Industrial Relations Commission New South Wales Medium Neutral Citation: Grant Thomson v Boral Construction Materials Limited [2011] NSWIRComm 1045 Decision date: 01 September 2011 Before: Connor C Decision: Order for reinstatement in employment made - claim for payment for loss of earnings declined. Catchwords: DISMISSAL - cement industry - referral of an industrial dispute - failure of witnesses to obey a summons to appear - adjournment application granted for part of hearing - evidence to be admitted in hearing - role of a union delegate - drug and alcohol testing as part of a medical examination - whether a drug test by urine sample is required for a medical examination - refusal to take part in a medical examination involving a drug test by urine sample - directions to other employees not to continue the medical examination with a drug test - allegations of misconduct - allegedly abusive conduct to nursing staff at a medical clinic - allegations denied - onus and standard of proof required Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Rail Safety Act 2008 Transport Administration Act 1988 Federal Fair Work Australia Act 2009 Federal Workplace Relations Act 1996 Cases Cited: Burge v BHP Steel Pty Limited (2001) 105 IR 325 Busways v Johnson (1994) 55 IR 255 Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 Garden Island Dockyard Case (1964) 107 CAR 806 Gorman v Broken Hill Proprietary Company Limited [2000] NSWIRComm 1079 Holcim (Australia) Pty Limited v Transport Workers' Union of New South Wales [2010] NSWIRComm 1068 Hollingsworth v Commissioner of Police No.2 (1999) 88 IR 282 Homebush Abattoir Case (1966) AR 371 John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517 Jones v Dunkel (1959) 101 CLR 298 Jovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 All ER 67 Newcastle Steel Works Case (1961) AR 48 O'Brien v Linfox Limited [2001] NSWIRComm 1948 Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White No.3 (1990) 35 IR 70 Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 Plummer v Stannard Brothers Launch Service (2005) 143 IR 111 Public Service Association of New South Wales v Macquarie Generation (1961) AR 48 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Corrective Services (2006) 153 IR 125 Public Service Professional Officers' Association of New South Wales v Forestry Commission of New South Wales (1990) 39 IR 46 Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132 Sewell v New South Wales Police Force (2008) 174 IR 247 Seychelles v. Linfox Distribution Group - unreported South Sydney City Council v Federated Municipal and Shire Council Employees Union (1989) 28 IR 363 Subramaniam v Public Prosecutor (1916) 1 WLR 965 Sydney Ferries Corporation v Seamen's Union of Australia (2009) 186 IR 99 Transport Workers' Union of Australia v CWS Transport Services Pty Limited (1990) 39 IR 8 Re Vassis; ex parte Leung (1985/1986) 9 FCR 518 Wang v Crestell Industries Pty Limited (1997) 73 IR 454 Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 Category: Principal judgment Parties: Australian Workers Union (applicant) Boral Construction Materials Limited (respondent) Representation: Adam Hatcher (applicant) Ralph Warren (respondent) Aron Neilson (solicitor) Nick Chadwick (solicitor) File Number(s): IRC 418 and 465 and of 2011 DECISION INTRODUCTION 1Pursuant to the provisions of s.146B of the Industrial Relations Act 1996 , the Australian Workers' Union lodged a notification of an industrial dispute with Boral Construction Materials Limited (formerly Blue Circle Southern Cement Limited) concerning allegations of misconduct made against one of its members, Mr Grant Thomson, who worked for Boral Cement at its Marulan site. Mr Thomson is AWU delegate at the site. That matter was allocated to me and I set it down for a conference on Monday, 21 April, 2011. Subsequently, the AWU also lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the State IR Act, asserting that Mr Thomson's services had been terminated unfairly effective from Wednesday, 20 April, 2011. The AWU sought an urgent conference with respect to that matter and I listed it for that conference with the s.146B notification. 2In fact, the AWU lodged its Part 6 application ahead of the actual dismissal and apparently in anticipation of it - and that dismissal followed shortly thereafter. The following letter signed by Mr Les Longhurst, the acting operations manager for Boral Cement, was forwarded to Mr Thomson by courier on Wednesday, 20 April, 2011: "....Your employment at Boral Cement has been terminated because it has been determined that during a medical appointment on Tuesday, 22 March, 2011 at the Marima Clinic that had been arranged by the company in order for you and other employees who are part of the Perway Group to gain a medical clearance under the Rail Safety Act, 2008, you engaged in serious misconduct in that you: (i) used foul language and abused and threatened the staff at the clinic; (2) attempted to remove and have destroyed a urine sample that had been taken from another employee of