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[2016] FWC 1941
Fair Work Commission
2016-05-11
Vice President Watson, President Watson
Original judgment source is linked above.
[2016] FWC 1941 [Note: An appeal pursuant to s.604 (C2016/1269) was lodged against this decision - refer to Full Bench decision dated 2 August 2016 [[2016] FWCFB 4818] for result of appeal.]
s.394 - Unfair dismissal
Application for relief from unfair dismissal - whether alleged conduct occurred - parties agreed on key factual dispute that will determine the application - Fair Work Act 2009, s.394.
[1] This decision concerns an application for an unfair dismissal remedy made under s.394 of the Fair Work Act 2009 (the Act). The application was made by Mr Colin Wright in relation to the termination of his employment with AGL Loy Yang Pty Ltd (AGL).
[2] The matter proceeded by way of determinative conference on 1 March 2016. Mr M Harding of counsel appeared on behalf of Mr Wright and Mr D Williams of counsel appeared on behalf of AGL.
[3] At the determinative conference statements from the following persons were admitted into evidence:
[4] Mr Wright, Mr Nelson, Mr Demetrious and Mr Murnane were cross-examined. Constable David Ledgar, who was part of the police team investigating the accident involving Mr Wright on 27 August 2015, gave oral evidence and was cross-examined.
[5] At the conference the parties advised that had reached an agreement in relation to the key issue to be resolved and the implications of the outcome of that factual dispute for Mr Wright's application. The parties agree that the key question for the Commission to determine is whether Mr Wright consumed synthetic cannabis prior to, or during, his journey from work on 27 August 2015, following the completion of his shift on that morning. Mr Wright has conceded that if this question is answered in the affirmative, his application must fail. AGL has conceded that if the question is answered in the negative, there would be no impediment to Mr Wright returning to work.
[6] Mr Wright was employed by AGL as a Level 8 Mine Operator at Loy Yang, a power station and coal mine in the Latrobe Valley. He had been in that employment since August 2012 when AGL became the operator of Loy Yang A. However, at the time of the dismissal he had been continuously employed at the power station and coal mine by various operators of Loy Yang A for 30 years.
[7] Mr Wright's duties included the operation of large mining plant including dredgers, bulldozers, stackers and conveyor systems. Further duties also included the operation of the control centre, the isolation and 'making safe' of plant and conducting inspections and reporting on issues.
[8] When performing his duties, Mr Wright was required to follow lawful and reasonable directions given to him by AGL and comply with AGL's Code of Conduct, Alcohol and Other Drugs Management Policy and other policies. AGL expects that employees attending for and performing safety critical work are free from the consumption of alcohol and/or drugs so as to ensure that their capacity to safely perform their role is not affected.
[9] Mr Wright was dismissed from his employment on 17 September 2015. AGL terminated Mr Wright's employment following an investigation and show cause process concerning an incident whereby AGL determined that Mr Wright had used synthetic cannabis in the car park prior to leaving work on the morning of 27 August 2015. The use of synthetic cannabis on 27 August 2015 is disputed by Mr Wright.
[10] Evidence was given concerning previous incidents involving Mr Wright's use of synthetic drugs in the workplace, including on 28 March 2013 and 8 January 2015.
[11] On 28 March 2013 Mr Wright was observed in a severely impaired state by employees. He started to hallucinate and felt convulsions and was unable to speak. During the investigation that followed, Mr Wright advised that this was as a result of a bad reaction to the synthetic substance combined with the consumption of prescription medication. No formal disciplinary procedures were implemented, however AGL advised Mr Wright that it was unacceptable to be at work while affected by an incapacitating drug.
[12] On 8 January 2015 Mr Waterhouse found Mr Wright in the toilet holding a smoking device, a water bong. Mr Wright accepts that he was smoking synthetic cannabis with the bong. As a result of this incident, AGL issued a final written warning to Mr Wright on 29 January 2015. The letter indicated that Mr Wright was required to complete a residential drug and alcohol rehabilitation program for a minimum of 10 weeks. It was stipulated that Mr Wright would meet the costs of the rehabilitation program, however AGL ended up paying for the majority of the costs.
[13] After Mr Wright completed the rehabilitation program a return to work plan was prepared. Mr Wright signed this return to work plan, acknowledging that failure to adhere to the requirements of the plan may result in the termination of his employment.
[14] Mr Wright was involved in a car accident on the morning of 27 August 2015 after concluding a night shift.
