The relationship of trust and confidence is a fundamental to the employment relationship.
A recent case before the Fair Work Commission[1] has again demonstrated the ‘stand alone’ destructive impact of dishonest responses during a workplace investigation to an employment relationship.
The Facts
A Hunter Valley mining worker since November 2008, this employee was subject to random drug and alcohol screening on a regular basis.
On 5 April 2013, the employee was screened and also required to fill in a form asking if he had taken any prescription/non-prescription drugs in the last 2-3 weeks.
The employee only revealed his recent consumption of cold and flu tablets.
The results of the screening process came back positive for methamphetamine and were then sent to a lab for further pathology tests which confirmed the positive result.
On 11 April, the employee was required to attend a meeting with management and was given a second opportunity to reveal any drug use in the last 2-3 weeks.
Again, the employee insisted on only having consumed cold and flu tablets until presented with the positive pathology report.
The employee then admitted to consuming an unknown substance at a party the previous weekend.
On 16 April, the employee was presented with a show cause letter and asked to attend a meeting on 26 April to:
“show cause as to why your employment should not be terminated for returning a positive test… and for your dishonesty in responding to queries about what drugs you have consumed”
Following the 26 April meeting, the employee was dismissed on April 30 for dishonesty during the employer’s workplace investigation.
The employee disputed this outcome and filed an unfair dismissal claim with the FWC.
Arguments before the FWC
The employee claimed that he was dismissed for failing a drug test and argued his dismissal was unfair on the following grounds he:
- Complied with taking the test
- Should have been given a warning instead for being in breach of company policy, instead of being dismissed
- Had no prior behavioural history
- Was not given adequate opportunity to respond to the failed drug test
- Was not given access to the test results
- Admitted to taking the drug
- Was suffering from personal stresses at the time
The employer maintained that the reason for the employee’s dismissal was actual dishonesty during it’s workplace investigation (not for failing the drug test). It argued that the dismissal was fair as the employee:
- Was dishonest on a number of occasions
- Did not take responsibility or show remorse when finally admitting to the drug use
- Withheld information during the investigation leading to the destruction of the relationship of trust and confidence between the employer and its employee
The Decision
As we have previously highlighted, the FWC has consistently warned employees about the destructive impact of dishonest responses during a workplace investigation to their ongoing employment.
The outcome of this case is no exception.
Notwithstanding the failed drug test, the FWC considered the employer was within its rights to terminate the employee’s work for the multiple instances of dishonesty during the workplace investigation into the drug test.
As to whether the dismissal was harsh, unjust or unreasonable, the FWC was required to consider a number of other factors.
While the employer’s workplace policy did set out steps to deal with positive test results – including a protocol for issuing a warning, the failed test was not the reason for the employee’s dismissal.
Further, even if it had been the actual reason, the policy “maintained a parallel right to summary dismissal”.
The employee was afforded necessary procedural fairness.
He was clearly notified of the reason for his dismissal and had be provided more than one opportunity to respond to the allegations against him.
The employee had his union’s representatives present at each of his meetings with his employer and, while his personal difficulties and good working record were taken into account when making the dismissal decision, they did not render his dismissal harsh.
Overall, the FWC agreed that the employee had been fairly dismissed due to the destructive nature of the employee’s dishonesty on the essential relationship of trust and confidence.
Lessons for Employers
When undertaking a workplace investigation, employers should be mindful that not all wrongdoers will immediately accept responsibility for their actions.
Prudent employers must understand the key elements of workplace investigations, including interviewing alleged wrongdoers, so that they know how to effectively deal with evasive or dishonest responses by employees.
In the profiled dismissal case, whether the employee’s positive drug test was justification for dismissal action became moot as ultimately his dishonest responses over the test results created a ‘stand alone’ valid reason for his summary dismissal.
Thanks to the employer’s rigorous and methodical workplace investigation, the dismissal was not considered harsh, unjust or unreasonable.
[1] Stephen Vaughan v Anglo Coal (Drayton Management) Pty Ltd [2013] FWC 10101 (24 December 2013)
