Industrial Relations Commission of New South Wales CITATION: Australian Workers' Union, New South Wales (o-b Zoran Angelkovski) and BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1010 APPLICANT PARTIES: Australian Workers' Union, New South Wales (o/b Zoran Angelkovski) RESPONDENT BlueScope Steel (AIS) Pty Limited FILE NUMBER(S): 2930 of 2006 CORAM: Macdonald C CATCHWORDS: Unfair dismissal application - summary dismissal - workplace incident - Applicant denied responsibility for incident - Applicant spoke in Macedonian language to another crane driver who then said to the enquiring supervisor he thought he was responsible for incident - drug and alcohol test for crane driver who took responsibility - Applicant thus avoided drug and alcohol test - Applicant suspected he would fail drug and alcohol test - Respondent's officers continued their investigation into incident - Applicant owned up to his responsibility for incident - Applicant summarily dismissed - reinstatement application unsuccessful LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Concut Pty Ltd v Worrell (2000) 103 IR 160 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 HEARING DATES: 04/12/06, 05/12/06 DATE OF JUDGMENT: 3 April 2007 APPLICANT Mr Dave Hancock Australian Workers' Union, New South Wales LEGAL REPRESENTATIVES: RESPONDENT Ms Nicola Street Australian Industry Group New South Wales Branch DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: COMMISSIONER MACDONALD 3 April 2007 Matter No IRC 2930 of 2006 Australian Workers' Union, New South Wales (o/b Zoran Angelkovski) and BlueScope Steel (AIS) Pty Limited Application by Australian Workers' Union, New South Wales on behalf of its member Zoran Angelkovski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2007] NSWIRComm 1010 1 The Commission has before it an application by Zoran Angelkovski ("the Applicant") for unfair dismissal against BlueScope Steel (AIS) Pty Limited ("the Respondent") pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The Applicant was represented by the Australian Workers' Union, New South Wales ("the Union"). 2 The matter was set down for Conciliation and Directions on 28 August 2006 and a Report Back on 8 September 2006. The matter remained unresolved and was set down for a Hearing on 4 and 5 December 2006. 3 At the Hearing, the Union was represented by Mr Dave Hancock, union official, who called the following witness: · Zoran Angelkovski - the Applicant The Respondent was represented by Ms Nicola Street, employer advocate of Australian Industry Group, who called the following witnesses: Steven Guy - Plate Despatch Manager Lewis Lopez - Shift Supervisor Paul Cugaly - Plate Processing Manager All proceedings before the Commission took place in Wollongong. BACKGROUND 4 The Applicant has been employed by the Respondent since 1990. At the time of the Applicant's summary dismissal, he was employed as a crane driver at the Plate Mill. 5 On 28 July 2006, the Applicant was carrying out his crane operation duties when an incident occurred. His crane had picked up some lengthy steel plates for transportation: 3 metres wide by 21 metres long. Unbeknown to him, he said, he had picked up three (3) instead of two (2) such lengthy plates. During the course of the transportation, one of the plates slipped from the crane's grasp and fell to the floor, clipped a rail wagon and came to rest against the wagon. This caused a problem with a rail shunt that was then taking place. 6 Mr Lopez, Shift Supervisor, spoke to the Applicant about the incident. As there was damage caused by the dropped plate, Mr Lopez directed the Applicant to undertake a drug and alcohol test. The Applicant responded it was not he who had dropped the plate. 7 The Applicant spoke to another crane driver, Steven Petrovski (in the Macedonian language) and asked if he would take the drug and alcohol test. Mr Petrovski agreed to do so - that is, he responded to Mr Lopez (who does not speak Macedonian) that it must have been him (and not the Applicant) who dropped the plate. 8 Mr Petrovski took the test which was negative. 9 An investigation was carried out into the incident. During the course of the investigation, it became known that it was the Applicant who had dropped the steel plate. (How that knowledge came about, was an issue in the proceedings.) 10 The Employer's Reply to the unfair dismissal application said, in part, that during the course of the investigation, the Applicant had knowingly deceived his supervisor (Mr Lopez) as to the correct details of the incident. He achieved this by lying to his supervisor and then coercing a fellow employee (Mr Petrovski) to also lie to his supervisor. Further, the Applicant had previously received a final written warning and lengthy suspension that covered safety and behavioural issues. 