[15] On the morning of 27 August 2015, Mr Demetrios received a telephone call from Constable Christensen from the Traralgon Police Station. Constable Christensen told Mr Demetrios that police had attended the scene of the accident and that Mr Wright was the driver of a vehicle which drove through the front of three houses. Constable Christiansen advised that Mr Wright told the police that he finished work and decided to smoke a synthetic substance before driving home.
[16] AGL commenced a show cause process in which Mr Wright was required to show cause as to why his employment should not be terminated because of this incident. At the conclusion of the process AGL determined that Mr Wright's employment would be terminated on 17 September 2015.
[17] The decision to terminate was based on a belief that Mr Wright had consumed synthetic cannabis prior to or during his journey from work and the clear serious safety implications of such behaviour at or near the Loy Yang mine and power station.
Did Mr Wright consume synthetic cannabis prior to, or during, his journey from work on 27 August 2015?
[18] Mr Wright gave evidence that on 27 August 2015 he worked a 12 hour night shift that finished at about 6am. He says that it was a difficult shift. Near the start of the shift he was driving down into the mine with his shift partner, Mr Peter Hoeben, when Mr Hoeben passed out while sitting next to him. Mr Wright could not get a response from him. Mr Wright arranged for medical assistance and resumed his work after the ambulance arrived.
[19] Mr Wright said that he remembers feeling tired by the end of the shift. He believes this was due to a combination of the stressful events concerning Mr Hoeben and the fact that he had only recently returned to working night shifts.
[20] Mr Wright stated that when he arrived in the car park, he went directly to his car, got in and drove off.
[21] Mr Wright recalls driving out of the Loy Yang car park into Bartons Lane. He stated that on this occasion, he did not use his normal route home as he had scheduled his car for a service that day and was taking it in to meet that appointment.
[22] Mr Wright recalls that not long after he passed his usual turn off the weather deteriorated. The road was very wet and visibility was poor.
[23] Mr Wright said that he is aware that at the end of Bartons Lane there is a roundabout that joins Bartons Lane to Whittaker Road, on the outskirts of Traralgon. Mr Wright's evidence is that on the morning of 27 August 2015, he has no recollection of seeing the roundabout or taking any action to slow his car. He now believes that he went through the roundabout and then ploughed into the yards of the two closest houses, going through their fences as he did so. He then hit a verandah, causing the roof to collapse and kept going until he hit another fence. This belief is based on what he saw when he returned the next day to view the damage.
[24] Mr Wright's account is that he has a vague recollection of seeing people milling about him at a time that he believes must have been after the accident. He remembers seeing people in uniforms but cannot recall whether they were police, ambulance or other emergency personnel.
[25] Mr Wright has no recollection of having a conversation with anyone at the scene of the accident. If he did speak to someone, he does not know what he said. Specifically, Mr Wright gave evidence that he could not recall any conversation with a police officer in which the police officer asked whether he had taken any substances, and he cannot recall telling the police officer that he had smoked synthetic marijuana.
[26] Mr Wright recalls being in an ambulance, but not being placed in it. He recalls being at a hospital, which he now knows to be Latrobe Regional Hospital. Mr Wright gave evidence that sometime later that morning he became coherent and conscious of his surroundings and observed his wife having a conversation with a doctor. The doctor told his wife that he had either passed out or fallen asleep at the wheel. Mr Wright said that he remained in hospital until about midday on 27 August 2015. The doctor's comments to his wife remain the only explanation he has been given for the accident of 27 August 2015.
[27] Mr Wright maintains that he did not use synthetic cannabis before he drove his car that morning or during the journey. Mr Wright says he has never before had a car accident in which he cannot recall the events, and he has never passed out. He says that passing out is not a feature of synthetic cannabis when he has used it. What he has experienced is a feeling of being relaxed, which usually lasts for a short period of no longer than 20 minutes.
[28] Mr Demetrios gave evidence that on the morning of 27 August 2015 he received a telephone call from Constable Christiansen from the Traralgon Police Station. Constable Christiansen told him that police had attended the scene of the accident and that Mr Wright was the driver of a vehicle which drove through the front of three houses. Constable Christiansen advised that Mr Wright told the police that he finished work and decided to have a smoke of a synthetic substance before driving home.
