Golinski said that is why they were doing this. Ms Tamati was said to have disagreed with the interpretation of the policy, and said she should not be grouped in with Mr Helene. Mr Muir said it was explained that given the circumstances of her being with the other two managers at lunch and her admitting to having consumed alcohol, the company had a duty of care to ensure she was not impaired and had to ensure she would not drive whilst effected by alcohol. Mr Muir said he mentioned that she was acting out of character, being argumentative, repeating herself, slurring some words and mixing up words and repeating already asked questions. Mr Muir then left the room to take a phone call. He said that when he returned the discussion was over what would happen if Ms Tamati refused the test. He added that he had made a further attempt to have Ms Tamati agree to take the test, but she refused and left after being told she would be suspended and may be dismissed. Mr Muir said he was requested to return to his desk and make a record of what had happened. (Mr Muir's contemporaneous record was not provided with his evidence.)

• [15] Ms Tamati's account of the events following Mr Golinski entering the room was as follows:

I proceeded to try and explain to Tim what was going on, in hope he would help me, and he responded with, "So take the test."

I explained to Tim that I am happy to take the test but I want to know on what grounds first and then I will do it.

Joel then immediately started discussing concerns about Chris again.

By this point I realized I had none in the room supporting me. There were 3 men in power, within the room, collaborating with no intention of safe practice or consideration for me.

Joel continued to talk about Chris and then I asked Joel to, "Stop, stop, stop, please stop, this is so wrong."

I mentally and emotionally had enough of the conversations going around in circles, every time I was trying to get clarification on why I was being treated this way.

I looked at Tim and asked, "If I don't do the test, what are my options?"

I stood up and said, "Thank you" and left the room.

• [16] Later that day the third person who attended the lunch, Robert King, who also resigned, sent an email to a Director of the company explaining that he had been at the lunch, it was longer than usual as the three were discussing a number of issues, clearing the air, and supporting one another. The email referred to working long hours, the lunch providing a break, as usually happens on a Thursday or Friday, and being no different to the way others acted. The email described the events in the office upon the return from work as affronting and stressful and requested a meeting the following day. It seems the meeting did not occur.

• [17] On 11 April 2025, Ms Tamati received an email from Mr Robson advising that a meeting would be held on 14 April 2025. She responded asking for details of what was to be discussed so she could brief her support person or representative. She received a response in the following terms:

As advised by Tim yesterday, the meeting is to discuss your refusal to undertake a breath test. Your support person does not participate in the meeting, they simply witness the meeting on your behalf.

• [18] At the meeting on 14 April 2025 Ms Tamati was summarily dismissed. On 15 April 2025 she committed her recollection of the meeting to writing. That account records those present in the meeting as Mr Robson, Mr Golinski and Askin Ahmed - Ms Ahmed attended as Ms Tamati's support person.

• [19] The meeting was conducted by Mr Golinski who opened by explaining that the meeting was being held as a follow up to Thursday's meeting and Ms Tamati's refusal to follow a lawful instruction. Ms Tamati was asked to provide her reason for refusing the test. Ms Tamati repeated the comments she made in the earlier meeting and asked on what basis the company sought the test. Mr Golinski asserted that the Company could ask employees to undergo a drug and alcohol test. Ms Tamati acknowledged this but asked why she was being asked to do a "random" drug and alcohol test. Mr Golinski replied the test was required "under suspicion". Ms Tamati then asked for a written account of the outcome of the investigation that had occurred since she was stood down. Ms Tamati's account was that Mr Golinski responded aggressively and refused to provide anything in writing and Ms Tamati was being told that the allegation was refusing to follow a lawful instruction by your employer to do a drug and alcohol test. Ms Tamati again asked for the allegation in writing and Mr Golinski responded she would get it after the meeting. Ms Tamati then asked for a copy of the Drug and Alcohol policy and procedures. Ms Tamati described Mr Golinski as then storming out of the meeting returning approximately 10 minutes later and "threw the documents across the table at me".

• [20] After reading the documents Ms Tamati again asked on what grounds the company required her to undergo the test. Mr Golinski asked Mr Robson to provide an answer to Ms Tamati's question. After some questions from Ms Tamati about why Mr Robson was present in the meeting, Mr Robson explained that the test was requested as a post incident and for cause arising from the incident that had occurred with Christopher Helene. Ms Tamati asked what that had to do with her and Mr Robson responded that it was because she went out for lunch.

