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TASMANIAN INDUSTRIAL COMMISSION
Industrial Relations Act 1984
s.29 application for hearing of an industrial dispute
The AWU-FIME Amalgamated Union,
Tasmania Branch
(T.5464 of 1995)
and
Tasmanian Electro Metallurgical Co. Pty Ltd (BHP)
| COMMISSIONER R J WATLING |
HOBART, 16 June 1995 |
Industrial dispute - alleged unfair dismissal of two employees
REASONS FOR DECISION
This application was lodged by the AWU-FIME Amalgamated Union, Tasmania Branch (the union) pursuant to section 29 of the Act for the purpose of having the Commission review the alleged unfair dismissal of two employees from their employment with the Tasmanian Electro Metallurgical Co. Pty Ltd (BHP) (the respondent). The union claimed that two employees, Allan E Youl - (hereinafter known as employee Y) and Andrew King (hereinafter known as employee K), should be reinstated to their original positions because the dismissals were harsh, unjust and unreasonable.
Both employees were dismissed by the respondent on 6 April 1995 with four weeks' pay in lieu of notice, for the reason that on 5 April 1995 they were engaged in serious misconduct whilst they were paid to undertake their normal duties in that they were:
1. In possession of an illegal and prohibited substance;
2. Consuming a prohibited and intoxicating substance;
3. Aware that the possession and consumption of illegal and prohibited substance whilst on duty was against the company's policy;
4. Aware of the seriousness with which the company viewed such a situation and the likely consequences if the policy was breached.
The illegal substance referred to was marijuana.
Whilst a single application was lodged with the Commission, nevertheless the hearing was conducted in such a way that each termination of the contract of employment was considered a separate case.
Whilst each will be dealt with on merit in this decision, I see no useful purpose being served by repeating the agreed facts (Exhibits K3 and G6) which relate to both cases. Those facts can be summarised as follows:
Agreed facts:
1. On 5 April 1995 employees Y and K were having a cigarette on a small landing attached to the outside of the building in which they were working.
2. Mr S Pragnell (the Production Supervisor) whilst doing his rounds and after noticing the two employees from his team on the landing, decided he would join them for a cigarette.
3. When he reached the landing the Production Supervisor smelt a rather strong aroma of marijuana and challenged Y and K by saying, "What the hell are you doing smoking that crap!", or words to that effect.
4. The Production Supervisor witnessed Y smoking but not K. Nevertheless he asked K whether or not one or both were smoking? To which he responded, "The two of us".
5. The Production Supervisor advised Y and K to go to the crib room and not to touch any plant or equipment. He also advised them he would be contacting their union representatives.
6. Y and K were also instructed to wait in the crib room until the senior union delegate arrived.
7. When the senior delegate arrived the Production Supervisor told him that he had caught the two employees smoking what he (the Production Supervisor) believed to be marijuana.
8. A meeting ensued with the Production Supervisor, the senior union delegate, two other union delegates and employee Y and K. This meeting was later adjourned to the Manager Operations' office.
9. At that meeting there were three management representatives and three union representatives (Y and K were not present). and they attempted to explore all the issues surrounding the incident. The senior union delegate asked about the seriousness of the accusations and was told by the Manager Operations that they were serious and if they were substantiated they would be considered serious misconduct and treated accordingly. The senior union delegate suggested that a final warning and a drug rehabilitation program be the appropriate course of action. The Manager Operations stated that this would be the minimum penalty depending on the outcome of a full investigation and that in the meantime Y and K would be suspended with pay until final investigation was completed.
10. At this stage Y and K were invited into the manager Operations' office, along with another union delegate. The Manager Operations expressed his concern that it appeared that Y and K had been smoking marijuana at work and they were asked whether they had anything to say at that stage. Neither wished to make a comment. The Manager Operations stated that it was a very serious matter and asked Y and K whether they were aware of the company's policy. Both indicated they understood but the senior union delegate said that the issue may be in contention.
11. The Manager Operations then asked the Production Supervisor to outline the events that had occurred and they were recorded by the Manager Operations and read back to all present.
12. The senior union delegate asked the Production Supervisor how did he know they were smoking marijuana. He replied that he could recognise the smell and that he and a metallurgist had recovered the butts.
13. The senior union delegated asked to see them and he and another union delegate examined the butts, smelt them and agreed that they contained marijuana.
14. The Manager Operations asked Y and K if they agreed with the account of events and both agreed.
15. Y and K were asked if they wished to add anything to the record of events or wanted to change anything contained therein and both agreed that the notes were a true account of the events and they did not want to make any changes.
16. The Manager Operations then asked Y and K if they would sign the account as a true record of events. On the advice of the senior union delegate Y and K declined and the senior union delegate suggested that they would sign a typed copy of the report the following day.