Boral Cement; (3) without authorisation or approval from Boral Cement, part-way through your medical examination, you decided to leave the clinic before your medical examination had been completed; (4) without authorisation or approval from Boral Cement, you organised, arranged and coerced the other Boral Cement employees who were also attending the clinic for a medical examination, to leave the clinic part way through their medical examinations and before their medical examinations had been completed; (5) failed to notify a supervisor or manager of your decision to engage in the conduct referred to in (3) and (4) above. The incident that occurred at the Marima Clinic has been thoroughly investigated by Boral Cement. You attended a meeting on site on Friday, 14 April, 2011 during which you were requested to respond to allegations about your conduct and behaviour during and after the incident on Tuesday, 22 March, 2011. You provided some information about the events on Tuesday, 22 March, 2011 however you and your AWU representative then requested Boral Cement provide to you a list of questions and allegations concerning the matters relevant to the investigation. At a further meeting with management on Tuesday, 19 April, 2011 you were asked to provide a response to the list of questions and issues sent to you and your AWU representative on Friday, 14 April, 2011. You then provided your version of the events that occurred at the clinic on Tuesday, 22 March, 2011. You then refused to answer any of the questions outlined in that letter. At the meeting with you to-day, you denied any wrongdoing in relation to your conduct and behaviour at the clinic on Tuesday, 22 March, 2011. Having considered all the information the company has gathered in relation to the events on Tuesday, 22 March, 2011, the company has determined that: (a) your conduct and behaviour at the clinic on Tuesday, 22 March, 2011 was entirely inappropriate and offensive; (b) your conduct and behaviour at the clinic on Tuesday, 22 March, 2011 placed the company in disrepute; (c) your decision to leave the clinic prematurely, without authorisation, was wrong and irresponsible; (d) your decision to organise, arrange and coerce the other Boral Cement employees to leave the clinic prematurely, without authorisation, was wrong and irresponsible; (e) your actions referred to in (c) and (d) above compromised the company's statutory obligations under the Rail Safety Act 2008. Before making the decision to terminate your employment, the company has taken into account previous instances when it was found that you acted inappropriately in the workplace..." 3It was Mr Longhurst's decision to terminate Mr Thomson's services but I believe he did so in consultation with Ms Kate Steenkamp, the organisational development manager of Boral, who also appears to have had a role in the decision to terminate Mr Thomson's services. THE PROCEEDINGS 4My attempt at conciliation in the proceedings on Monday, 21 April, 2011 was unsuccessful. I programmed the matters for arbitration over three days - Tuesday, 5 July, 2011, Wednesday, 6 July, 2011 and Thursday, 7 July, 2011. All proceedings with respect to these matters were conducted in the Commission's premises at 90 Crown Street, Wollongong. In the arbitrated proceedings Mr Hatcher (and Mr Neilson ) represented Mr Thomson and the AWU and Mr Warren represented Boral Cement. Annexed to this decision is a list of the witnesses called to give evidence in the hearing by either Mr Hatcher or Mr Warren . 5There was some difficulties concerning the availability of three witnesses - the three nursing staff at the clinic - to be called by Mr Warren under summons on the day scheduled for the hearing of their evidence. The nurses had domestic responsibilities and work requirements on that day. I accept their evidence to be vital. Moreover, it became clear to me that, not only to accommodate those witnesses but because of the nature of the case to be presented by the parties, further hearing days would be required. Therefore on the first day of the hearing - Tuesday, 5 July, 2011 - I indicated to the parties my concern to start this hearing and accommodate the availability of counsel within the time before my imminent retirement from Monday, 14 November, 2011. I gave the parties the opportunity to consider whether, in those circumstances, the matters should be reallocated to another member of the Commission for determination. 