• [21] Ms Tamati then gave an account of the request to take the test on the previous Thursday. She explained that she was asked by Mr Robson to attend a meeting room for a quick chat. Once in the meeting room she was told that there had been concerns about Mr Helene's safety and asked about the lunch. The conversation then turned to her consumption of alcohol and then a request was made for her to do a drug and alcohol test. Ms Tamati explained that she felt ambushed.

• [22] Mr Robson then gave his account of the Thursday meeting in which he denied discussing Mr Helene and said the test was requested for cause because Ms Tamati was acting out of character. When challenged on this Mr Robson said that another employee overheard Ms Tamati asking what the date was that day and that she was speaking loudly to another colleague about planning a driver's return to work. This was the first time that Ms Tamati had been told that this was the reason she was asked to do the test. Ms Tamati queried how asking about the date and speaking loudly could be deemed as reasonable suspicion. She was told by Mr Golinski that it was unusual behavior that constituted suspicion, which is why she was asked to do a drug and alcohol test.

• [23] Mr Robson said Ms Tamati had repeated that she was told that she was being required to do a random drug and alcohol test. Mr Robson denied that he said it was a random test. He said Mr Golinski repeated that it was not a random drug and alcohol test and asked Ms Tamati for her reason for refusing the test. Ms Tamati's account of what she said is:

I advised "Because I was misled to believe it was a chat about another colleagues wellbeing.

Then there was a total of 3 males within the room with me, forcing me to do the test with no consideration for safe practice or procedures.

Mr Golinski interjected again and said, "What does that have to do with anything?" and said "Oh anyway, doesn't matter".

I continued to explain, "I had no support and there was no duty of care for me"

• [24] The meeting concluded with Mr Golinski advising Ms Tamati that her employment was terminated effective immediately.

• [25] On 15 April 2025 Mr Golinski provided Ms Tamati with a letter confirming the dismissal. It was in the following terms:

This letter serves to confirm the discussion that took place yesterday, during which the company made the decision to summarily terminate your employment on the grounds of serious misconduct. Also present at the meeting were Joel Robson (HR Manager), Askin Ahmet (your nominated support person).

At the start of the meeting you requested a letter detailing the allegations against you. I advised that you were already aware of the issues, as they had been discussed at length during our meeting last Thursday afternoon. I also confirmed that a formal letter would follow today's meeting.

At last Thursday's meeting, you asked what the consequences would be if you refused to undertake the test. I advised you that refusal to comply with a reasonable direction under our Drug and Alcohol Policy is considered a serious matter, and would result in suspension and potentially, termination of employment.

You also requested a copy of the company's Drug and Alcohol Policy, which was provided to you. I reminded you that, given your involvement in previous related matters concerning your team, you are well acquainted with the policy and its requirements.

You queried Joel's presence at the meeting. I explained that Joel had led the discussion with you last Thursday and was therefore best placed to address any questions arising from that meeting.

As reiterated during our discussions, the company was considering the termination of your employment and you were given the opportunity to present any valid reason as to why this action should not be taken. You responded by stating, "You should be giving me a valid reason why I should be terminated."

I again referred to the discussions last Thursday, noting your initial agreement to undertake a drug and alcohol test, followed by your subsequent refusal, constitutes a breach of company policy. You stated that your refusal was based on the belief that you had not been given a valid reason for the test, and that you felt you were being implicated due to your association with a colleague, Chris. Joel clarified that this was not the case and that the request was made in the context of a post-incident/show-cause situation. You asked, what incident?.

Joel further explained that your behaviour on the day in question was concerning. You were observed speaking loudly in the office and appeared confused, at one point asking aloud, "What day is it?"

I stated that the fact you had taken a four-hour lunch and admitted to consuming alcohol during that time provided sufficient grounds for the company to direct you to undertake a test. Your refusal to comply is a clear breach of our Drug and Alcohol Policy.

After further discussion, including your assertion that the situation was "unjust," I again provided you with an opportunity to present a valid reason for your refusal. You reiterated your belief that the situation was driven solely by your association with Chris. Joel reminded you of the company's duty of care to all employees and that any indication of impairment must be acted upon appropriately.

Following these discussions, I advised you that the company had made the decision to summarily terminate your employment on the grounds of serious misconduct. The meeting was concluded at that point.