17. The Manager Operations asked Y and K where they got the marijuana - K replied that he had found it in the bottom of his bag and the Manager Operations replied that it was a real concern that they were carrying marijuana on site.
18. The senior union delegate asked to leave the room, along with other union delegates and Y and K. When the senior union delegate returned he requested that an immediate decision be made as to the penalty to be imposed on Y and K. The Manager Operations advised that no decision would be made until the Manager had been contacted.
19. The Manager Operations replied that although the facts of the incident were not in dispute, more complete information was required before making a final decision and that a meeting would be held at 2 p.m. on Thursday, 6 April 1995, at which time a thorough investigation of all the circumstances would be completed. Y and K were asked to return to the meeting whereupon the Manager Operations advised them that due to their serious misconduct they were suspended from work with pay until Thursday, 6 April 1995, when they would be required to attend a meeting in the Personnel Office to hear the outcome of a full investigation into the serious breach of company policy.
20. Both Y and K were offered a taxi to transport them home and to return to TEMCO the following day. The Manager Operations advised he had a "duty of care" responsibility and it was agreed that the acceptance of the transportation home did not prejudice any rights of Y and K.
21. On Thursday, 6 April 1995, a meeting was held in the office of the Manager, Human Resources. Present at the meeting were the Manager Operations, the Manager Human Resources, the Production Supervisor and Acting Production Superintendent, the senior union delegate and three other union delegates.
22. In the presence of those people the Production Supervisor interviewed employee Y and K separately.
The same questions were put to each employee and the questions and their response is as follows:
Response: Employee Y: "Yes".
Employee K: "Yes".
The Production Supervisor then reviewed with each employee the events of the previous day and indicated to then that they should fell free to interrupt if anything he said was not correct. Neither employee interrupted nor corrected the Production Supervisor.
The Production Supervisor went on to ask further questions of the employees:
Question: "Do you have any further comments or explanation to make to us about what happened yesterday?"
Response: Employee Y: "It is not as if I have smoked every day at work. It was just the spur of the moment."
Employee K: "No."
Employee K: "I don't know. I just found some in my bag."
Employee K: "No."
23. The management team then said they would like to take a short break in proceedings to consider what had been said. The meeting resumed some 20 minutes later and again each employee was spoken to separately and the following statement was read to each employee by the Production Supervisor.
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We have fully investigated all the circumstances surrounding your serious misconduct. We have given you an opportunity to provide an explanation in the presence of your union delegates.
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You have admitted to consuming an intoxicating substance while at work.
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You have engaged in an illegal act on the company's property when you were being paid to carry out work as a TEMCO employee.
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The consumption of an intoxicating substance or being under the influence of an intoxicating substance is a breach of company policy. This policy has been clearly brought to your attention, and you signed a document when you commenced employment with us which indicated that you understood this and further understood the consequences of breaching this policy.
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Most importantly, using an intoxicating substance at work places you and other employees at risk of injury.
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The company believes you have breached your contract of employment with us and as a consequence of the seriousness of your misconduct your employment with TEMCO is terminated effective from today, 6 April 1995.
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We have a case to dismiss you summarily which means payment stops from the moment we discover the problem. However, we have decided to make a payment of four weeks in lieu of notice.
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You have the right to appeal this decision under section 170 of the Australian Industrial Relations Act even though you are covered by a State Award.
- The Production Supervisor then asked the employees whether they had any response to this action.
Response: Employee Y: "A lot of worse things have happened here than this. If you had called the police I would have only got a $40 fine."
Employee K "I have nothing to say."
Analysis
During the course of the hearing Exhibit K.11 was tendered. This was a "Certificate of Analysis" from the Government Analyst Laboratory, which in part stated:
"The two cigarette butts submitted for analysis were found to contain a mixture of tobacco and cannabis.
Note Cannabis was identified by the presence of delta-9-tetrahydrocannabinol, its principal active constituent.
A. C. Stumpers
Forensic Scientist
10 May 1995"
I am prepared to accept that the butts discovered by the Production Supervisor and Metallurgist were the ones forwarded to the Government Analyst.
This analysis, which was obtained after Y and K were dismissed, nevertheless confirmed the view of management, the Production Supervisor and the union delegates who examined the butts.
Company Policy
When Y and K joined the company they received a copy of the company's handbook, titled "Welcome to ... TEMCO, General Conditions of Employment". They signed a document stating they understood that non compliance with those instructions could lead to instant dismissal. The policy document, under the heading "Personal Conduct", states the following:
"Loafing, leaving the job, smoking in prohibitive areas, having or consuming intoxicants on the Works, being under the influence of alcohol, refusal of duty, wilful disregard of instruction, physical violence or the use of abusive language, fighting and stealing are all considered serious offences which will result in disciplinary action being taken up to and including dismissal."