11 The Applicant was summarily dismissed for serious misconduct. FINAL SUBMISSIONS For the Applicant 12 Mr Hancock, for the Union, put the following in final submissions: (a) An incident took place on 28 July for which the Applicant was summarily dismissed. The incident arose out of his occupation as a crane driver. He had unknowingly picked up three lengthy plates instead of two plates. One of those plates dislodged and fell to the ground - hitting a rail wagon. The Applicant was not told that a rail wagon shunting process was taking place, as required by the shunting guidelines, and accordingly the Union submitted that the Applicant cannot be held responsible for any consequent damage. (b) The Applicant was asked by his supervisor, Mr Lopez, whether he was the crane driver who dropped the plate. He denied he was the crane driver responsible. He was asked by Mr Lopez to take a drug and alcohol test as per the drug and alcohol policy. The Applicant, for a personal reason, panicked and refused on two occasions to take the test. The Union submitted that, in consequence of those refusals, the Applicant should have been sent home - as per the drug and alcohol policy. If Mr Lopez had sent the Applicant home then that would have been the end of the matter. (c) As the Applicant was not sent home, Mr Lopez continued his enquiry as to which crane driver had dropped the plate. He spoke to another crane driver, Mr Petrovski who initially said he could not remember if he had dropped the plate. The Applicant then spoke to Mr Petrovski in their Macedonian language and Mr Petrovski then replied to Mr Lopez that he must have dropped the plate (as opposed to the Applicant). Mr Petrovski took the drug and alcohol test and it came back negative. (d) The Union submitted that Mr Lopez erred again in not sending the Applicant for a drug and alcohol test, as well. The Union made this submission on the basis of a comment in Mr Lopez's witness statement. That is, Mr Lopez deposed that he thought the Applicant had dropped the plate. That being the case, Mr Lopez had failed in his duty of care, as a supervisor, to other employees by not sending the Applicant for such testing. (e) Mr Lopez reported the incident to his manager, Mr Cugaly whom, the Union said, also had concerns that the wrong employee had been counselled. Accordingly, the Union submitted, Mr Cugaly should have sent the Applicant home. Instead, the Respondent allowed the Applicant to continue working as a crane driver in order to use his skill as a crane driver. This was a breach of the Respondent's duty of care to fellow employees. (f) The Union, in summary, submitted in effect that had the Applicant been suspended from work by Mr Lopez, then he would not have been caught up in an investigation that eventually led to his being dismissed for deliberately deceiving his supervisor, Mr Lopez. (g) The Union sought reinstatement, with continuity of employment and no loss of wages. For the Respondent 13 Ms Street, for the Respondent, put the following in final submissions: (a) The Applicant was summarily dismissed for serious misconduct, being deliberate deception and dishonesty which resulted in the Applicant's wilful disregard for the safety and well-being of other employees. (b) As it was a summary dismissal, the Respondent carried the onus of proving, on the balance of probabilities, that the facts existed to support that summary dismissal decision. Those facts were the Applicant's conduct of deliberate deception and dishonesty during the Respondent's investigation into the plate dropping incident. The Applicant lied to his supervisor and manager when he said he had not dropped the plate. (c) The Applicant wilfully disregarded the safety and well-being of other employees by coming to work knowing that his personal circumstance was such, that he would fail the drug and alcohol test. That disregard for the safety of other employees, was still in effect, when he continued to operate the crane and another machine - after the plate dropping incident in question. (d) The Applicant shifted the blame for the plate dropping incident to another crane driver, Petrovski. (e) The Applicant's conduct breached the trust and confidence essential to an employee-employer relationship. Thus, the Applicant had not attended work free from drugs or alcohol and he knew he was not in a safe state of mind and condition