6The parties were content for the matter to continue before me, however. Mr Hatcher nevertheless opposed the application made by Mr Warren for an adjournment of the proceedings when he raised it on Thursday, 7 July, 2011. I granted Mr Warren's adjournment application, over Mr Hatcher's objection, however, setting additional hearing dates on Wednesday, 27 July, 2011 and Friday, 29 July, 2011. I reserved the position of Mr Hatcher to at that time argue for no further adjournment of the proceedings and consequently for no further evidence to be admitted into the proceedings beyond the two additional days I allocated for the matter. In fact, Mr Hatcher subsequently discovered that he was not available to attend the proceedings on Wednesday, 27 July, 2011 and Mr Neilson cross-examined the three members of the nursing staff at the clinic on that day. 7Initially, in accordance with the usual practice directions, witnesses statements were provided as part of the case for the AWU by Mr Scott Thomson, a team leader at the Boral Cement Marulan site (and Mr Thomson's brother), and Mr Andy Gillespie, branch secretary of the AWU (Port Kembla, South Coast and Southern Highlands) but ultimately, Mr Hatcher (or Mr Neilson ) did not choose to call them to give evidence. Nevertheless, Mr Warren initially foreshadowed that he would be seeking that parts of their written statements be admitted into evidence. Mr Warren referred in that respect to the decision of Burchett J of the Federal Court of Australia in Re Vassis; ex parte Leung (1985/1986) 9 FCR 518 at p.520 to support his argument, ie. that a written statement prepared on behalf of the AWU, and filed for it, but subsequently not admitted into evidence by it may still be received into evidence on the initiative of Boral Cement. Ultimately, however, Mr Warren abandoned that argument. 8These are, of course, serious allegations made against Mr Thomson but they are denied by him. Consequently, the burden of proving them falls on Mr Warren in this hearing [ Pastrycooks Employees, Biscuit Makers Employees and Flour and Sugar Goods Workers Union v Gartrell White No.3 (1990) 35 IR 70 at pp.83 and 84 and Sewell v New South Wales Police Force (2008) 174 IR 247 at p.275]. As the Full Bench of the Commission (Cahill J - Vice President, Hill J and French C) indicated in Wang v Crestell Industries Pty Limited (1997) 73 IR 454 at pp.463 and 464, viz: "...The onus of proof in such a case is on the employer and the standard of proof must be such as to enable a positive finding that the misconduct occurred. The standard is, of course, the civil and not the criminal one, but the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding. The satisfaction must be such as to warrant a positive finding of the type referred to by the High Court of Australia in M v M (1988) 63 ALJR 108 and by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362..." 9There is, in fact, much confusing and conflicting evidence in this hearing. As Mr Hatcher submitted, if on the evidence available to me in this hearing, there are any reasonable doubts in my mind concerning the allegation of misconduct by Mr Thomson, according to the standard required by Briginshaw v Briginshaw in that respect, I would be obliged to accept the version of events outlined in favour of Mr Thomson. In such a case, Mr Warren would have failed in discharging the onus of proof resting with him. But to my mind, there remains sufficient certainty in much of the evidence to establish the relevant circumstances giving rise to Mr Thomson's dismissal. JURISDICTION 10Whilst, of course, Boral Cement is a trading corporate within the meaning of s.51(xx) of the Commonwealth Constitution and thereby strictly falling outside the jurisdiction of the State Commission by virtue of that fact [ New South Wales v Commonwealth of Australia (2006) 156 IR 1], industrial disputes involving it in its operations have in the past been dealt with by members of the State Commission. Employees of the Marulan works are now covered by a workplace agreement made under the federal Workplace Relations Act 1996 - the Blue Circle Southern Cement Limited (New South Wales) Enterprise Agreement - but by virtue s.146B of the State IR Act (complimented by ss.738 and 740 of the federal Fair Work Australia Act 2009 ) industrial disputes involving s.51(xx) corporations may now be referred to members of the State Commission where the Federal industrial instrument authorises such referral for conciliation and, if necessary, arbitration. 11I do not believe that any issue between an individual dismissed employee and his former employer, on its own, would necessarily constitute an industrial dispute for the purposes of s.146B [ Roberts v Mona Vale District Hospital (1975) 2 NSWLR 132]. Unfair dismissal claims heard under Part 6 are customarily heard under a separate code of jurisdiction [ Woolstar Pty Limited v Federated Storemen and Packers Union of Australia (1992) 45 IR 39 at p.49]. But as I indicated in my decision of Wednesday, 11 April, 2007 in J ovanovski v BlueScope Steel (AIS) Pty Limited [2007] NSWIRComm 1019 at para 6: "...The question remains whether the dismissal of an individual employee constitutes, on its own, an industrial dispute in that respect. I do not believe that it does. What, in fact, gives it the character of an industrial dispute is the involvement of the (trade union) and its notification of the matter..." 