Production Supervisor - Evidence
Mr S Pragnell, the Production Supervisor, gave evidence during that part of the case which dealt with the dismissal of Y. However, the respondent requested the Commission to adopt the same evidence when dealing with the dismissal of K. I agreed then and I do now with that request.
Mr Pragnell's evidence supported the agreed facts previously mentioned and I do not intend revisiting those issues. He did, however, elaborate on a number of points and they can be summarised as follows:
1. When he went to the landing he smelt a strong aroma of marijuana. At that time Y was exhaling smoke and he dropped the "rollie butt" he was smoking over the side of the landing.
2. In answer to the question "How are you qualified to say that it smelt like marijuana?", Mr Pragnell stated that it was through his earlier training in the RAAF where he and other recruits were taught to identify the smell with the aid of a "smoking machine".
He maintained it was a very distinctive smell and that it could not have been mistaken for any other form of aromatic tobacco.
3. Whilst only witnessing Y smoking, nevertheless after being challenged, K admitted that both Y and K were smoking. At this stage Mr Pragnell assumed that both had been smoking the one cigarette.
4. After escorting Y and K to the crib room and making the necessary arrangements to get the union representatives to the crib room, Mr Pragnell spoke with the Manager Human Resources and the Acting Production Superintendent. After that discussion had occurred, Mr Pragnell invited Rosalind Shaw (Metallurgist) to accompany him to "look for the joint".
On going around the back of the building he found a fresh rollie butt and no sooner had he found that butt when Rosalind Shaw found another. He said he smelt them and believed them to contain marijuana, and then he placed them in the outer wrapper of his own cigarette pack and returned to the building.
Mr Pragnell stated that they were the only non tailor-made butts in the vicinity and they were laying on top of the dark coloured product which was on the ground, directly beneath the landing. He was convinced they had not been there long because they were perfectly clean. He said if they were not fresh they would have been covered in dust and taken on a totally different appearance.
5. Mr Pragnell said that neither Y nor K nor any union representative:
(a) questioned that the butts recovered contained anything other than marijuana; or
(b) refuted that Y and K were smoking marijuana.
He said Y and K agreed they were smoking marijuana.
I found Mr Pragnell to be a reliable witness and his evidence was clear and succinct.
Y's Evidence
Many of the issues covered in Y's evidence were dealt with under the heading of "Agreed Facts", and I now wish to examine these additional matters.
Y was a production operator employed by the respondent for nearly 9 years. From the beginning of this incident he was represented by the union delegates on site. With Y's approval they represented him in discussions with management and were present during the meetings held on 5 April 1995 in the office of the Manager Operations, and on 6 April 1995 in the office of the Manager Human Resources.
Y indicated that, as he was being represented by the union and on their advice, he personally said very little during the course of the numerous discussions. However, he did accept that he was asked to explain his actions before he was terminated. He said that whilst he did not view the cigarette recovered by the Production Supervisor and the Metallurgist, nevertheless his representatives had looked at them and said they believed them to contain marijuana.
Y confirmed that he and K were approached by the Production Supervisor who asked them what were they "doing smoking that shit!", and that he (the Production Supervisor) asked K whether both Y and K were smoking. K answered in the affirmative. However Y maintained during the course of his evidence that the smoke that he had did not affect him and as far as he was concerned that it did not contain marijuana. He went on to say that he was of the view that he was smoking "rank tobacco" and that he did not admit or deny smoking marijuana when questioned by the Production Supervisor.
Y said that he knew drinking alcohol and smoking marijuana was not allowed at work, but denied he had ever seen or received a copy of the company's policy. He later withdrew from that position after shown documentation during the course of cross-examination.
Y stated that when K offered him a cigarette he said that he [K] thought "it might have been marijuana but was not at all sure ..." On that basis Y was still prepared to smoke it.
In answer to a question from the Bench:
Commissioner: "Did you have some inkling that it may have been something different to a normal tailor-made cigarette?"
Y's response: "I might - yes - I might have thought it was marijuana but when I had it ... I am pretty sure it was not marijuana because it ...did not affect me ... It was no worse than rank tobacco ..."
Y advised that when answering questions put to him by the Production Supervisor about why he was smoking marijuana at work (to which he responded "I was offered a little one and said yes. I know it was the wrong thing to do"), he said that he may have misunderstood the question and thought that he was being questioned about smoking cigarette tobacco.
Y said he never denied consuming an intoxicating substance at work because he thought he was going to get a rehabilitation program and a first and final warning.
I have some difficulties with the evidence given by Y. He was an unimpressive witness, less than precise, and had many lapses of memory on a number of important questions. His evidence in part even differed from the agreed facts earlier mentioned.
K's evidence
It is not my intention to transcribe K's evidence in great detail as it was very consistent with the agreed facts mentioned earlier in this decision. Therefore I will confine my comments to additional material.
