Industrial Relations Commission of New South Wales CITATION: TWU o/b Ferguson v Linfox [2004] NSWIRComm 1116 APPLICANT PARTIES: Mr David Ferguson RESPONDENT Linfox Australia Pty Ltd FILE NUMBER: IRC 3459 of 2004 CORAM: McLeay C CATCHWORDS: Termination of empoyment - unfair dismissal - truck driver - questioned use of illegal substances - erratic behaviour - safety of road users - decision to dismiss open to respondent - application dismissed. LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983 CASES CITED: Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm87 HEARING DATES: 10/22/2004 DECISION DATE: 11/16/2004 APPLICANT Mr P Cook REPRESENTATIVES: RESPONDENT Mr P Smith DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 16 November 2004 Matter No IRC 3459 of 2004 Transport Workers Union of New South Wales on behalf of David Ferguson and Linfox Australia Pty Ltd Application by Transport Workers Union of New South Wales (on behalf of its member David Ferguson) re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 1116 1 This is an application by Transport Workers Union of New South Wales ("the union") on behalf of David Ferguson for unfair dismissal against Linfox Australia Pty Ltd pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). Mr Ferguson was dismissed from the position of truck driver on 25 May 2004, having been employed as a driver with the respondent since November 1998. 2 The matter was set down for conciliation and directions on 9 July and 6 August. When the matter was not resolved by conciliation, directions were issued regarding the filing and serving of witness statements. The matter was listed for hearing on 22 October 2004. 3 At the hearing, Mr P Cook appeared for the union on behalf of Mr Ferguson who was called as a witness. The respondent was represented by Mr P Smith, Regional Manager Workplace Relations, who called evidence from Mr George Fisher and Mr Andrew Gissing, employees of the respondent. THE EVIDENCE 4 On 17 May 2004 Mr Gissing, the NSW Operations Manager, Retail Division, for Coles Myer based at Smeaton Grange, was approached by the Occupational Health and Safety ("OHS") Committee representative Mr Stutzle regarding Mr Ferguson and his ongoing concerns that he was being followed. Mr Gissing's evidence was that he was told that several people were concerned that Mr Ferguson was "on something that may not be a legal substance". At this stage Mr Gissing did not know Mr Ferguson, having been on site only two to three weeks following a transfer from Melbourne. Mr Gissing reported the matter to Mr Fisher, the applicant's supervisor. 5 When Mr Ferguson returned from his run that day, a meeting was held with him. Present at the meeting were Mr Fisher, Mr Gissing and Mr Stutzle. Mr Ferguson was asked why he took 14 hours to complete the run which normally took nine to ten hours. He reported that he had been followed by cars and reported the matter to the police in Orange. Mr Ferguson appeared agitated, distracted and lacking in concentration. He said that people followed him all the time and called him on his CB radio to tell him they are following him. Mr Fisher's enquiries to Orange police revealed that no report had been made of an interview, complaint or other contact with Mr Ferguson. 6 Mr Ferguson said at the meeting that Wilson's Security had followed him. He had earlier been told that some trucks, including his, would be followed because of missing stock. Subsequent enquiries by a company representative revealed that Wilson's Security had not provided surveillance for Mr Ferguson. 7 At the meeting, Mr Ferguson had said that he felt anxious when driving, because of being followed. He was concerned for the safety of other road users. In evidence, he said that he had previously reported being followed to a manager, Mr Wilson, as he had been followed over a period of some months. At the meeting, Mr Fisher told Mr Ferguson that he had been informed of the allegations of being followed and had advised Linfox, Alliance and Coles Myer of the allegations. It had not been found that any vehicle was following Mr Ferguson. Mr Ferguson admitted the use of recreational drugs in the past, but said since he only worked nine to ten hours shifts there was no longer a need for him to do so. In evidence, Mr Ferguson said he had not taken recreational drugs for over eight years. 8 Because of his levels of anxiety, Mr Ferguson was suspended from duty to have a full medical examination "as soon as possible". The evidence was inconclusive as to whether Mr Ferguson was told that this would include a drug test. An appointment was arranged for the next day. Mr Ferguson agreed to go but then did not attend. In evidence, he said he fell asleep at home, having taken an overdose of Sudafed tablets for relief from flu-like symptoms. A second appointment was arranged for the following day and a lift was provided for Mr Ferguson, to and from the doctor. The subsequent pathology report showed that amphetamine and methamphetamine were detected. 9 At a meeting on 25 May, Mr Ferguson was given the opportunity to respond or to explain the medical findings. His response was silence. His union representative was afforded the opportunity to seek telephone advice, for which the meeting was adjourned. Mr Ferguson was informed that his job was in jeopardy; still he offered no satisfactory responses or reasons for his behaviour or for the results of the medical testing. The possibility of prescription drugs or over-the-counter drugs affecting the outcome of the urine test was not raised at the interview. 