T12603
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[1] On 10 March 2006, Glen William Pregnell (the applicant), applied to the President, pursuant to s.29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of a dispute with Supported Housing Inc. (the respondent) arising out of his alleged unfair termination of employment. [2] The matter was listed for hearing on 5 April 2006 (Conciliation Conference) and 13 April 2006 at the Commonwealth Law Courts, 39-41 Davey Street, Hobart, Tasmania. [3] The applicant commenced work as a Support Worker for respondent in July 2003. During this time the applicant had a break in service. [4] On the 28 February 2006 the applicant was suspected of being under the influence of alcohol while on duty, by the Executive Officer. The applicant denied being under the influence of alcohol. The applicant was asked, and eventually agreed, to have a breathalyser test. The test subsequently indicated the applicant had a level of alcohol in his system more than twice the accepted legal limit for driving a vehicle. The applicant was stood down on full pay. [5] During the week following 28 February 2006, meetings were held between the applicant and the Executive Officer and between the Executive Officer and members of the Board of Management. [6] On the 8 March 2006, on advice from the Board of Management, the Executive Officer notified the applicant in writing his employment had been terminated as a result of his serious misconduct. [7] No witnesses were called and both parties relied on their own and witness statements and supporting documentation. BACKGROUND [8] The respondent is a not for profit organization, primarily funded by the Department of Health and Human Services, to provide supported accommodation for people with disabilities. The applicant was employed as a Support Worker responsible for the day-to-day care of residents, including their personal needs and administration of medication and transportation. [9] As a Support Worker the applicant was also expected to deal with emergencies and tense, stressful situations, which may arise, by nature of the residents' disabilities. [10] The applicant arrived at his place of work around 11.00 am on 28 February, 2006, some four hours before he was due on duty, to discuss a rostering issue with the Executive Office, Ms McLaughlin. Ms McLaughlin, for the respondent, attested the applicant at that stage had the smell of alcohol on his breath, but as he was not on duty she did not pursue the issue. The applicant asserted Ms McLaughlin had a duty of care to challenge him knowing he was going on shift later in the day if she had a suspicion he had been drinking. [11] In a statement signed by two witnesses, Mr Garth Tew and Ms Judith Hope asserted the applicant smelt of alcohol when he came on shift at around 3.00 pm and that he had slurred his words and was unsteady on his feet. The two witnesses asserted they were so concerned they insisted on driving to pick up residents when the applicant suggested he would do the pick up. The applicant challenged the veracity of the witness statement and the witnesses' motivation in endorsing it. [12] The applicant insisted he was not scheduled to drive on that particular shift, although his own witness statement suggests he was only made aware of the need not to drive as he started his shift, through Mr Kelly. [13] The applicant challenged the validity of the statement by Ms Hope and Mr Tew because it was typed by Ms McLaughlin and countersigned by the witnesses. Ms McLaughlin attested the document had been developed by the witnesses, but acknowledged she had typed it. She also attested the statement in the form presented was more appropriate for the situation than the standard incident report. [14] A witness statement was also produced from a Mr Nathan Kelly, another co-worker. This statement asserted the applicant did not smell of alcohol when he came on shift. Mr Kelly also asserted that he informed the applicant on his arrival that Mr Tew and Ms Hope had agreed to do the client pick up therefore he was not required to drive. [15] There is obviously a contradiction between the two witness statements with regards to timing. [16] Ms McLaughlin asserted she went to the workplace to verify the applicant no longer had alcohol on his breath, as she alleged he had that morning. Ms McLaughlin did not indicate what motivated her to check up on the applicant at that particular time. [17] Ms McLaughlin asserted there was a strong smell of alcohol on the applicant's breath when she engaged him at the workplace. She subsequently challenged him regarding his condition. The applicant rejected Ms McLaughlin's assertion at the time. [18] Ms McLaughlin suggested the applicant should undergo a breathalyser test. It was not disputed that initially he refused, but after seeking advice he agreed to take the test. [19] The applicant agreed he insisted on driving himself to the breathalyser testing facility and that it took some persuasion by Ms McLaughlin for him to take a taxi. The applicant admitted to having a few beers the previous night, which he asserted might have been what Ms McLaughlin smelt on his breath in the morning. He