to so attend. He had not been honest with his employer in his approach to the plate dropping investigation. (f) The Applicant's lying to his supervisor and manager was wilful and deliberate. (g) The Applicant had a lengthy employment record of some 17 years but it was also tarnished. (h) As to the Union's submission that the Respondent was at fault in not testing the Applicant, this was denied. The drug and alcohol policy is directed at the employee responsible for an incident. The Applicant denied he was responsible and so he was not tested. (i) The credibility of the Applicant as a witness was relevant to the Commission's deliberations. The Applicant, it was submitted, had given inconsistent evidence: whether he did or did not continue to drive his crane after the plate dropping/denial incident. (j) Reinstatement was opposed. Applicant in Reply 14 The Union submitted that the Applicant's supervisor and manager had a doubt about his role in the plate dropping incident, and should have sent the Applicant home until the investigation was concluded. CONSIDERATION 15 The Applicant was "summarily dismissed for serious misconduct", due to the events arising on Friday 28 July 2006. (Ex 5 - SG4) The letter is dated 3 August 2006 (the following Thursday). 16 Given that it is a summary dismissal, the Respondent carries the onus to prove that the facts existed to support the Respondent's decision to summarily dismiss the Applicant: Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White (No 3) (1990) 35 IR 70 at 83-84. The standard of proof required to prove that those facts existed, is the balance of probabilities. That is, the Respondent (in summarily dismissing the Applicant), has to prove that those facts existed, on the balance of probabilities. In this case, the onus placed on the Respondent has been largely satisfied given that the Applicant confessed, belatedly, as to the true events of Friday, 28 July 2006. 17 The Applicant seeks reinstatement, without loss of continuity of employment and without loss of remuneration. The Respondent opposes that remedy. The Reason for the Summary Dismissal 18 The Respondent's letter of summary dismissal gives no detail as to the reason for that summary dismissal. The letter gives the concept of "serious misconduct" only as the reason for dismissal. 19 The "Employer's Reply" to the unfair dismissal application gives a succinct outline of that detail in support of the "serious misconduct." In final submissions, the Respondent advised that the "serious misconduct" was the Applicant's deliberate deception and dishonesty as to an investigation into the plate dropping incident. The Applicant accordingly showed a wilful disregard for the safety and well-being of other employees because of his own personal circumstance that is, that he had taken a prohibited substance. The Applicant's conduct breached the trust and confidence essential to an employer-employee relationship. The Respondent provided case law on that trust and confidence submission. The Serious Misconduct 20 The Applicant was rostered to work the night shift beginning Thursday (27 July) and concluding Friday (28 July). On Friday morning, around 3.30 am, the plate dropping incident occurred. The plate was dropped by the No 3 crane driver, being the Applicant. Mr Lopez, the shift supervisor, investigated the incident. He said he did not witness the plate dropping but heard the consequent loud bang. (Ex 6 - para 18) From this undisputed evidence, the Commission notes that Mr Lopez begun his investigation but without knowing by his own observation, as to who dropped the plate. 21 Mr Lopez questioned the Applicant on the shop floor about the dropped plate. The Applicant's witness statement is not written in a, "I said" - "He said" conversation format and hence lacks the necessary detail to ascertain the conversation between these two persons, from the Applicant's viewpoint. (Ex 1 - para 5) 22 Mr Lopez's statement sets out in conversational style, his discussion with firstly the Applicant and then Mr Petrovski (the No 4 crane driver), as to who dropped the plate. (Ex 6 - paras 24 to 53) 23 Mr Lopez's statement as to his enquiry with the Applicant, showed that he asked the Applicant if he had been the person who dropped the plate. The Applicant initially did not directly respond to the enquiry but responded that he had picked up the plate and that therefore there was no incident of concern. At that response, Mr Lopez directed the Applicant to take a drug and alcohol test because Mr Lopez could see that the incident was a matter of concern as the dropped plate caused damage and had taken place while a rail shunt was taking place nearby and this raised safety issues. 