[29] The police officer referred to by Constable Christiansen is Constable Ledgar. The notes taken by Constable Ledgar, recorded shortly after Mr Wright was taken away from the scene of the accident by an ambulance, state the following:
"On police attending driver still in v[ehicle] pressing accelerator. I turned v[ehicle] of[f] and took keys and door Male [indistinct] breathing appear[ed] substance effected (sic) Head continually turning left right when speaking [indistinct] slow to respond and eyes wide open but appear not to be able to focus. Slightly blood shot, little to no blinking. Male stated just finished work after 12 hour shift. Stated had smoke[d] some synthetic cannabis... Male ability to speak diminished."
[30] Constable Ledgar gave the following evidence-in-chief in respect of his observations of Mr Wright:
"…Now, Constable Ledgar, are you able to recall your observations of the occupant, who is Mr Wright, when you first arrived on the scene?---When I first arrived at the scene, I was flagged down by two males who were out on the street, who directed me to where Mr Wright's vehicle was, because it wasn't visible from the street. When I approached the vehicle, he was - or the driver I could see was male and the vehicle was revving it's engine and I could see the driver moving his arms in the vehicle. I approached the window, which was half down. I could still see that he was pushing on the accelerator and he was moving the gearstick from drive to reverse, backwards and forwards. The car wasn't moving, so I put my hand through the window, turned the vehicle off and the driver continued to make the same movements, as if he was trying to drive a vehicle, or get it to move. I then opened the door and tried to speak to the driver. It was only at that point that he seemed to acknowledge that I was there, however, when I was asking him questions, or I started to ask him questions in relation to what his name was and details of what had happened, I wasn't getting any response. I continued asking those questions and made checks via the radio as to whether an ambulance was on its way, which it was, and just continued to speak to Mr Wright. He wasn't very responsive. His head was constantly twitching from left to right, as I was speaking to him. His eyes were glazed over and they were bloodshot and they were watery, giving the glassy appearance. During my conversation with him, he would - eventually I got his name out of him and the address which he gave as being a Churchill address, date of birth and a telephone number. I asked him if he had taken anything. Initially I wasn't getting any response to those questions. As I explained to Mr Wright at the time, ambulance are going to need to know what you've taken because you're not looking in a good way. He's eventually stated that he'd had synthetic cannabis and I gave that update over the radio and requested the ambulance to hurry considering his appearance. He seemed to be getting worse. I was concerned at that point that he may have been overdosing, so I wanted the ambulance there as soon as I could.
And just to make sure the record's clear, Constable Ledger, because you're speaking fairly quickly. What was the substance that he said he had taken?---He stated that he had taken synthetic cannabis."
[31] One of the attending police officers photographed an implement which was located in the centre console of Mr Wright's vehicle, which was identified by Constable Ledgar as a smoking pipe.
[32] Mr Wright submits that the Commission cannot be satisfied that the statement Mr Wright made to Constable Ledgar, that he had 'smoked some synthetic cannabis', was a representation that Mr Wright had consumed drugs on 27 August 2015. Mr Wright submits that the generality of what was said gives no indication of when, where or how long ago Mr Wright smoked synthetic cannabis.
[33] Mr Wright submits that further, it should not be inferred that he consumed synthetic cannabis prior to driving on 27 August 2015 from other evidence, for the following reasons:
[34] Mr Wright submits that there is no fact capable of supporting an inference of consumption on the day of the accident that overcomes the absence of direct evidence.
[35] In the alternative, Mr Wright submits that if the Commission is satisfied Mr Wright did make a relevant admission, it should disregard the statement or give no weight to it.
[36] Mr Wright further submits that the Commission must assess the reliability of what is said to have been the representation made by Mr Wright about his drug use on 27 August 2015 in the circumstances in which it was made. That is, from the standpoint of someone whose mental state was abnormal and who made the statement in the immediate aftermath of a serious car accident.
[37] Mr Wright submits that there is no reliable basis upon which to conclude that Mr Wright understood what he was being asked by Constable Ledgar, let alone to conclude that he gave a deliberate and considered response in which he intended to confess to the use of synthetic cannabis that morning before he commenced driving. It was not the Constable's evidence that Mr Wright responded to his questions as if he were consciously answering them. Despite how Mr Wright appeared to him, the Constable accepted that he had no basis to conclude that Mr Wright was as a fact: 'affected by a substance [that] caused him not to have proper control of the motor vehicle.'
[38] Mr Wright submits that acceptance of either submission above is sufficient to dispose the case in favour of Mr Wright, so it would be unnecessary for the Commission to decide whether it accepted Mr Wright's denials. However, if that were necessary, Mr Wright submits that his evidence on that subject ought to be accepted by the Commission.