also admitted to having a couple of beers at lunchtime, prior to starting his shift. However, he asserted that it was pickled mushrooms, which he had been eating that she could smell, not alcohol. [20] When the applicant arrived at Outcome Management, the alcohol testing facility, Mr Otto Bachinger who conducted the test asserted, in his report he could smell alcohol on the applicant's breath. The first reading from the breathalyser was 0.106 and the second 0.102 after 5 minutes. [21] The applicant disputed the accuracy of the tests and insisted on a third test. [22] In the interim the applicant asserted he ate two "lollies". [23] The third reading was 0.128. The applicant disputed the accuracy of the equipment and insisted the "lollies" he ate contributed to the high readings. [24] In a written statement, Mr O Bachinger attested that certain sweets might be alcohol based and react with alcohol already in the system. Mr Bachinger asserted, a rise in the reading after eating sweets confirmed there was the presence of alcohol in the applicant's system. [25] Ms McLaughlin asserted, the precise reading was not an issue but an indication of the degree to which the applicant was under the influence of alcohol and that he had consumed a quantity of alcohol before starting his shift. [26] The applicant asserted the breathalyser tests were not carried out correctly in that, he was not challenged as to whether he had consumed anything orally in the hour prior to the test. The respondent did not dispute this. [27] The applicant asserted he was not offered a blood test, nor did he ask for one. Ms McLaughlin alleged the applicant refused to have a blood test earlier when the breathalyser test was being discussed. The applicant alleged his earlier comment to Ms McLaughlin was that he "did not go much on needles". A file note (Exhibit R1, tab 6) from Megan Cunningham reflects Ms McLaughlin's statement. [28] After the test, the applicant informed Ms McLaughlin of the results. He was immediately stood down with pay until the matter could be resolved. She instructed him not to continue his shift, but to get a taxi home at the respondent's expense. The applicant again argued against using a taxi and insisted the test readings were wrong and that he was capable of driving. He argued further, that he required his car for early the next day. Ms McLaughlin offered to provide another taxi for the applicant, to enable him to retrieve his car the next day, he refused the offer. The applicant did take a taxi back to his place of work. He admitted he drove his car a distance to meet a friend who, he asserted drove him home. [29] On the 1 March 2006, the applicant briefly met with Ms McLaughlin. He was informed not to say anything until he was fully aware of the allegations against him. He was given a letter requesting him to attend a meeting at which he could respond to the issues raised by Ms McLaughlin. He was also given copies of the Incident Report, witness statements, breathalyser results, the relevant Occupational, Health and Safety policy and the code of conduct he had signed. [30] A meeting was scheduled for 3 March 2006, at which he was also advised to have a support person with him. It is conceded he was not informed termination of his employment might be the outcome of the meeting. [31] On 3 March 2006 the applicant requested the meeting be deferred. The applicant was asked to call on Ms McLaughlin on Monday morning 6 March 2006 to arrange to meet. The applicant failed to contact Ms McLaughlin. However, Ms McLaughlin contacted the applicant on the afternoon of 6 March 2006 and arranged to meet the following day. [32] At the meeting on 7 March 2006, the applicant denied being under the influence of alcohol on the date in question. However, his statements were somewhat contradictory regarding his consumption of alcohol and it's timing. He had no explanation for the alleged smell of alcohol on his breath earlier in the day. He denied drinking before his shift then admitted to having had drinks the night before and, to having "a couple of beers" at lunchtime on 28 February 2006. The applicant informed Ms McLaughlin he had been given advice on the inappropriateness of the breathalyser test process and the possible adverse effect on the test results of his eating "lollies". [33] The applicant was informed the matter and his response would be presented to the Board of Management for consideration and that he would be given an answer within 24 hours. A letter of termination was delivered to the applicant on 8 March 2006 by taxi. (Exhibit R1, tab 11) [34] In contesting the breathalyser results, the applicant produced a copy of a statement that had been produced in his own words, but signed by Mr Halley a chemist, and certified by a Justice of the Peace, supporting his argument (Exhibit A1). The statement also attributed supportive comments to a Constable Lovell of Bellerive Police Station; although not endorsed in writing by the constable. [35] Ms McLaughlin asserted she had spoken to Mr Halley, who responded he would have to test the "lollies" to ascertain their effect before making a statement. She sought to speak to Constable Lovell, who was not