10 Referring to the company's responsibilities for safety of its own workforce and the general public in terms of duty of care and OHS responsibilities, Mr Gissing said he had no alternative but to terminate Mr Ferguson's employment. Mr Gissing himself has had 19 years experience in the transport industry and was aware of the history of drug use in the transport industry. He said that the respondent saw cleaning up the industry as being high on its agenda. Mr Fisher, with 30 years experience in the transport industry, described the respondent's policies as "very strict and very clear". 11 Mr Ferguson was questioned during cross-examination on his understanding of various aspects of the Linfox - TWU (Coles Myer Logistics Smeaton Grange) Enterprise Agreement 2003. He agreed he had been inducted when he commenced work at Smeaton Grange and said he did not receive any ongoing training because he had not needed any. He agreed that safety issues were highlighted in the agreement, and that an employee's employment may be terminated for serious misconduct, including illicit drug use. THE CASE FOR THE APPLICANT 12 Mr Cook submitted that Mr Ferguson had an impeccable record with no warnings issued to him over the six years of his employment. He was conscious of the respondent's Drug and Alcohol policies and concerned for the well-being of road users. This was the reason he had called to inform the respondent that he was being followed. 13 The company did not follow proper procedure, said Mr Cook. Mr Ferguson was not working on the day of the drug testing, or the day before. No blood test was required to determine the level of the drug. A urine test simply detects presence, not quantity. Mr Ferguson willingly participated in the testing. 14 The decision as to the cause of Mr Ferguson's anxiety was based on the assumptions of others who were without medical expertise, submitted Mr Cook. There were a number of issues that could have caused Mr Ferguson's anxious state. His previous complaints had not been properly investigated. 15 Mr Cook said that Mr Ferguson should be reinstated to his position of truck driver and was seeking remuneration for lost wages. THE CASE FOR THE RESPONDENT 16 Mr Smith submitted that the respondent relied on the evidence of Mr Gissing and Mr Fisher. Mr Ferguson, he said, had accepted the references in the Enterprise Agreement to procedures, drug use and safety issues. While Linfox is an employer of choice, having been described in evidence by Mr Ferguson as "a retirement home", Mr Smith submitted that working for the respondent brought with it certain responsibilities, including safe driving. 17 Mr Smith cited a decision of Walton J, Vice President, in Inspector Campbell v James Gordon Hitchcock [2004] NSWIRComm87, a prosecution under the Occupational Health and Safety Act 1983, in which Mr Hitchcock, the employer in that case, was held liable for the death on the road of a driver in his employ. The driver had been found to have methamphetamine in his system. Mr Smith, while recognising the difference between the Hitchcock case and the current proceedings, said the decision highlighted the responsibilities of companies such as the respondent. 18 Mr Ferguson's medical testing took place at the earliest possible opportunity, submitted Mr Smith, and was consistent with the applicant having been provided with procedural fairness at every point of the disciplinary procedure. Mr Smith referred to the application by the union as "irresponsible" considering the company's good record and its adherence to strict safety policies and procedures. CONSIDERATION 19 The Hitchcock case cited by Mr Smith was one in which the employer failed to provide information, instruction, training and supervision of its employees, who commonly drove a 15 hour route. In the matter before me, on the other hand, the applicant agreed he was appropriately trained, and had been questioned about taking too long (14 hours) for a trip. While it was a matter heard under different legislation than the current proceedings, the penalty provided in the Hitchcock case points to the level of importance that is placed on safety issues by the Commission and the requirements of the relevant legislation. The Commission is aware of the obligations on employers under the Occupational Health and Safety Act. 20 In the Hitchcock case, the driver in question was using illegal drugs to stay awake. In the current case, the company required an immediate medical assessment, in response to a concern that Mr Ferguson might be using drugs while driving. The assessment was carried out as soon as practical, given the hour of Mr Ferguson's return and his abandonment of a medical appointment the following day. The medical assessment showed that he had amphetamine and methamphetamine in his system. When challenged, and given ample opportunity to offer an explanation, Mr Ferguson did not respond. It was only in preparation for the hearing that he suggested for the first time that he had taken an overdose of an over-the-counter medication which may have effected his drug test. 21 It is not surprising then that the respondent made a decision to terminate Mr Ferguson's employment as truck driver, particularly in light of Mr