12I believe that the AWU's involvement in this matter, and its s.146B notification, gives me the necessary jurisdiction to arbitrate the matter in dispute in these proceedings. BACKGROUND 13Boral Cement operates a limestone quarry and mine at Marulan. The product is tested, crushed at the site and despatched by trains and trucks. There is approximately 8km of railway line on the Marulan site. Mr Thomson has worked for Boral Cement and its predecessors for 21 years. For the last 15 of those years he has been engaged as an environmental officer and his task is essentially directed to ensuring that the operations of lime extraction at the site are conducted in compliance with environmental requirements. 14Mr Thomson, who was called to give evidence in the hearing by Mr Hatcher , outlined the process in which he was involved in a written statement which formed the basis of his evidence. His work, as he described it in his written statement, involved liaison with various environmental authorities, ensuring site compliance with various environmental requirements, taking water samples, preparing areas for re-vegetation, assessing environmental rectification work around the site and when mines were decommissioned, etc. According to Mr Hatcher , Mr Thomson was only involved in rail work at irregular times. 15Mr Graham Cochran, the manufacturing and despatch superintendent at the Marulan site, was called as a witness in the hearing by Mr Warren . Mr Cochrane described Mr Thomson's role in a written statement in somewhat different terms, viz: "....The environmental officer role from time to time came under the auspices of the service department. His functions in the services department included weed spraying on or around the railway line and other duties in connection with rail, such as rail maintenance work, including replacing sleepers and welding track and track inspection, as required to cover absences in that team..." 16Work on or around the Boral Cement rail line requires the worker to have a current "track safety awareness card" and that is accompanied by a medical examination. Mr Thomson claimed in his evidence that he was strictly involved in work on the railway line - track maintenance, replacing sleepers, etc - only in emergency situations and Mr Hatcher argues that Mr Thomson's role did not centre around work on and around the Boral Cement rail line to the extent that he actually needed a "track safety awareness card" and the rail safety medical examination. But nevertheless he still works from time to time on the Boral Cement railway tracks and consequently appears to have accepted that he requires a "track safety awareness card" for that work. That fact has some significance in this hearing which I will discuss in more detail later in this decision. 17Mr Hatcher has provided into evidence a model of a "track safety awareness card" for another Boral Cement employee. The card is not issued by RailCorp but by Southern Cross Rail Training and it imposes certain restrictions on the work which it permits to be performed, ie it denies access to the RailCorp network. The card has a photograph of the employee on the front and the conditions for the issue of the card are set out on the back, viz: "This is to certify that the person described on the front of this card is of good health and fitness, and in all other respects a fit and proper person to perform, and is capable of performing, the designated safety work as shown on this certificate. To be valid this card must be signed by the person shown on the front and must be produced when requested by authorised officers (Rail Safety Act 2002/2008)" 18So therefore a medical assessment of Boral Cement employees in rail safety work is required as a prerequisite to their obtaining a "track safety awareness card". THE REQUIREMENT FOR A REGULAR MEDICAL EXAMINATION 19The Marima Medical Clinic is an accredited health clinic and it regularly receives instructions for rail safety assessments for RailCorp, following standard procedure in that respect. The National Standard for Health Assessment of Rail Safety Workers under which Boral Cement operates oblige it to arrange for periodic health assessments of employees who may work in and around the Boral Cement rail line - Mr Thomson as well as four other employees (Mr Paul Roberts, Mr John Chandler, Mr Rodney Byrnes and Mr Scott Gorman). According to Mr Cochran, the last medical clearance for Mr Thomson and the group of employees involved on the Boral Cement branch rail line had occurred in the middle of 2006. They had been supplied at that time with "track safety awareness cards" which were due to expire on Tuesday, 30 March, 2011. There was therefore the need for the employees to be medically examined again. 20Mrs Kim Weeks, the practice manager/nurse of the clinic, had been contacted by Mr Cochrane, to arrange for the periodic medical assessments for the five Marulan employees and it was the understanding of Boral Cement management and Mrs Weeks that the National Standard obliged the employees to provide a urine sample as part of their medical examinations. Mr Hatcher argues that they were not required to do so. I will deal with this matter in more detail shortly in this decision. 