• [26] MQT also relied upon a number of documents. The documents included Ms Tamati's contract of employment, records showing Ms Tamati was trained in and familiar with the drug and alcohol policy and procedure, the Drugs and Alcohol Policy and Procedures, and the Employee Handbook.

• [27] Ms Tamati's employment contract dated 30 September 2021 included the following:

a) a requirement that Ms Tamati be familiar with and observe the company's policies as varied from time to time (1.8);

b) a requirement to follow all reasonable and lawful directions given by the company including complying with company policies and procedures (6.2 f.);

c) a statement that failure to comply with policies and procedures may result in counselling and disciplinary action being taken under the company's disciplinary policy and procedures (6.2); and

d) a right for the company to terminate the employment immediately by giving written notice and without providing any compensation or payment in lieu of notice if Ms Tamati failed or refused to comply with any lawful direction given by the company through its authorised representative (10.3).

• [28] Training records indicated Ms Tamati attended induction training in 2021 and further training in 2022 which included matters related to drugs and alcohol. More recent emails show the drug and alcohol policy was applied to employees Ms Tamati was responsible for managing.

• [29] The Drugs and Alcohol policy and procedure was provided. The policy required that all workers comply with the drug and alcohol policy and that random alcohol screening may be carried out to enforce the policy as well as testing of any person suspected to be affected by alcohol use with offenders to be subject to appropriate disciplinary action.

• [30] The drug and alcohol procedure included the following;

a) Employees must comply with the policy and procedure. > > b) All employees are required to be drug and alcohol free whilst at work, including on meal breaks.

c) The company testing program includes testing for:

i) Pre-employment drug and alcohol screening;

ii) Reasonable suspicion;

iii) Random drug and alcohol testing (external third party certified testing agency; and

iv) Post incident drug and alcohol testing.

d) Employees will be required to undertake breath tests and/or breath analysis for alcohol.

e) A description of the random drug and alcohol testing program which includes:

i) Testing will be conducted under a controlled environment with an external provider or an approved or certified management representative;

ii) Testing is to occur across the relevant business; and

iii) All facets of the business will be tested from management, supervisors, team leaders, employees labour hire, and visitors.

f) A description of the drug and alcohol testing procedures. It involves:

i) The collector introducing themself and gathering each donor's name, identification, and other details;

ii) The collector ensuring the donor has not eaten or consumed fluids within 20 minutes of the test being conducted; and

iii) Definitions of negative, non-negative and positive results. For alcohol testing the definitions turn on the percentage of blood alcohol content (BAC) detected in the test.

g) The procedures for oral fluid and urine testing for drugs are then described. The procedures are similar to the alcohol testing already described. An additional definition for positive results is provided where employees admit or boast about drug use in front of two or more employees.

h) The process to be followed after a non-negative or positive test is:

i) The employee is stood down;

ii) The employee is transported home;

iii) If transport is refused the offer must be repeated in front of a witness and noted on a form;

iv) The employee will be required to use sick or annual leave;

v) The employee is advised of the result and given the opportunity to respond; and

vi) An investigation will take place and findings will be considered. This information should be considered prior to the implementing of disciplinary action.

i) The consequences of non-negative and positive test results which are:

i) For a first non-negative result an employee may, at a senior managers discretion including whether the company may give leniency, be instantly dismissed or be given a written warning lasting 12 months; and

ii) For a second result within 12 months the employee may be instantly dismissed.

j) Provision for testing to occur in the event of an incident, injury, or near miss where the employees involved may be required to undergo a drug and alcohol test. If an employee returns a positive confirmatory result they may be instantly dismissed.

k) A separate section dealing with refusing or interfering with a drug and/or alcohol test which provides:

i) All employees are required to undergo a drug and alcohol test when directed;

ii) An employee will breach the procedure if they refuse or fail a drug and/or alcohol test or interfere with a test sample

l) Provisions are also made dealing with self-identification, prescription and non-prescription drugs.

m) A statement about the company's prevention emphasis through providing support and education programs.

n) Appendix 1 to the procedure provides a list of activities that are identified as high risk activities stating that workers are prohibited for carrying out those activities when they return a BAC reading above 0.00%. (The list does not include the duties performed by Ms Tamati.)

o) Appendix 2 lists signs and symptoms of alcohol and drug use. The signs and symptoms for alcohol use are listed as:

i) Staggering, unsteady on feet:

ii) Slurred or incoherent speech: ​

iii) Confusion:

iv) Disorientation (uncertainty of person, place, or time):

v) Inappropriate behaviour and emotional responses (e.g., mood swings): and ​

vi) Altered state of consciousness.