24 The Applicant's response to the drug and alcohol test, as recorded by Mr Lopez, is as follows: "I didn't drop the fucking plate. I wasn't driving the fucking crane and I'm not fucking going to the drug test." The Applicant disagreed he said "fucking" on three occasions. He only said it once: "... so I'm not going to take a fucking Drug and Alcohol test ." (Ex 3 - cf para 33) Mr Lopez said he asked the Applicant for a second time to attend the ambulance station for the test. At that, the Applicant turned around and walked away without responding. The Applicant disagreed he had walked away without saying anything. He said he had walked away and stated he would not do the test. (Ex 3 - cf para 34) 25 Mr Lopez followed and asked again as to who dropped the plate. The Applicant did not respond to that question but said he would search out the No 4 crane driver, Mr Petrovski. The Applicant disagreed he went looking for Mr Petrovski. He said he panicked and just walked away. (Ex 3 - cf para 39) 26 In summary of the evidence so far, it shows that Mr Lopez asked the Applicant as to who had dropped the plate but the Applicant did not respond to this question directly. Instead, the Applicant created the impression by his responses to Mr Lopez, that there was no incident of concern for Mr Lopez. Mr Lopez, however, pursued his enquiry as to who had dropped the plate. This time the Applicant denied he had done so. In his right of reply, he deposed as follows, " ... I didn't do anything wrong so I'm not going to take a fucking Drug & Alcohol test " (Ex 3 - cf para 33) This then represents, on the Applicant's account of the conversation, one denial of his responsibility. Mr Lopez asked for a second time as to who dropped the plate, and the Applicant denied that he said that he and Mr Lopez should look for Mr Petrovski. He says he panicked and walked away from Mr Lopez. The Commission observes that even on the Applicant's version, he did not respond to this second question to him as to who dropped the plate. In toto, the evidence shows, at least, that the Applicant evaded the question as to who dropped the plate - thence denied it was him - and then evaded the question again. 27 The enquiry went into its second stage with the involvement of Mr Petrovski. 28 Mr Lopez deposed that he explained to Mr Petrovski that there was an issue about a dropped plate whilst a rail shunt was taking place and Mr Lopez wanted to know as to who had dropped the plate. 29 Mr Lopez deposed that the Applicant responded, "Not me". The Applicant did not dispute this assertion in his right of reply. This represents a second undisputed denial. 30 Mr Lopez asked Mr Petrovski if he had dropped the plate. Mr Petrovski responded, "I can't remember." 31 Mr Lopez deposed that the Applicant again said, "Not me." The Applicant did not dispute this assertion. This represents a third undisputed denial. 32 Mr Lopez questioned Mr Petrovski again. Mr Petrovski responded, "I'm not sure." 33 Mr Lopez deposed he said to both crane drivers, "I need to know who dropped it otherwise I will have to get both of you to come to the ambulance with me for a D & A Test." The Applicant did not dispute this assertion. (Mr Petrovski did not give evidence in the proceedings.) 34 At this point, Mr Lopez records that the Applicant began speaking to Mr Petrovski in the Macedonian language, which Mr Lopez did not understand. The Applicant did not dispute this assertion. Importantly, he did not dispute that it was he who initiated the discussion in the Macedonian language. The Commission makes this observation in the context of the Applicant's defence that he panicked. 35 Mr Lopez again asked as to who had dropped the plate. The Applicant did not dispute this assertion. 36 Mr Lopez said that the Applicant and Mr Petrovski again had a further conversation in Macedonian. Then Mr Petrovski said, " It must have been me. " Mr Lopez queried this admission of Mr Petrovski as Mr Petrovski appeared reluctant and hesitant. Mr Petrovski responded, " It might have been me." In summary of the second stage of the enquiry by Mr Lopez, the evidence showed that the Applicant denied for a second and third time that he was responsible for dropping the plate. The evidence also showed that Mr Petrovski suggested it was he who was responsible. This followed his Macedonian conversation with the Applicant initiated by the Applicant. 