As a result of being represented by the union delegates on site, K did not actively participate in discussions with management, although he did answer questions directed to him in explanation of his actions. K expected the company to deal with him through his representatives and he acknowledged that he was satisfied with the accuracy of comments or admissions made on his behalf.
At no stage during any meetings with management did he or his representatives deny smoking marijuana on the job, nor were any mitigating circumstances presented.
In his evidence K stated that he was running low on cigarettes and took a few ready rolled cigarettes from his bag. He said he did not know they contained marijuana and thought it was just normal tobacco. He then went out on the landing with Y and when he started smoking the cigarette he realised it was not a normal cigarette and after "two or three drags" disposed of it over the side of the landing. He said that he was in no way affected by it and he disposed of it as soon as he recognised it was not an ordinary cigarette.
K said that just after he had disposed of his cigarette he was about to ask Y if he thought there was something wrong with his cigarette when the Production Supervisor walked over and accused them of smoking marijuana.
K recognised that he was given an opportunity to respond to allegations put to him but he made up his mind not to say anything as he felt there was going to be a hearing in the Industrial Commission. K maintained there was no dispute prior to his termination that the rolly butts found by the Production Supervisor and the Metallurgist belonged to any other person.
Under cross-examination from Mr Knott, representing the respondent, the following exchange took place:
Mr Knott: Based on the fact that you were given an opportunity to explain why you were smoking the substance, the fact that marijuana butts had been examined by your job representatives, do you believe it was reasonably open to the employer to deduce you had been smoking marijuana on the job? Do you believe that the employer's view that you had been smoking marijuana on the job was reasonable, given the evidence?
K's reponse: Yes.
K acknowledged that the responses he gave to questions listed in the agreed facts contained earlier in this decision represented an accurate record of what took place.
K said that he was aware that his representatives had requested a decision from the company in relation to this matter on 5 April 1995 and that he was advised of the allegations made against him on 5 and 6 April 1995. He also acknowledged that he was aware that the company's position on this matter was that his employment was terminated for smoking an intoxicating substance on the job and that previous incidents on the job were not taken into account.
Other Issues
During the hearing the following issues were canvassed by the parties:
1. The respondent's occupational health and safety policy, including:
(a) the prevention of accidents and injuries;
(b) the individual employee's responsibility for his or her own and other employees' safety;
(c) the safe conduct of operations as a condition of employment.
2. Y's past medical history.
3. K's previous industrial accident.
4. The Mines Inspection Act (Part IV Section 48(3)).
Findings
I wish to emphasize that whilst this single decision deals with the dismissal of employees Y and K, nevertheless I have, when arriving at my conclusion, examined their evidence as if they were the subject of two separate applications.
Mr Glisson of the union, for the two employees, requested the Commission to reinstate Y and K to their original positions as their dismissal was harsh, unjust and unreasonable.
Mr Knott stated that the respondent would not accept under any circumstances the consumption of intoxicants of any type on the job. He said the employees were fully aware of the company's policy and that policy was very much linked to occupational health and safety.
I accept the consumption of intoxicants on a complex work-site like TEMCO has the potential to cause accidents leading to injury, not only to the consumer of the intoxicant, but also to other employees. To that extent I can understand the need for the respondent to develop an appropriate policy and require its strict observance as his "duty of care".
From the evidence I am satisfied that the two employees, being the subject of this application:
(i) were fully aware of the respondent's policy, and
(ii) did, whilst on duty on 5 April 1995, consume a prohibited and intoxicating substance.
In these matters it is not the role of the Commission to impose its view over and above that of management unless it can be clearly established by the applicant that the dismissals were harsh, unjust or unreasonable, or there was some denial of natural justice or what is commonly known as a denial of "procedural fairness" or "industrial fair play".
Turning now to the procedural aspect of the case, I am satisfied that, before making any decision to terminate the employment of Y and K, the respondent:
(a) conducted an investigation to a standard that I found to be reasonable in the circumstances;
(b) explained to the employees in a clear and simple manner the issues surrounding the then alleged misconduct and what was being said against them;
(c) assisted and encouraged Y and K to be represented by their union officials during all meetings with management;
(d) gave Y and K and their union representatives an adequate opportunity to:
In my view Y and K have received "procedural fairness" and the respondent acted reasonably.
For all the foregoing reasons the Commission is not prepared to intervene in this matter.
R J Watling
COMMISSIONER
Appearances:
Mr J Glisson and Mr D Booker for the AWU-FIME Amalgamated Union, Tasmania Branch
Mr S Knott and Ms L van Jager for the Tasmanian Metallurgical Co. Pty Ltd (BHP)
Date and place of hearing:
1995
May 1, 2
Launceston
May 25
Hobart | 