• [31] Neither the policy nor the procedure included a sanction for refusing a test.

• [32] The Employee Handbook deals with disciplinary process. It provides:

a) Employees must abide by company policies, treat others respectfully, care for property, and perform work to agreed standards. ​

b) Examples of misconduct which include bullying, harassment, fraud, assault, negligence, property damage, absenteeism, and failure to follow policies.

c) That allegations are investigated thoroughly, and employees may be suspended with pay during the investigation for serious breaches. ​

d) Disciplinary actions may include warnings, counselling, demotion, or dismissal. ​ Serious misconduct may result in instant dismissal. ​

• [33] Section 390 of the Act provides that the Commission may order a person's reinstatement, or the payment of compensation to a person if satisfied that the person was protected from unfair dismissal at the time of being dismissed and the person has been unfairly dismissed.

• [34] Section 382 provides that a person is protected from unfair dismissal if the person is an employee who has completed a period of employment of at least the minimum employment period and the person is covered by a modern award, an enterprise agreement applies to the person, or the person earns less than the high-income threshold. It was not contested, and I am satisfied, that the Ms Tamati is protected from unfair dismissal for the purposes of s.382.

• [35] Section 385 provides that a person has been unfairly dismissed if the Commission is satisfied of four matters: that the person has been dismissed, the dismissal was harsh, unjust or unreasonable, the dismissal was not consistent with the Small Business Fair Dismissal Code, and the dismissal was not a case of genuine redundancy. There is no question that Ms Tamati was dismissed. MQT employs 1300 employees and is not a small business. The Small Business Fair Dismissal Code does not apply. It was not suggested that the dismissal was a case of genuine redundancy.

• [36] The issue for determination is whether the dismissal was harsh, unjust, or unreasonable. Section s. 387 lists the matters that must be considered by the Commission in determining whether the Commission is satisfied that the dismissal was harsh, unjust, or unreasonable.

• [37] Section 387(a) requires a consideration of whether there was a valid reason for dismissal relating to capacity or conduct. Ms Tamati was dismissed for serious misconduct. The conduct relied upon was the refusing to do a breath test on 10 April 2025. The Respondent contends that as the refusal was in breach of the drug and alcohol policy it was serious misconduct. It also contends that it was a refusal to follow a lawful direction and it had a right under the contract to summarily dismiss for refusing to follow a lawful direction including following policies and procedures.

• [38] The conduct is not contested. Ms Tamati refused to take the test. Whether it was a breach of the policy is not as clear as Ms Tamati challenges that the request was made in accordance with the policy.

• [39] There is ample authority in the Commission dealing with dismissal for the breach of a drug and alcohol policy; see City Ferries Pty Ltd v Christopher Toms [2020] FWCFB 6249, Owen Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 and Sydney Trains v Reece Goodsell [2024] FWCFB 401. In Goodsell the Full Bench considered that the breach of a lawful and reasonable drug and alcohol policy can constitute a valid reason for dismissal under section 387(a) of the Fair Work Act, even if there is no evidence of impairment. The Full Bench also set out six principles derived from the earlier cases[1]:

a) The breach of a lawful and reasonable drug and alcohol policy simpliciter (e.g., attending work with a prohibited substance in the system above a stipulated threshold) can constitute a valid reason for dismissal under section 387(a) of the Fair Work Act, even if there is no evidence of impairment.

b) ​Blanket drug and alcohol policies that provide for disciplinary action, including dismissal for breaches, may be lawful and reasonable. ​ This is particularly true for employees performing safety-critical work or work where impaired performance could jeopardize health, safety, or the employer's reputation.

c) ​The reasonableness of such policies is supported by the fact that there is no reliable scientific test for impairment from drug use. ​ Employers face challenges in determining when and how much of a prohibited substance was consumed, making blanket policies a reasonable tool for managing risk.

d) ​Drug and alcohol policies are designed to manage macro-level risks, such as reputational damage, legal liability, and workplace safety. ​ These risks exist regardless of whether an employee is impaired at work, as the mere presence of prohibited substances in their system can pose broader risks to the employer's business.

