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Lessons from the Bench

19 August 2013

Lessons from the Bench

Erin Lynch, Senior Associate 

Private Behaviour vs Safe Working Environment

The subject of workplace drug testing is a controversial one. There are the competing arguments around whether urine testing or saliva testing is more accurate and also the line line between scrutinising employees’ private behaviour and the need for a safe working environment.

Since at least 1998 it has been accepted by industrial tribunals that drug and alcohol testing, whether it be random or targeted, is a reasonable and legitimate response to the risk to safety posed by employee drug use, even it involves some interference with employee privacy.

There is however, no agreement by the tribunals as to what the most appropriate method of drug and alcohol testing is.

In a recent decision, Briggs v AWH Pty Ltd [2013] FWCFB 3316), the Fair Work Commission Full Bench dismissed the appeal of an employee who refused to provide a urine sample for a drug test, because he argued that a saliva sample (which he was willing to give) was more appropriate.

Mr Briggs was dismissed by AWH Pty Ltd (“AWH”) for repeatedly refusing to comply with a direction to undergo a drug trust involving a urine sample. Mr Briggs’ contract of employment expressly required him to comply with AWH’s policies. In addition, Mr Briggs was given a number of opportunities to comply with the direction over a five day period and was warned about the consequences of continued non- compliance, which included dismissal.

Mr Briggs argued that there was no valid reason for his dismissal, and that his dismissal was unfair, because the direction to take the urine test, whilst lawful, was not reasonable and therefore did not require compliance.

Mr Briggs conceded that AWH could use urine testing if its policy objective was to detect drug use in order for it to be able to manage the risk of such use, rather than to test for functional impairment. Mr Briggs argued that AWH’s policy only provided for testing for impairment while at work and a urine test was not reasonable because it was not a test for impairment.

The initial decision found that:

  • Mr Briggs’ repeated refusal to comply with the direction to undertake a urine test constituted a valid reason for dismissal;
  • the direction was a lawful and reasonable one; and
  • there was no other circumstances which rendered the dismissal unfair.

On appeal, Mr Briggs’ challenged the conclusion that the direction was reasonable.

The Full Bench found that:

  • AWH’s policy was consistent with standard practice;
  • a number of AWH’s clients had imposed contractual requirements concerning drug and alcohol testing;
  • AWH had conducted a blanket urine test each year since 2006 (when the policy was introduced), except for 2011; and
  • there was no evidence that any employee other than Mr Briggs had ever complained about the mode of testing.

It was held that the direction to Mr Briggs was both lawful and reasonable. It was specifically authorised by the policy, with which Mr Briggs was contractually bound to comply, was consistent with common practice and was reasonably adapted to the nature of Mr Briggs’ employment.

Failure to exercise the requisite standard of care

In Swan v Monash Law Book Co- operative [2013] VSC 326, Ms Swan was employed as an assistant at a law book co-operative within Monash University from 2002 to October 2008. Ms Swan alleged that another permanent team member, Mr Cowell (Ms Swan’s Manager), was responsible for bullying, harassing and intimidating conduct towards her.

Psychological assessments were carried out and expert evidence given at trial. Both experts pointed to a lack of appropriate action taken by the Board of the employer, particularly after becoming aware of the issue as early as 2003. This included failing to investigate and take appropriate intervention steps/actions.

The Court accepted that the incidents described by Ms Swan had the effect of intimidating her, increasing her anxiety and causing her to moderate her own behavior. It was held that Mr Cowell did engage in workplace bullying and that it imposed substantial and significant emotional stress and distress on Ms Swan- damaging her mental health and wellbeing during her employment.

The Court held that Monash Law Book Co-operative did not exercise the standard of care reasonably expected of an employer in the circumstances. In determining the failure, the Court articulated that the following behaviour fell short of the requisite reasonable steps/behaviour:

  • failure to define relations between it and its employees, and between employees- such as through employment contacts, job descriptions and workplace behaviour policies;
  • a lack of job descriptions, contracts and policies was contributing to the issues and still they failed to implement them- this “inexcusable and unjustified conduct breached its duty of care to the Ms Swan”;
  • repeated misrepresentations to Ms Swan that the introduction of contracts, job descriptions and policies was imminent;
  • a failure to introduce defined procedures for complaints or to appropriately train employees to deal with complaints;
  • it was inappropriate to rely on employees’ responses as to what action should be taken in response to the complaint;
  • a failure to give directions to Mr Cowell as to his dealings with
    the plaintiff- which allowed his behaviour to develop and continue further;
  • a failure to follow through with an assessment of Mr Cowell that included consideration of appropriate workplace conduct;
  • failure to investigate what was occurring directly and intervene appropriately;
  • there was no formal system of enabling employees to seek the assistance of their employer when bullying occurred;
  • the Board did not arrange or conduct a risk assessment in response to the complaints;
  • there were inadequate responses to the complaints perpetuated by lack of formal policies and procedures; and
  • there were no safe return to work procedure in place.

It did not matter that in between complaints, Ms Swan did not wish to escalate her complaints further. Ms Swan agreed not to escalate in reliance on the Board’s undertaking and support at the relevant time as they told her they would implement policies etc, (which they never did).

Ms Swan was awarded $300,000 damages for pain and suffering and loss of enjoyment of life. Pecuniary loss was assessed to be $292,554.38.

A valid reason for termination but the dismissal was unfair on procedural grounds

In the recent decision of Haigh v Bradken Resources Pty Ltd (2013) FWCFB 2918, the Full Bench of the Fair Work Commission overturned a decision that a boilermaker was fairly dismissed.

Mr Haigh had been employed with Bradken Resources Pty Ltd (“Bradken”) for nine years and was involved in an incident involving cutting a large steel plate. Bradken asserted that Mr Haigh had undertaken or caused to be undertaken that function in an unsafe manner.

At first instance Commissioner Williams found that:

  • Mr Haigh’s actions in setting up the job were inconsistent with his obligations in respect to safety;
  • there was a valid reason for the dismissal;
  • Mr Haigh was notified of the reasons when Bradken was considering dismissal; and
  • Mr Haigh was given an opportunity to respond to the reasons.

On appeal, the Full Bench found that the Commissioner fell into error in finding that Mr Haigh was given an adequate opportunity to respond to the allegations regarding his conduct.

The sequence of events was as follows:

  • there was a meeting on 13 December 2011 regarding the incident;
  • at that meeting, the allegations were raised with Mr Haigh and the substance of these was explained to him;
  • Mr Haigh disputed the allegations; and
  • a show cause letter was sent to Mr Haigh.

The Full Bench held that it was clear at the meeting on 13 December 2011 that Mr Haigh disputed the allegations and he was in an agitated state. It went on to find that the show cause letter was poorly drafted and although Mr Haigh responded to the show cause letter his employment was terminated without any further discussion or involvement.

On the basis of the above sequence of events, the Full Bench decided that it did not constitute an adequate opportunity to respond given the particular circumstances. The Full Bench also decided that Mr Haigh was not given a proper explanation of what he was accused of and the accusations that were made were ambiguous.

Also relevant for the Full Bench was that Bradken had re-enacted the incident without Mr Haigh’s knowledge or involvement.

This case emphasises the need for employers to ensure that along with a valid reason for termination, there must be a procedure whereby the employee is given an adequate opportunity to respond to the allegations against him or her. Similarly, employers must ensure that they properly particularise their concerns to the employee.

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