37 As to this Macedonian conversation, the Applicant confirmed under cross-examination, that he: (a) initiated the discussion in Macedonian; and (b) asked Mr Petrovski to take the test for him. (Tr p 23, line 9 to 18) 38 Mr Petrovski and Mr Lopez headed off to the medical centre for Mr Petrovski's drug and alcohol test which came back negative. Mr Lopez continued his investigation of the incident with Mr Petrovski and advised him that the incident would be recorded on his history card. Mr Petrovski asked, to no avail, that no entry be made. 39 Mr Lopez informed Mr Cugaly, Plate Processing Manager. of the incident. This discussion occurred around 6.40 am on Friday morning, 28 July. The night shift (from Thursday night) finished at 7.20 am, and Mr Lopez left work for the day. 40 The Applicant's night shift also came to an end on the Friday morning but he stayed on to do an overtime shift (the day shift spread of hours). 41 Mr Cugaly was on the day shift for that Friday. He attended the Industrial Relations Commission, in Wollongong, in the morning. Upon his return, he investigated the plate dropping incident with afternoon shift supervisors who had been made aware of the incident by Mr Lopez. Mr Cugaly then spoke with the Applicant about the incident. He did so around 2.30 pm. (Ex 7 - paras 18 to 21) 42 Mr Cugaly was told by the Applicant that he had not dropped the plate but that Mr Petrovski had done so. The Applicant's right of reply (Ex 4) to Mr Cugaly's above assertion, did not dispute that assertion. 43 Mr Cugaly continued his investigation and around 3.50 pm on the Friday, he learnt from a supervisor that it was the Applicant who had dropped the plate. This supervisor had witnessed the incident. (Ex 7 - para 23) 44 Mr Cugaly then learnt of the exchange between the Applicant and Mr Petrovski, in the Macedonian language, when he spoke with another afternoon shift supervisor. This raised a concern that Mr Lopez may have counselled the wrong crane driver. (Ex 7 - paras 25 and 26) 45 Mr Cugaly sent an email to Mr Lopez, on Friday night, advising of the need to investigate the matter further. Mr Lopez confirmed receipt of this email and added that the email directed him to speak to Mr Petrovski on Sunday and advise him of the need for a further interview. (Ex 6 - para 71) 46 Mr Lopez worked the afternoon shift on the Sunday. He spoke to three employees who denied being involved in or witnessing anything. Mr Lopez deposed that both the Applicant and Mr Petrovski had elected to work the rostered overtime afternoon shift on that Sunday but neither had attended for work. (Ex 6 - paras 74 and 76) The Applicant's right of reply (Ex 3) did not dispute that he was rostered to work that Sunday. 47 The investigation continued the following day, Monday. Mr Cugaly interviewed on the Monday, three employees involved in the rail shunting side of the business. None know who dropped the plate. He also spoke with several other employees. (Ex 7 - paras 30 to 34) 48 At approximately 5.30 pm, the Applicant telephoned Mr Cugaly and advised him to "stop the investigation and the interviews" as the Applicant had all of the information that Mr Cugaly needed. The Applicant wanted to talk to Mr Cugaly. The Applicant's witness statement stated he had heard of the investigation. He deposed he was worried that Mr Petrovski would be in trouble and that was why he telephoned Mr Cugaly and said he would explain what happened. (Ex 1 - para 7) 49 Mr Cugaly continued his investigation by speaking with Mr Petrovski around 5.50 pm and then spoke to the Applicant around 6.00 pm. Mr Lopez and a Union official were present for both meetings. Both employees gave a correct account as to the plate dropping incident - that is, the plate was dropped by the Applicant. 50 In summary of Mr Cugaly's investigation, the Commission relevantly points out that the Applicant denied to Mr Cugaly that it was he who had dropped the plate. This denial was made some eleven hours after the initial investigation by Mr Lopez and hence the denials to Mr Lopez. Dishonesty and Case Law 51 The Respondent submitted that the Applicant was summarily dismissed because he had engaged in deception to the Respondent's investigating officers (Mr Lopez and Mr Cugaly) and he continued to work on machinery, knowing that he had taken a prohibited substance, and hence showed his wilful disregard for the safety of his fellow employees. 52 As to this claim of deception, the evidence shows that the Applicant was dishonest in his responses to the two investigating officers. He denied on three occasions to Mr Lopez and on one occasion to Mr Cugaly that he was the crane driver responsible for the plate dropping incident. These two lots of denials came about eleven hours apart. 