e) While breach of a lawful and reasonable policy may provide a valid reason for dismissal, mitigating factors - such as the employee's personal circumstances, lack of understanding of the policy, or general workplace context - are relevant under section 387(h). ​ These factors must be weighed separately in the overall assessment of whether the dismissal is harsh, unjust, or unreasonable.

f) If an employer asserts that an employee was impaired at work, or there was a risk of impairment, this must be assessed under section 387(a) to determine whether it constitutes a valid reason for dismissal. ​ However, a finding of impairment or risk of impairment is not required to justify a dismissal for breach of a drug and alcohol policy. ​

• [40] The reason given to Ms Tamati at the time of the dismissal was not as refined as the reason advanced in the hearing. The termination letter does not clearly state the reason for dismissal. It recounts the discussion in the meeting on 14 April 2025, goes over the various discussions about the request to take the breath test on 10 April 2025, and asserts that the dismissal was for serious misconduct. It was in the proceedings that MQT contended that the misconduct was refusing the breath test on 10 April 2025 which was a failure to follow a lawful and reasonable instruction and a breach of the Drugs and Alcohol policy which led to a contractual right to dismiss.

• [41] I was referred to the decision of Deputy President Asbury (as she then was) in Kylie Desmond v Lyndons Pty Ltd [2021] FWC 5677 where it was found that the repeated refusal to undertake a drug and alcohol test due to a preference for a testing method that differed from the employer's policy amounted to a refusal to comply with a lawful and reasonable direction, and was inconsistent with the continuation of employment. That case turned on its own facts. Those facts are different to the present case. Reference is made in that case to the High Court authority on the common law test on the lawfulness of directions made in employment R v The Darling Island Stevedoring and Lighterage Company Limited; Ex parte Halliday and Sullivan[2] where Dixon J stated:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable. In other words, the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of service and are reasonable. ... But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled. When an employee objects that an order, if fulfilled, would expose him to risk, he must establish a case of substantial danger outside the contemplation of the contract of service.

• [42] Starke J also observed that: "...whether the instruction be or not be reasonable...is a question of fact having regard to all the circumstances and falls for determination accordingly." [3] And McTiernan J stated that: "Reasonable means 'reasonable in all of the circumstances of the case' "[4].

• [43] Applying this approach, I make the following observations.

• [44] First, I am not convinced the direction to take the test was reasonable and lawful. I agree that if the direction to Ms Tamati to take the test was made it accordance with the policy, then it would be a reasonable and lawful direction. But my assessment of the evidence is that the grounds for requesting the test, whether "random", "post-incident, or for cause", or "on suspicion" was not made clear to Ms Tamati. Indeed, the accounts of the reason for the test in the discussions on both 10 and 14 April 2025 were equivocal. There was discussion about whether the test was random, whether it was post-incident or on suspicion. There were also statements that the test was required due to the company's "duty of care" to ensure Ms Tamati was not going to drive home affected by alcohol. It appears that there was some consensus that the request arose on an "on suspicion" basis but there were different views as to how the suspicion arose. The difference being whether the suspicion arose due to Ms Tamati's attendance at the lunch or whether it was the way she conducted herself upon returning from lunch or whether it was both of these things. Mr Muir said that going to lunch didn't necessarily give rise to suspicion, but that Ms Tamati's conduct upon returning from lunch and during the meeting did. Mr Robson's account was that it was because Ms Tamati had attended the lunch with her colleagues and there had been an incident involving Mr Helene when they returned. Mr Golinski seemed less interested in the reason the test could be required and more focussed on the fact that the company was generally able to require Ms Tamati to undertake a test and she should so "we can all go home".

• [45] Further, had the justification been for suspicion on return to the office - speaking loudly, asking about the date - I would regard it as unfounded as those matters did not give rise to the requisite suspicion. That conduct does not fit comfortably with the signs of intoxication listed in the policy - staggering, incoherence, confusion, disorientation, being unsteady, engaging in inappropriate behaviour, or having an altered state of consciousness. Had the justification been for attending the lunch alone the evidence of Mr Muir and the email from Mr King suggest that attending lunches at licensed premises was not considered out of the ordinary. Even taken together, the attendance at the lunch and the claimed unusual behaviour, does not in my view regard give rise to a suspicion that she had been drinking such that the policy would apply.