21In fact, Mr Cochrane recorded in the written statement he provided as the basis of his evidence: "....I contacted Marima because I was aware that it was an accredited health clinic for the purpose of the National Standard. I also chose to contact Marima because I was aware that the Australian Workers Union had 'black banned' our traditional accredited health provider because it was dissatisfied with the provider's involvement in managing the eye condition of Scott (whom as I indicated earlier in this decision is the brother of Mr Thomson and a team leader at the Marulan site of Boral Cement)..." 22There are, in fact, four levels of assessments in the National Standard, viz: * Category 1 and Category 2: the highest levels of safety for medical assessment for persons whose tasks may result in a sudden incapacity which leads to a serious incident affecting the public or the rail network and whose medical examination must be supervised by a medical officer; * Category 3: for "non-safety critical" persons working in or around rail tracks in an "uncontrolled environment", ie one in which there may be moving trains during the work, whose health requirements are restricted to an examination and evaluation of hearing, vision and mobility and whose medical examination may be conducted by a nurse; and * Category 4: for "non-safety critical" persons working on or around rail tracks in a "controlled environment", ie one in which there would be no moving trains during the work and with respect to which there are no rail safety specific health requirements. 23According to Mr Hatcher , the Boral Cement branch railway line is a "controlled environment" under the National Standard. The maintenance work conducted by Boral Cement employees is always performed at times when trains are not moving on the railway line. Mr Hatcher accordingly argues, no doubt correctly, that the work in question would most likely fall under Category 4 and that would mean there would be no specific medical requirements for the work in question at all. However, consistent with past practice apparently, Boral Cement management had sought a Category 3 assessment for Mr Thomson, Mr Roberts, Mr Chandler and Mr Gorman. (Mr Byrnes was not included in that initial medical examination for reasons that are not clear from the evidence before me; possibly he was absent from work on Tuesday, 22 March, 2011.) 24The National Standard prescribes that for Category 3 employees the track safety health assessment for pre-placement , or where there has been a change of risk, the medical examination includes a drug screen. However, for periodic health assessments - what was sought on this occasion by Boral Cement - no drug screen is necessarily required, although additional health assessments may be implemented to meet specific occupational health and safety requirements from time to time. 25In his oral evidence Mr Cochrane had this to say: Mr Hatcher: ...The National Standard requests Category 3 workers to have a periodic health assessment...and this was a periodic health assessment that you thought was required for these workers, correct? Mr Cochrane: That is correct. Mr Hatcher: And that was what you asked the receptionist at the Marima Clinic to undertake, ie a Category 3 periodic health assessment? Mr Cochrane: I didn't say periodic. I said Category 3 medical. Mr Hatcher: And that's all you said? Mr Cochrane: Yes. Mr Hatcher: Are you aware that under the National Standard, the requirements for a pre-placement Category 3 are different from a periodic Category 3 test? Mr Cochrane: No. Mr Hatcher: And therefore when you arranged the tests, the person you spoke to would not have known whether it was a periodic health test assessment you were requesting or a pre-placement health assessment? Mr Cochrane: No. No. Mr Hatcher: ...You say as far as you're aware, the current National Health Standards require Category 3 workers to undergo drug and alcohol testing as part of their medical... Can I suggest to you that in fact the National Standards do not require drug and alcohol testing with respect to a Category 3 periodic health assessment? Mr Cochrane: Well, as far as I'm concerned, we send the - we nominate the Category 3 and Category 3 contains whatever RailCorp deem to be necessary. Mr Hatcher: Well, I suggest to you it has nothing to do with RailCorp because RailCorp don't come up with the health standards. You know that, don't you? Mr Cochrane: No. Mr Hatcher: You know that the health standards emanate from the National Transport Commission? Mr Cochrane: That is correct. Mr Hatcher: That RailCorp is not the regulator for rail safety in this State? Mr Cochrane: RailCorp provide the medicals for our rail safety workers as approved by the independent transport safety regulator. Mr Hatcher: Well RailCorp doesn't provide them. The Marima Clinic provide them. Mr Cochrane: But Marima Clinic are an approved RailCorp medical supplier. Mr Hatcher: Well that might be but you understand that RailCorp is not the regulator of rail safety in this State? Mr Cochrane: That is correct. Mr Hatcher: RailCorp is just another rail operator that operates under