[39] AGL submits that the evidence points to a finding that Mr Wright consumed synthetic cannabis on the morning of 27 August 2015. AGL submits that regard must be had to the following:
[40] AGL submits that there are no circumstances which would persuade the Commission to find Mr Wright's initial admission should not be accepted, and in those circumstances the only available finding is that Mr Wright did take synthetic cannabis on 27 August 2015.
[41] The determination of the factual dispute requires an analysis of the evidence before the Commission. Only Mr Wright knows whether he consumed synthetic cannabis prior to or during his journey. There are no other witnesses. Mr Wright's evidence is that he did not, and has not smoked synthetic cannabis for a considerable period. I am effectively required to determine whether he should be believed in the evidence he has given in this regard.
[42] A number of aspects of the evidence, and the circumstances of the evidence, suggest that Mr Wright's account should not be accepted. These include:
● His comment to Constable Ledgar that he smoked synthetic cannabis when questioned at the accident scene. Although Mr Wright was clearly dazed at the accident scene and did not readily respond to questions asked of him, when pressed for information about whether he had taken any substances for the purposes of paramedic attention, he said that he had taken synthetic cannabis. Although he says that he has no knowledge of making such a statement I find on the evidence that he did so. As he had also given his name and address and explained the working of his night shift, I find, in the context of the police questioning that his answer was referable to the immediate past. There is no cogent reason why Mr Wright would have said this if it were not true.
● The copper smoking pipe found in the vehicle's centre console at the time of the accident. A photo of the partially obscured pipe was taken by police at the accident scene. It was subsequently taken from the vehicle by Mr Wright and his relatives when they removed possessions from the car. It was not produced at the hearing. Another pipe, of a different colour and configuration was produced by Mr Wright. He said that this was a pipe used as an attachment to an air-hose to clean under his lawnmower. The smoking pipe purchased by AGL's solicitor appears identical to the one photographed by the police and identifiably different to the air hose connection produced by Mr Wright. I find on the evidence that Mr Wright had a smoking pipe of a type sold for that purpose in the centre console of his vehicle at the time of the accident.
● Observations by Constable Ledgar that Mr Wright appeared under the influence of an intoxicating substance at the accident scene. Constable Ledgar has experience in dealing with drug affected persons. The descriptions of Mr Wright's behaviour at the accident scene are not consistent with someone who has merely fallen asleep at the wheel. Either the accident itself, or something else caused him to present in a confused manner with abnormal physical symptoms. In Constable Ledgar's view, Mr Wright's physical behaviour and his condition were consistent with taking an intoxicating substance.
● Mr Wright's history of drug taking. Mr Wright had taken drugs at work in the past in order to deal with work situations. The night shift in question had involved a traumatic incident.
● In an attempt to establish that he had not taken synthetic cannabis Mr Wright did not obtain a test for the presence of this substance until 8 September 2015, well after the incident and his discharge from hospital. He was also aware of difficulties in detecting these substances.
● Mr Wright's evidence regarding the copper smoking pipe. Mr Wright's failure to produce the actual pipe, and his evidence about its nature did not appear to me to be truthful. In my view it appeared that Mr Wright was concocting a story about similar devices that was designed to limit the significance of the photo taken by the police. He subsequently told the police that when he did smoke synthetic cannabis it was "just in joints". This was not the case when he was found smoking a pipe type device at work in January 2015. The existence of a smoking pipe in the centre console would obviously have been seen as suggestive of its recent use and damaging to his denials of drug use. In my view his evidence had the appearance of an attempted cover up of the smoking pipe. His incorrect statements to the police and his interest in a finding that he did not smoke drugs undermine the credibility of his evidence on critical matters.
[43] In all of the circumstances I find that on the balance of probabilities Mr Wright smoked synthetic cannabis prior to or during his journey from work on the morning of 27 August 2015. I find that his statements to the police at the accident scene are a reliable record of the circumstances and that his denials of drug use to AGL and in his evidence before the Commission should not be accepted.
[44] Given the agreement of the parties that the determination of this issue will essentially determine the application, I proposed to issue an order dismissing Mr Wright's unfair dismissal application.
Mr M Harding of counsel, with Mr A Kentish on behalf of Mr Wright.
Mr D Williams of counsel, with Mr P Zielinski on behalf of AGL.
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Wright
AGL Loy Yang Pty Ltd [2016] FWC 1941