• [46] Second, and directing attention to the refusal to undergo the test, it is clear Mr Muir, Mr Robson and Mr Golinski were frustrated with Ms Tamati's queries about the basis for the test. Ms Tamati was entitled to make queries given there was no clear basis for the direction. The policy itself was not provided to Ms Tamati on 10 April 2025. She was not directed to any specific provision entitling the company to require her to undergo the test. The written policy was only provided reluctantly when requested at the meeting of 14 April 2025. It would have been a simple matter, and a reasonable step to provide a copy of the policy at the time the test was requested. Ms Tamati's refusal to take the test in those circumstances was justified.

• [47] Third​, the policy itself does not specify a sanction for refusing a test. This is in contrast to the situation where a positive or non-negative test result is recorded. The policy states that, in the case of a positive test result, an investigation must be conducted before disciplinary action is taken. Immediate dismissal may follow but that is at senior management's discretion. If leniency is exercised, then a formal written warning lasting 12 months is given. There is nothing in the policy mandating dismissal for a breach arising from a non-negative test. The policy said nothing at all about the consequences of a breach arising from a refusal to test. Ms Tamati was told that if she did not take the test she would be suspended and a further meeting would take place which may lead to dismissal. This was not stated in the policy. It was a reference the disciplinary process outlined in the Employee Handbook which applied to incidences of failing to abide by company policies. It was however not a full account of the process. The Handbook included a requirement that allegations be investigated thoroughly and that disciplinary action may include warnings, counselling, demotion, or dismissal. In the Handbook reference is made to serious misconduct resulting in instant dismissal.

• [48] When the direction was made Ms Tamati assumed that if she refused an investigation would take place. Nothing in the evidence indicates that an investigation was conducted between 10 and 14 April 2025. The allegation that Ms Tamati's refusal constituted serious misconduct that warranted summary dismissal was not put to her. No reference was made to the terms of the drugs and alcohol policy that was said to be breached. No further explanation or clarification of the basis for requesting the test were provided to Ms Tamati. The specifics of the policy said to be breached were not put to Ms Tamati. She was not told that as the Drugs and Alcohol policy did not provide a sanction the disciplinary policy would be invoked or that the disciplinary policy permitted other sanctions such as counselling or warnings. In the circumstances I find that Mr Golinski had formed the view that Ms Tamati either take the test or she would be suspended and then dismissed. At the meeting of 14 April 2025 options other than instant dismissal were not considered. I note Mr Robson's evidence that before that meeting the managers considered that if Ms Tamati showed some contrition for her actions, then she may not be dismissed. This was not conveyed to Ms Tamati at the meeting and the dismissal took place in the meeting with no further consideration of other options.

• [49] Taking these matters together I consider that the direction to take the test was not a reasonable direction. In these circumstances I do not believe the decision to dismiss Ms Tamati was sound, defensible or well founded in the sense described by the Industrial Court of Australia in Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333; (1995) 62 IR 371 at p. 373. There was more to Ms Tamati's conduct than a simple refusal to follow a direction. Further, and putting the issues surrounding the policies to one side, a valid reason is not made out by simply asserting a legal right to terminate under a contract. Valid reason is judged by the existence of a reason for the exercise of that right related to the facts of the matter[5]. The facts of the matter, including the lack of clarity about the reason for directing that the test be conducted, the absence of a clear sanction for refusing the test in the policy, the misleading statement that the refusal would lead to dismissal, and the failure to consider disciplinary action other than dismissal all speak against there being a sound, defensible or well founded reason for exercising the right under the contract.

• [50] I find that MQT acted unreasonably as there was no valid reason for dismissal and my finding weighs in favour of a finding that the dismissal was unfair.

• [51] Section 387(b) and (c) deal with whether the employee was notified of the valid reason and given an opportunity to respond to that reason. The reference to "that reason" is a reference to the valid reason found to exist under s.387(a) and the reference to being "notified" is a reference to putting the valid reason to the employee in plain and clear terms[6]. I have found that there was no valid reason for the termination. I also note that Ms Tamati asked for, but was not given, the allegations that she was to face at the meeting on 14 April 2025. She Was not provided with the Drugs and Alcohol policy until she requested it. She was not directed to the provisions of the policy that justified the request that she undergo a test. It was not put to her in terms either before or at the meeting that she was in breach of her contract of employment and that the contract permitted the company to dismiss her immediately and that it was acting on that right. These matters weigh in favour of a finding that the dismissal was unjust.

