Bill Fitzgerald

AMMA principal employee relations consultant Bill FitzGerald provides his take on a Fair Work Commission ruling which found there was a parallel right to take summary dismissal action in the event that employees provide untruthful or misleading responses as part of a workplace investigation.

IN recent weeks, the Fair Work Commission upheld the summary dismissal of a mineworker because of his dishonesty in response to a positive test result for methamphetamines.

The operator, working at Anglo Coal’s Drayton mine site in the Hunter Valley, tested positive to methamphetamines in a random drug and alcohol test.

The operator maintained that he had only taken cold and flu tablets prior to the screening, but after pathology confirmatory test, he admitted that he had taken an unknown substance at a party on the previous weekend.

As drug and alcohol screening continues to pose significant challenges to resource industry employers, this particular decision provides a better scope of employer rights when considering outcomes for employees found to be intoxicated while working.

In this case, the operator was dismissed not for failing the test but for providing dishonest responses during the investigation. He effectively lied by saying he only took cold and flu tablets when he knew that he had likely taken a prohibited substance. This was a misleading and untruthful response.

In his unfair dismissal action, the operator argued that he should have been given a warning in response to the failed drug test rather than dismissed because the company’s drug and alcohol policies did not “provide for dismissal for a ‘first fail'”.

However, Deputy President Jeff Lawrence said the fact that the company’s disciplinary policy had a warning as a first step did not preclude a parallel right to summary dismissal where an employee lies during an investigation.

The obligation to answer questions during an investigation exists independently of the right to discipline because of the drug breach and employers are not constrained to the circumstances relating to the investigation.

The dismissal letter said that the operator’s response had “destroyed the relationship of trust and confidence between the company and yourself”.

“The application of the policy does not mean that Company was not entitled to investigate what happened and seek an explanation from the employee,” Deputy President Lawrence said.

He said the company was also “obliged to place an emphasis on health and safety protection in the context of the coal mining industry”.

Deputy President Lawrence said the company had acted appropriately in dismissing the operator after the employee failed to be “open and honest in his explanation, although he was given a number of opportunities to tell the truth”.

The operator’s “failing to declare, represented a serious breach of the relationship of trust and confidence and justified summary dismissal”.

AMMA strongly advises that investigations should be carefully prepared with pro forma questions and the accurate recording of responses before any consideration of the appropriate disciplinary action.

One of the mandatory questions for any investigation should be: “Do you acknowledge that you are legally obliged to provide accurate and truthful responses to our questions and, in the event we subsequently discover that you have breached this condition, appropriate disciplinary action including termination of employment will be taken?”

This is a significant decision for AMMA members and reinforces the advice which AMMA provides through the network of consultants in each of the States. To contact your local AMMA employee relations consultant, click here.

AMMA can also assist with workplace investigations as a third party investigator and provides practical own to earth training for Managers and Supervisors in this area. Call AMMA Training and Development on 1800 891 662for more information.