53 The Applicant's defence to his denials is that he panicked when asked by Mr Lopez to take the drug and alcohol test. He panicked as he was worried he would test positive as he had taken a prohibited substance on the weekend prior to the request. This was why he asked the No 4 crane driver Mr Petrovski, in the Macedonian language, to take the drug and alcohol test. (Ex 1 - para 8) He was also worried because he might lose his job over this incident. 54 The Applicant went on to say he came to regret his conduct, which he pondered over the weekend. He decided to "come clean" and that is why he telephoned Mr Cugaly on the Monday afternoon. (The Commission notes, but without needing to decide, that the Applicant may have "come clean" because he realised that the investigation process did not come to an end on the Friday with Mr Lopez but continued on the Friday afternoon with Mr Cugaly's discussion with the Applicant. The investigation continued on Sunday and Monday through Mr Lopez and Mr Cugaly speaking to several employees. The Applicant stated in his witness statement that he rang Mr Cugaly and told him to stop the investigation process. That is, the Applicant was aware that the investigation had not stopped on the Friday and hence, he would be caught out.) 55 As to the Applicant's defence that he panicked and then "came clean", and therefore he should be reinstated, the Commission is unable to accept. 56 The Applicant's conduct had a twofold impact: firstly, his denials to two company officers raised the issue of breach of trust between him and those officers; secondly, his working under the influence of a prohibited drug and his continued working after falsely denying he was to blame for the dropped plate, raised the issue of his responsibility to his own safety on the job and his responsibility for the safety of his fellow employees. 57 As to these denials to the two company officers, these denials totalled four. He denied on three occasions to Mr Lopez and once to Mr Cugaly. 58 The consequence of the denials to Mr Lopez is that the investigation by Mr Lopez was sent off in the wrong direction and the wrong employee (Mr Petrovski) was sent off for a drug and alcohol test and the wrong employee was counselled about the plate dropping incident. The further consequence is that the investigation process did not come to an end on the Friday, by way of the wrong employee taking the blame. The investigation continued (despite a fourth denial to Mr Cugaly) through to the Monday afternoon - tying up two company officers in their interviewing of several employees. 59 Most of that investigation and interviewing process would not have been required if the Applicant had not made those denials. From the point of view of the officers, the terminology "denials" is not appropriate. Mr Cugaly deposed that the Applicant " had deliberately deceived both myself and Mr Lopez so he could evade the consequences of the investigation's outcome ". (Ex 7 - para 100) 60 As to the second impact of the Applicant's conduct, this went to his breach of the Respondent's safety policies. The Respondent's policy is called: "Cardinal Rules - Our Life Preserving Principles" (February 2003) (Safety Health and Risk Port Kembla Steelworks). (Ex 7 - Annex PC 6) Mr Cugaly deposed that the Applicant's conduct had breached two of the Cardinal Rules, being: · Not deliberately endangering the lives of anybody, including ourselves; and · Not knowingly allowing anyone to work in a life threatening environment. 61 The breach involved: a) the Applicant taking a prohibited drug during the prior week; b) he had worked whilst potentially under the influence of a prohibited drug; c) his work judgment could have been adversely affected; d) he operated heavy machinery (a crane) in the presence of other employees and this placed those employees at a safety risk (including for the Applicant); and e) having misled the investigating officer (Mr Lopez), the Applicant then continued to operate machinery and in doing so, raised again the issue of safety for the other employees and for the Applicant himself. 62 In final submissions, the Respondent's advocate (Ms Street) took the Commission to a number of decisions on the issue of breach of trust between an employee and an employer and the impact on the employee/employer relationship. One of those decisions is Concut Pty Ltd v Worrell (2000) 103 IR 160. This decision is by a Full Bench of the High Court of Australia. Justice Kirby, in a separate but concurring judgement stated: " that acts of dishonesty or similar conduct destructive of the mutual trust between the employer and employee, once discovered, ordinarily fall within the class of conduct which, without more, authorises summary dismissal." (p 160 at 173) CONCLUSION 63 Having considered all of the evidence, the Commission concludes that it will not intervene in the decision of the Respondent to summarily dismiss the Applicant. 