• [52] Section 387(d) deals with whether the employer unreasonably refused to allow the employee to have a support person present to assist at discussions relating to the dismissal. In this case Ms Tamati was given an opportunity to have a support person present in the discussion on 14 April 2025. This matter weighs in favour of a finding that Ms Tamati was treated fairly.

• [53] Section 387(e) requires consideration of whether the employee was warned about unsatisfactory performance before the dismissal. MQT does not rely on unsatisfactory performance for Ms Tamati's dismissal. This factor is not relevant to my consideration.

• [54] Section 387(f) and (g) are about to what degree the size of the employer's enterprise was likely to impact on the procedures followed in effecting the dismissal and to what degree any absence of dedicated human resource management specialists or expertise likely impacted the procedures followed in effecting the dismissal. MQT is a large employer. In its response to the application it indicated that it employs over 1300 workers working on various sites. Ms Tamati worked in a management role in the company's head office. The company had access to dedicated human resources specialists in Mr Robson and Mr Golinski who were both involved in the dismissal. The size of the employer and the access to specialist give rise to an expectation that processes that lead to dismissal will be thorough and in accordance with company policies. I have described the deficiencies in the manner in which the dismissal was carried out above. These factors weigh in favour of a finding that the dismissal was unreasonable.

• [55] Section 387(h) deals with other matters the Commission considers relevant. In Goodsell the Full Bench observed that where a dismissal is for breach of a drug and alcohol policy mitigating factors such as the employee's personal circumstances, lack of understanding of the policy, or general workplace context - are relevant under section 387(h). ​This observation is apt here.

• [56] Ms Tamati's confusion about how the policy was being applied is a relevant factor. It was justified. The explanations given were confusing. Attempts by Ms Tamati to clarify the reason for the direction were unsuccessful. Ms Tamati was not provided a copy of the policy at the time the direction was made to assist in clearing up the confusion. I do not consider the manner in which the request made to Ms Tamati on 10 April 2025 to undertake the test was reasonable.

• [57] The workplace context is also relevant. That context includes the way in which the discussion in the 10 April meeting turned from a discussion about Mr Helene to a direction that Ms Tamati take a breath test. It also includes the fact that Ms Tamati felt ambushed and told the managers that is how she felt. It also includes the confusion around what basis the test was being requested. The broader context also includes, according to Mr Muir's evidence and Mr King's email, attending licensed premises at lunch time was tolerated. The suggestion that Ms Tamati was acting unusually on her return was also no basis for requiring her to do a test. She did not show the signs of intoxication referred to in appendix 2 of the policy. It follows, in my view that it was also harsh to dismiss Ms Tamati for not following the direction. As I have already said, I do not consider MQT's argument that there was a contractual right to dismiss to be persuasive. I find that it was unjust to act on that right in the circumstances.

• [58] A further relevant matter is the failure of MQT to consider disciplinary action short of dismissal. Reference was made in the proceedings to the disciplinary policy. The disciplinary procedure was described in the Employee Handbook. It allowed for sanction less than dismissal based on the circumstances of the case. Mr Golinski when informing Ms Tamati of the consequences of not taking the test said that her refusal may lead to termination of employment. This suggested to Ms Tamati that there would be an opportunity for her to address any reason for termination. In the event, Mr Golinski at the meeting on 14 April took the approach that dismissal must follow given Ms Tamati's failure to follow the direction, unless she could adequately explain her refusal to do so. This was an unreasonable approach to take.

• [59] I also note that Ms Tamati did explain her reason. She stated that she felt ambushed and she had not been given a clear basis for the request to take the test. She also felt she was being unfairly targeted. It is clear on the accounts given of the meeting on 14 April 2025 that her explanation was not considered.

• [60] MQT also failed to take into account the impact of the dismissal on Ms Tamati. Her personal circumstances were not considered. Her past good record and service for the company were also not considered. She was dismissed summarily and no notice or payment in lieu of notice was given. I do not consider the circumstances warranted summary dismissal.

• [61] Taking into account the matters in s. 387 I am satisfied for the purposes of s. 385(b) that the dismissal was harsh, unjust and unreasonable. The matters referred to under ss. 387 (a), (b), (d), (f), (g) and (h) lead me to that satisfaction. I give greatest weight to the matters under s. 387(a) and (h). The matters under either of those paragraphs would lead me to the conclusion that the dismissal was unfair.