available, but spoke to one of his colleagues. She asserted the police officer treated her proposition, that "lollies" could adversely influence breathalyser test results, with a degree of mirth. [36] In her written Incident Report (Exhibit R1, tab5), from which she read, Ms McLaughlin asserted the applicant had expressed his frustration at "that this was continually happening to him across his employment and people were always saying he was drinking". Ms McLaughlin confronted the applicant as to whether he had a drinking problem. He denied this. The applicant did not dispute Ms McLaughlin's recollection of the conversation. [37] Ms McLaughlin indicated the respondent's specific requirements of the conduct expected of a person in the applicant's role and which were known to him. [38] From the Code of Conduct (Exhibit R1, tab 2):
[39] From the Occupational Health and Safety Manual (Exhibit R1, tab 3):
[40] And further:
[41] The applicant confirmed he was aware of the requirements. [42] The Disciplinary Procedures (Exhibit R1, tab 4), at Step 4 under the heading of Termination of Employment, it states:
[43] It was conceded by Ms McLaughlin that the latter part of the procedure was not followed. However, she cited a statement from the applicant's original written response to the allegations that he was fully aware of the consequence of misconduct. [44] Ms McLaughlin stated with reference to the applicants service:
[45] And further:
[46] Also at Step 4, under the heading of Misconduct, at paragraph three it states:
[47] The applicant asserted, in response to the allegations put to him:
[48] The applicant alleged he was erroneously accused of being under the influence of alcohol while on duty on 28 February 2006. He also alleged he had been eating quantities of pickled mushrooms which may have made his breath smell like alcohol while on shift. He further alleged, the "lollies" which he had been eating were alcohol based and therefore caused the excessive reading on the breathalyser test. He produced no evidence that the "lollies" he allegedly ate were alcohol based. Nor did he indicate any health warning on the packet that may have indicated that excessive consumption of such "lollies" could impair one's driving. FINDINGS [49] As an employer, the respondent has a duty to ensure a safe working environment. Ms McLaughlin was fair and reasonable in her handling of the situation on 28 March 2006 in the execution of that duty. [50] The applicant asserted, Ms McLaughlin had a responsibility to censure him when she suspected, in the morning of the 28 February 2006, he had alcohol on his breath, even though he was not yet on duty. As there were some four hours before the applicant was due on duty, I do not accept Ms McLaughlin had any responsibility towards the applicant at that juncture. [51] The workplace policy is very clear regarding the requirement to have no alcohol in ones system when in charge of a vehicle of the respondent, a fact with which the applicant was familiar. From evidence the applicant, contrary to his assertion, could not have been aware he was not required to be in charge of a vehicle on the afternoon of 28 February 2006 until he arrived at his workplace to commence work, after he had been drinking. Indeed, by nature of his role, it is not unreasonable to assume that at any time during his shift the applicant may have been required to drive a vehicle. [52] Despite being aware of the various policies regarding being under the influence of alcohol at work, the applicant admitted he consumed alcohol before starting his shift. [53] The applicant's assertion that, allegedly consuming "lollies" would somehow have a material effect on the breathalyser test result I find unrealistic. I do accept the test procedures may not have been conducted as rigorously as they could, and may have impacted on the precision of the result. Had the results been borderline this may have been a significant issue. However, the breathalyser test results indicated a level of alcohol consumption considerably in excess of the legal limit for driving a vehicle some five hours after the applicant asserted he drank two beers. [54] I find the applicant's insistence on driving, despite allegations of being under the influence of alcohol and showing a high alcohol reading from the breathalyser test, and despite being offered taxis, as markedly irresponsible under the circumstances. [55] The applicant's continual denial that he was not under the influence of alcohol, despite the range of evidence against him, left the prospect of successful counselling considerably wanting. [56] From the evidence, Ms McLaughlin, in the main, followed the disputes procedure. However, she admits not informing the applicant that the outcome of the meeting on 7 March 2006 had the potential to recommend his termination. I am of the belief the applicant was fully aware of the consequences of being found to be under the influence of alcohol at work and Ms McLaughlin's omission had no effect on the fairness of the process. [57] I find the respondent did not unfairly dismiss the applicant. [58] The application is dismissed. James P McAlpine Appearances: Date and place of hearing: |