the same legislation that everybody else does? Mr Cochrane: That is correct. Mr Hatcher: And it's the independent safety regulator that regulates the industry? Mr Cochrane: Yes. Mr Hatcher: That's a separate entity from RailCorp? Mr Cochrane: Yes. Mr Hatcher: And they regulate it according to legislation, correct? Mr Cochrane: Yes. Mr Hatcher: And the health standards that emanate from the National Transport Commission? Mr Cochrane: Right. Mr Hatcher: Do you accept that? Mr Cochrane: Yes. Mr Hatcher: And, as far as you were concerned, you simply said to the person you spoke to at the Marima Clinic, do a Category 3 medical, that's what you said? Mr Cochrane: That is correct. Mr Hatcher: And you left the rest up to them to work out what that meant in terms of the legal requirements? Mr Cochrane: Well, yes, basically yes. 26To refer to RailCorp as "...just another rail operator...", as Mr Hatcher does in that cross-examination of Mr Cochrane, is stretching the point a bit: clearly, something of an understatement. But the safety for rail operations is not simply restricted to RailCorp alone but applies generally to all work on or around railways, including branch lines which are not necessarily part of the RailCorp network. Trains still obviously use those rail lines and then enter the RailCorp rail network. Moreover, as I will outline later in this decision, it appears that Mr Cochrane was not alone in his belief that a urine sample was required as part of a periodic medical examination of Category 3 employees. Certainly, that was the view of the clinic staff. THE ABORTED MEDICAL EXAMINATIONS 27On Tuesday, 22 March, 2011 Mr Thomson, Mr Roberts, Mr Chandler and Mr Gorman attended their medical appointments at the clinic. Mr Roberts, Mr Chandler and Mr Gorman were also called to give evidence in the hearing by Mr Hatcher . There is much confusing and conflicting evidence before me in this hearing between the witnesses called by Mr Hatcher and the staff at the clinic - Mrs Weeks, Mrs Helen Moloney, a practice nurse, and Ms Sandra Boulding, a pathology collector - who were called as witnesses by Mr Warren . Indeed, there is also some conflict in the evidence between the staff of the clinic itself in that respect. It is therefore necessary that I set out in some detail the conflicting evidence before me concerning Mr Thomson's conduct at the clinic and evaluate it. 28Mrs Moloney was to conduct the routine medical examination - testing hearing, vision and mobility, etc - of the four employees. Mr Thomson asked if he could go first as he had a medical appointment for physiotherapy later that day. Mrs Moloney commenced a medical examination of Mr Thomson, taking his blood pressure, testing his eyesight and weighing him. She was to perform the hearing test later in another room. 29Mrs Moloney then claimed she advised Mr Thomson that he was required to undergo an alcohol test. According to Mrs Moloney, Mr Thomson said: "This is bullshit and it is not necessary." 30And Mrs Moloney replied: "It's on the form and it is necessary." 31Mrs Moloney asked Mr Thomson if he had taken any drugs or consumed any alcohol in the last 24 hours and Mr Thomson replied that he had not. She then undertook a breath test to determine if there was any alcohol in his bloodstream, ie Mr Thomson was obliged to blow into a plastic mouthpiece, similar to the device used for the roadside testing for alcohol by police. Mr Thomson did not object to the breath test for alcohol. 32Mr Thomson blew into the machine and it registered a .03 result. To be fit for work a .02 reading is the limit. Ms Moloney claimed that she did not inform Mr Thomson of that result: nor did any other member of the nursing staff at the clinic, apparently (although Mr Longhurst was under the mistaken impression that one of the nurses at the clinic had actually done so). 33Mr Thomson, in fact, claimed that he asked Mrs Moloney: "How did I go?" 34To which Mrs Moloney responded: "Fine. We just have to do the hearing test." 35Mr Thomson conceded that Mrs Moloney had not told him the results of the test but he assumed that the results of the breath test were satisfactory. He was very surprised when he was later informed that he failed the test, claiming that he had not consumed any alcohol for some time before he gave it. 36To confirm a reading from a breath analysis, it is customary for a second reading to be taken approximately 15 minutes later. Without it, the .03 reading of Mr Thomson cannot actually be accepted as providing confirmation that Mr Thomson was unfit for work. In fact, the protocol established at the clinic is that, whilst Mrs Moloney takes the first breath test and the second reading, she does not convey the results of the tests to the person to whom she has administered the test. That is the role of Mrs Weeks. Events certainly overtook the opportunity for Mrs Moloney to obtain a second reading or for Mrs Weeks to tell Mr Thomson the results of the test he had taken. 