Ferguson's admission that he had previously used drugs when driving for long periods of time. 22 The evidence was that medical advice was given that the test findings inferred that, for drugs to be present in the pathology results two days after the event, there was likely to have been such a level of drugs as to have caused hallucinations. There was no direct link between the scant information provided in writing in the pathology report and the inference of a high level of drug use. Of itself, that inference is unsubstantiated. However, it is reasonable that the respondent took into consideration Mr Ferguson's behaviour on the day he was driving, together with the pathology result and a lack of reasonable explanation for those results, in assessing the likelihood of drug use at that time. 23 As to the issues of procedural fairness raised by Mr Cook, I am satisfied that the respondent took appropriate measures to ensure the medical assessment took place as soon as practical following the concern being raised. They first spoke to Mr Ferguson, observed his behaviour and demeanour, ensured his familiarity with company policies, gave him the opportunity to explain and made further enquiries to check the explanations provided. The respondent caused no delay to the process of investigation. 24 Mr Ferguson was not driving on the day of the drug testing, allowing an opportunity for his use of amphetamine and methamphetamine in the period between his driving and the testing. However, he offered no such explanation to the respondent at the time. Additionally, Mr Ferguson's erratic behaviour - described as agitated, distracted and lacking in concentration - was observed by the respondent's witnesses and was itself without explanation, other than by the possibility of drug taking. This possibility was confirmed by the pathology results. Mr Ferguson may have hoped that two days delay, to which he contributed, would cause a negative result. This was not the outcome. 25 Following Mr Ferguson's interview on 25 May, the information available to the respondent was as follows: § A complaint had been received from the OHS Committee representative about Mr Ferguson's behaviour. § At a meeting held when Mr Ferguson returned from his run on that day, his explanation for taking 14 hours to complete a nine to ten hour trip was that he was being followed. Subsequent enquiries led to the claim not being substantiated. § At the meeting, Mr Ferguson appeared agitated, distracted and lacking in attention. § Mr Ferguson admitted taking recreational drugs some years earlier but said he no longer needed to, since he was working nine to ten hour shifts. This direct linking of drug use with driving was of concern to the respondent. § A medical appointment on the next day was not kept, despite Mr Ferguson's agreement to do so. § The subsequent medical testing showed the presence of amphetamine and methamphetamine in Mr Ferguson's urine sample. § At the meeting which followed, where he was accompanied by a witness of his choosing, Mr Ferguson offered no explanation for the medical results, despite having been warned that his job was in jeopardy. § Mr Ferguson acknowledged awareness of his duty of care to other road users. § Mr Gissing and Mr Fisher had extensive experience in the transport industry and were aware of the effects of drug use on drivers, and of the respondent's "very strict and very clear" policies in regard to their OHS responsibilities. 26 Mr Ferguson had not offered an alternative explanation for the detection of drugs, as he later did during these proceedings. Even if I was to accept the explanation offered in proceedings, that explanation was not offered to the respondent at the relevant time, although opportunity to do so was provided to Mr Ferguson. 27 Mr Ferguson had been assisted by a union representative during the final meeting with his employer. His behaviour of taking excessive hours to complete his run was not satisfactorily explained. His reports that he was being followed are consistent with the possible effects of drug taking over the period of the reports, and are inconsistent with the outcome of the respondent's investigations. 28 The respondent was obliged to consider the safety of Mr Ferguson and other road users and consider whether, on the balance of probabilities, the continuing employment of Mr Ferguson was consistent with the respondent's well-known policies and legal responsibilities. On the standard required for employment matters, I am satisfied that the respondent made an appropriate decision. CONCLUSION 29 The applicant had been dismissed from the position of truck driver by the respondent following a complaint about his ongoing behaviour, raised with the respondent as an occupational health and safety issue. The investigation that followed, including medical testing, resulted in the respondent terminating the applicant's employment. 30 I am satisfied that the respondent acted appropriately, with no evidence being provided to the Commission of any unfairness in procedure or in substance. The decision to terminate the applicant's employment was open to the respondent and, in fact, may reasonably be said to be the only option available in the circumstances. 31 I find the dismissal of the applicant was not harsh, unreasonable or unjust. The application is dismissed. __________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.