Unfair dismissal recently at the FWC

On 10 January 2017 an unfair dismissal hearing at the FWC in Melbourne upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite the arguments that the employee was denied procedural fairness.

In Albert v Alice Springs Town Council, Commissioner Wilson found that the employee was fairly dismissed after having failed the drug test despite the employer not providing Mr Albert with the opportunity to respond to the drug test results.

The Commissioner’s held that the employee’s misconduct outweighed any procedural faults in his dismissal , in addition that it wasn’t obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July 2016, Mr Albert was involved in a motor vehicle accident while driving a council truck, he was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.

The extremely high reading led the Council to summarily dismiss Mr Albert cited that his behaviour was serious misconduct in that it represented a danger to himself, other workers and the public.

Mr Albert filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker. Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Lesson for employers

In most cases in relation to unfair dismissal, failure to afford procedural fairness before dismissing an employee will, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.

In very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, it is recommend that you still ensure that you provide procedural fairness and save yourself the argument later.

Have a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result

Full decision – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc73.htm.

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This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.

Unfair dismissal

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