Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] This is an application in which Mr Pitts is seeking a remedy for alleged unfair dismissal.

[2] On 29 January 2013, Mr Pitts failed an alcohol and drug test administered by his Employer. After confirmatory laboratory testing which indicated the presence of Cannabis and methamphetamines in his system, Mr Pitts was initially given until 1 February, and later, 8 February 2013 to provide a clear test result. Mr Pitts failed to do so by 8 February 2013 and was dismissed by his Employer on 11 February 2013.

[3] On 5 March 2013, Mr Lewis Pitts (Applicant) made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from AGC Industries Pty Ltd (AGC or Employer) pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[4] The application was unable to be resolved at conciliation and referred to me for arbitration on 5 April 2013.

[5] Procedural directions were issued on 10 April 2013 and arbitration took place on 28 June 2013.

[6] At the hearing on 28 June 2013, Mr Pitts was represented by Mr M Swinbourn, Senior Industrial Officer, Construction, Forestry, Mining and Energy Union (CFMEU). The Applicant gave evidence on his own behalf together with Mr P Heathcote, Organiser, CFMEU.

[7] The Employer was represented by Ms E Buchanan, Senior Employee Relations Advisor. Mr Olyett, AGC Site Manager at the Alcoa Wagerup alumina refinery gave evidence on behalf of the Employer.

[8] At the conclusion of the hearing, I reserved my decision. Having considered the documentary material as a result of the procedural directions, evidence and submissions, this is my decision and reasons for decision.

[9] The Employer is engaged as a contractor to provide maintenance services to Alcoa of Australia Limited at its Kwinana, Pinjarra and Wagerup alumina refineries in Western Australia.

[10] The Employer employs around 60 employees at the Wagerup refinery.

[11] Mr Pitts commenced employment as an Advanced Scaffolder on 16 March 2012 at the Wagerup refinery.

[12] Mr Olyett commenced as the Wagerup Site Manager on 8 August 2012.

[13] On 29 January 2013, the Employer conducted a site-wide drug and alcohol test at the Wagerup refinery.

[14] In the test, it was possible to detect the following substances:

[15] Mr Pitts undertook the test and his test sample indicated the presence of:

[16] Of the 56 employees, seven (7) employees provided positive results which required further testing by a laboratory.

[17] All employees, including the Applicant, were stood down until the laboratory results were returned.

[18] On 30 January 2013, the Employer received the results of Mr Pitts' confirmatory test results.

[19] The confirmatory test results indicated the presence of:

[20] While the laboratory cut off for Cannabis is 15 ug/L, the Employer had a 50 ug/L threshold.

[21] The trace detection of Methamphetamines was not consistent with the stated medications of Brufen and Codeine, however, it was below the Employer's threshold cut off level.

[22] The circumstances of the other six (6) employees were as follows:

Presence of Cannabis but below the Employer's then cut off level. Issued with a written warning on return to work.

Presence of Codeine but consistent with declared medication. Returned to work - no further action.

Presence of Cannabis at a higher level than the Applicant (222 ug/L). Provided a clear sample on Wednesday 6 February 2013, returned to work and was issued with a final written warning.

Presence of Cannabis albeit below the cut off limit, Methamphetamines and amphetamines. Employee's employment terminated on the basis that he had already received a final written warning prior to the drug test being conducted.

Presence of Cannabis at a higher level than the Applicant (201 ug/L). Provided a clear sample on Thursday 7 February 2013, returned to work and was provided with a final written warning.

Presence of prescribed medication. The employee returned to work - no further action.

[23] The Employer made a decision to give employees above who had returned a positive test, and the Applicant, until close of business on 1 February 2013 to provide a clear test.

[24] Mr Olyett attempted unsuccessfully to contact the Applicant on Wednesday 30 January 2013 to advise him of the confirmatory test results.

[25] On Thursday 31 January 2013, after several attempts, Mr Olyett spoke with the Applicant and advised him as follows:

● his laboratory test result had been received and it confirmed a positive result;

● he had until close of business on Friday 1 February 2013 to provide the Employer with a clear drug test result;

● if he provided the Employer with a clear test result by 1 February 2013, he would be allowed back at work but be subject to disciplinary action; and

● if he did not return a negative result, there may be further consequences and that his employment may be terminated.

[26] Following discussions with the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU), the Employer agreed to extend the deadline to provide a clear test until 8 February 2013.

[27] On the afternoon of Thursday 31 January 2013, Mr Olyett unsuccessfully attempted to contact the Applicant and advise him of the extension of time.

[28] On Friday 1 February 2013, Mr Olyett informed Mr Pitts that the time to provide a clear drug test had been extended from 1 February 2013 until close of business Friday 8 February 2013.

[29] On Thursday 7 February 2013 the Applicant undertook a drug test.

[30] On Friday 8 February 2013, the Applicant obtained the results of the drug test.