• [62] Ms Tamati seeks compensation rather than reinstatement. She commenced employment in another job four weeks after she was dismissed. Her new role pays $100,000 per annum. Her role at MQT paid $127,000 per annum.

• [63] The Commission can only order the payment of compensation where it is satisfied that reinstatement is inappropriate, and it considers that an order for compensation in lieu of reinstatement is appropriate in all the circumstances. I consider that it is inappropriate to order reinstatement. Ms Tamati was treated poorly by MQT and understandably does not to wish to work for the company. She has found other employment, and it is appropriate to respect her wishes.

• [64] I am satisfied that it is appropriate in the circumstances to make an order for compensation in lieu of reinstatement. In doing so, I am required by s. 392 to take account of all the circumstances of the case, including the matters listed in subsections (2)(a) to (g) of that section. I have taken those matters into account. I note MQT is a large business, and its viability will not be affected by any order made.

• [65] The well-established approach to the assessment of the quantum of compensation under s.392 of the Act is to apply the "Sprigg formula". That formula is derived from the Australian Industrial Relations Commission Full Bench decision in Sprigg v Paul's Licensed Festival Supermarket [1998] AIRC 989; (1998) 88 IR 21 which concerned compensation in similar provisions in earlier legislation. The application of that formula, in the context of the current legislation, was explained by the Full Bench in Double N Equipment Hire Pty Ltd t/a A1 Distributions v Humphries [2016] FWCFB 7206.

• [66] The first step is to consider s. 392(2)(c) and determine what Ms Tamati would have received, or would have been likely to receive, if she had not been dismissed. This requires an assessment of how long she would have remained at MQT and the remuneration she would have earned. The next step is to make the various adjustments in accordance with s.392 for matters that include the impact on the business, monies earned since dismissal, any reduction on account of the employee's misconduct and the application of the cap of no more than earnings in the six months prior to the dismissal. A reduction for contingencies has also been commonly applied to take into account likely changes in circumstances that may impact ongoing employment. This approach is subject to the overarching requirement to ensure that the level of compensation is an amount that is considered appropriate having regard to all the circumstances of the case.

• [67] Some speculation is required in determining what Ms Tamati would have earned had she not been dismissed. Ms Tamati was a manager. I was not taken to any concerns about her performance. I consider that she would have continued to work for the company for some years. The dismissal occasioned loss. First, Ms Tamati was not paid in lieu of notice and lost four weeks' pay between the dismissal and finding another job. That loss is $9,768.00. Ms Tamati has mitigated that loss by finding another job but she has also suffered a loss of $27,000 a year in her salary because the new job pays less. I anticipate that in her new employment she will achieve wage increases. She presented as a competent manager who will prove an asset in her new employment and will be rewarded accordingly. Consequently, I expect that loss in salary will be temporary. I consider it will take her two years to regain the salary she was earning at MQT. While it is not straight forward exercise I consider her loss in salary associated with the dismissal over that time can be assessed as a loss of $54,000.00.

• [68] Applying the next step in coming to a final figure involves making various adjustments for matters that include the impact on the business, monies earned since dismissal, any reduction on account of misconduct and a possible reduction for contingencies which may take into account likely changes in circumstances that may impact ongoing employment. I do not see the need to make any adjustments to the amount of earnings lost. There is no adverse impact on the business. Ms Tamati's earnings in the new job have already been taken into account in the difference between the two salaries. There was no misconduct justifying a deduction. No evidence or submissions were made in relation to contingencies.

• [69] My assessment of the loss is total loss is 63,768.00. That amount exceeds the earnings made in the 6 months prior to dismissal which was $63,500.00. I am therefore required to apply the compensation cap in s. 392(5). Consequently, I will order that compensation be paid of $63,500.

• [70] I find that Ms Tamati was unfairly dismissed.

• [71] Ms Tamati does not seek reinstatement, and I do not think it is appropriate to order that she return to work with MQT. I order compensation in lieu of reinstatement. The amount is the maximum amount available under the legislation. I consider that to be appropriate in the circumstances.

• [72] Orders for the payment of compensation will issue separately.

[2] [1938] HCA 44; (1938) 60 CLR 601

[5] See Miller v University of NSW [2003] FCAFC 180; 132 FCR 147 at [13]

[6] See Bartlett v Ingleburn Bus Services Pty Ltd [2020] FWCFB 6429 at [19] and Sydney Trains v Trevor Cahill [2021] FWCFB 1137 at [60].

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