37At that time Mrs Moloney took Mr Thomson to another room for the hearing test. After he completed the hearing test Mrs Moloney told him that he would now have to do a urine test and she escorted him to wait outside the treatment room. It appears that, as Mr Hatcher submitted, that was not strictly required for the Category 3 medical examination but Mrs Moloney was only following the paperwork provided her. 38Mr Thomson indicated in his evidence that he was "shocked" by what Mrs Moloney had said and he had a conversation with Mrs Moloney in the common reception area of the clinic (and, according to him, in the earshot of Mr Chandler and Mr Roberts who were in the reception area at that time - and presumably other patient waiting for their appointments), viz: Mr Thomson: I thought we were only here for hearing, mobility and eyesight. Mrs Moloney: According to this, you have to do a drug test. Mr Thomson: I have to inform you that we cannot do that unless you can give us a saliva test. I am not refusing a drug test but I cannot do a urine test. We are under directions from our combined unions that we cannot do urine testing. I am going to have a chat to these blokes over here. 39Mr Thomson then spoke to Mr Chandler and Mr Roberts. Mr Thomson claimed he said to them: "We have a problem here. They want us to do a urine test. We are under directions from the combined unions not to do any more urine samples." 40Mr Chandler recalls Mr Thomson saying: "Fellas, we're not doing a urine test." 41Mr Thomson's evidence in the hearing was as follows: Mr Warren: (Mr Roberts) says that you said at the clinic, in the company of Mr Chandler and himself: "We have a ban on the urine test". Mr Thomson: I had said that, yes... Mr Warren: And you expected them, as a result of saying that, that they wouldn't do the urine test, didn't you? Mr Thomson: No. In fact, they said: "What do we do?" and I said: "Look, I don't know." Mr Warren: I see. Before you said to them: "We have a ban on the urine test", they didn't ask you whether there was a ban or not, did they? Mr Thomson: No they did not. Mr Warren: You volunteered that information to them, didn't you? Mr Thomson: That was after I told them that they want us to do a urine test, that's correct. Mr Warren: And you volunteered to them, you told them that the union has a ban on the urine test, didn't you? Mr Thomson: Yes, I reminded them of that, yes. Mr Warren: And that was why you were telling them, or advising them, shall I say, not to do the urine test? Mr Thomson: No, I never advised them not to do it. Mr Warren: Well, why did you tell them the union has a ban on it? Mr Thomson: Because we do have. At that stage we did have. Mr Warren: Well, what did you hope to achieve by telling these two people that the union had a ban on the urine test? Mr Thomson: I was just making them aware of the union's stance on what was going on. Mr Warren: Why? Mr Thomson: Because we were being forced into a drug test. Mr Warren: Well, why did you tell them that the union had a ban on urine test? Mr Thomson: Because the union did have a ban on urine test. Mr Warren: And you expected them, didn't you, if you told them the union had a ban on the urine test, that they would adhere to that ban and not do the test, didn't you? Mr Thomson: I was - I would hope that they would take the union view, but they're independent men and they can make that decision themselves and they did. 42Mr Thomson asked Mr Roberts and Mr Chandler where Mr Gorman was and was told that he was at that time in the treatment room with Ms Boulding to provide a urine sample. Neither Mr Chandler nor Mr Roberts appeared concerned at that time that they were being asked to provide a urine sample. And certainly Mr Gorman also did not have any problems in giving one. 43In the written statement which formed the basis of her evidence Ms Boulding recorded: "....At the beginning of the drug screen I explained to Mr Gorman what was required in relation to the test. I advised him that we were required to fill out some paper work. I also said to Mr Gorman that I was required to supervise him in the bathroom whilst he gave a urine sample. I explained to Mr Gorman that the drug test was a legal process. Mr Gorman advised me that he had no objection, nor did he have any difficulties in relation to the process which I had explained to him. Mr Gorman signed a 'chain of custody form' in which he consented to the collection of a urine sample...." 