64 In coming to that conclusion, the Commission has had regard to the dishonest responses of the Applicant to the two investigating officers. That dishonesty misled the investigating officers as to the identity of the employee responsible for the plate dropping incident. 65 The plate dropping incident was a serious matter. There are employees working on the shop floor below the overhead crane and a dropped plate could have serious consequences for any of those employees. It is a dangerous working environment. 66 The Applicant misled the two investigating officers because he had taken a prohibited substance the weekend prior. This was why he misled them in order to avoid a drug and alcohol test which he believed would produce a positive result. Despite knowing that he had taken a prohibited substance, he continued to operate the overhead crane - after misleading the first investigating officer - and did so knowing that that was a breach of the safety policy in respect of the safety of his fellow employees - let alone his own safety. 67 The Applicant's dishonesty and the consequent putting employees at risk through a potential drug impairment, is conduct justifying summary dismissal, having regard to the reasoning of Kirby J above. 68 The Applicant put up the defence of panic as he was worried that he might return a positive finding if he took the drug and alcohol test and be dismissed. The Commission can not accept this defence. To do so, would open up the opportunity for employees to indulge in prohibited drug taking and, if an accident happens on the job, then the employees can use the defence of panic to avoid a drug and alcohol test by asking someone else to take the test. The Applicant's defence was prefaced on the basis that dismissal follows a positive finding from a drug and alcohol test. However, Mr Cugaly deposed "... that employees are not automatically dismissed for solely testing positive to a test ." (Ex 7 - para 116) Annexure PC9 to his statement sets out the slides used by the Respondent in explaining its Alcohol and Other Drugs Policy. Slide 9 sets out the consequence of a positive test finding. It states that " Dismissal may occur for a further breach after a third positive test ." Thus, dismissal is not an automatic consequence of a positive test finding. The Applicant's understanding of the above policy was flawed. However, he may have been dismissed if he took the drug and alcohol test, because of the positive finding that would likely have been produced and the fact that he had been placed on a written final warning, by letter of 16 October 2002, because of his adverse employment record. Perhaps the above scenario was the real cause lying behind the defence of panic. 69 The Union put forward a submission that the Applicant's dismissal was the result of Mr Lopez not following company policy by sending the Applicant home when the Applicant refused to take the drug and alcohol test. The Commission rejects this submission, which, put another way, says that if Mr Lopez had directed the Applicant to go home for refusing the test, then the Applicant would not have then engaged in the deceit of the two company officers. And, therefore, it is the fault of Mr Lopez that the Applicant became deceitful! 70 The Commission considered the Applicant's length of employment (17 years) in its deliberation, but that lengthy service carried little weight given the Applicant's serious misconduct. 71 For the record, the Respondent interviewed and counselled Mr Petrovski about this incident. He was given a five day suspension and a final warning. (Tr - p 72, line 46 to 52) The Union sought the remedy that the Applicant be reinstated without loss of continuity of employment and without loss of monies. If the Commission had granted that remedy, then the Applicant would have been better off than Mr Petrovski, even though it was the Applicant who was cause of the incident. This would have been a bizarre result. 72 For all of the reasons encompassed in this Decision, the Commission has decided not to intervene in the Respondent's decision to summarily dismiss the Applicant. A Macdonald Commissioner 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.