44Ms Boulding accompanied Mr Gorman to the bathroom to ensure that the urine sample was obtained in accordance with the required procedure and stood in the bathroom whilst he was standing at the urinal. Mr Gorman provided the urine sample, handing it to Ms Boulding who left the bathroom and returned to the treatment room. Mr Gorman washed his hands and also returned to the treatment room. 45Ms Boulding then separated the urine sample into two containers. (The laboratory requires two samples for the purpose of testing.) A security seal is required to ensure the container is properly secure. She claimed that both she and Mr Gorman initialled the security seal on both containers. Mr Gorman cannot now recall doing so when he gave his evidence in this hearing. Ms Boulding then placed the urine samples in the bag, which she described as tamper-proof, and sealed it. 46At that point either Ms Moloney or Mr Thomson unexpectedly knocked on the door to the treatment room and, according to Ms Boulding, Mr Thomson entered the treatment room, standing just inside the room. Mr Thomson and Mr Gorman denied that he entered the treatment room. They claim that he stood at the doorway and Mrs Moloney stood either behind him or beside him for some time before she walked away. 47Mr Gorman described what followed in a written statement as a "conversation" between Ms Boulding and Mr Thomson along the following lines: Mr Thomson: We have been advised by the union not to do the urine test. Ms Boulding: It's too late, I've sent the paperwork. Mr Thomson: It doesn't mean anything because we are not doing a urine test. 48Mr Thomson indicated in his oral evidence that he could not be sure he had actually spoken in those terms but I am prepared to accept that he did. According to Mr Gorman, Mr Thomson claimed that he acted calmly and did not shout or swear. In fact, neither Mr Gorman, Mr Roberts nor Mr Chandler recall raised voices from anyone during the entire time they were at the clinic. Mr Roberts indicated in his written statement that: "...at no time during our visit to the medical centre did I witness Grant use bad language, threaten staff or remove any sample from the medical clinic. I observed the staff members to be calm and professional towards us and in no way upset or intimidated. John, Grant, Scott and I made a joint decision to leave without completing the test based on the union's position against urinalysis. At no time was I forced by Grant to leave..." 49Mr Chandler claimed in his written statement that neither Mr Thomson nor Ms Boulding looked agitated and they did not raise their voices. Mr Thomson indicated in his written statement that: "....I was not angry, nor shouting in my exchanges with the nurse, although I could detect that she was getting a little frustrated..." 50When Ms Boulding told Mr Thomson that the urine sample must be sent away for assessment, Mr Thomson claimed he said to her: "We do not want to get you into trouble." 51And he then asked Mr Gorman: "Scott, do you have a problem with that?" 52And Mr Gorman indicated that he did not have any difficulties with his urine sample being sent away for testing. At that point Mr Thomson said: "We are going to have to leave." 53And Mr Thomson and Mr Gorman left at that time. Mr Thomson denies that at any time did he or Mr Gorman touch Mr Gorman's urine sample which Ms Boulding retained throughout. And that is certainly Ms Boulding's evidence but she claimed that Mr Thomson demanded that she hand over Mr Gordon's urine sample, which she refused to do. 54Ms Boulding's recollection of the "conversation" between her, Mr Thomson and Mr Gorman also throws more light on the incident and, according to Ms Boulding, it was far from being the civilised exchange that Mr Thomson and Mr Gorman claim. Ms Boulding asserts that Mr Thomson spoke in a raised voice, saying: "I am the union rep. Stop what you are doing. He doesn't have to do a urine test." 55Ms Boulding claimed that she was in shock from Mr Thomson's outburst. She explained to Mr Thomson: "The doctor has requested this and the sample has already been done." 56And Mr Thomson replied: "Scott doesn't have to do the drug screen. I am the union rep and he doesn't have to do the drug screen." 57Ms Boulding's response was: "I am only doing my job." 58To which Mr Thomson replied in, a very aggravated tone according to Ms Boulding: "I don't give a fuck about your job! That is not to be sent away." 59Ms Boulding said: "It's a legal process. I have already finished the paperwork and it is sealed in the bag." 60Mr Thomson then spoke to Mr Gorman: "This is not happening. Get up, we are going." 61At first, according to Ms Boulding, Mr Gorman seemed unsure of what to do and he did not move. Mr Thomson repeated his direction to Mr Gorman: "Get up. We are going." 62And he then addressed Ms Boulding: "You are not sending that off. Give him back the sample." 63Ms Boulding responded: "I'm sorry. It's sealed and it's got to go. It's legal." 64Ms Boulding told Mr Thomson that he would have to talk to Mrs Weeks. She went to find Mrs Weeks and met her in the hall as she was leaving the archives section, which is located at the back of the clinic. 65Ms Boulding told Mrs Weeks that Mr Thomson had been abusive about the drug screen and that he demanded that she give Mr Gorman's urine sample back to him. Mrs Weeks claimed that Ms Boulding said to her: "I have just been abused by Grant Thomson. He was rude and intimidating. He said that he is not doing any drug screens and nor are any of them." 66Mrs Weeks found Mr Thomson standing at the reception counter and asked him if there was any problem. According to Mrs Weeks, Mr Thomson told her: "None of us are doing drug tests. This is fucking bullshit and we don't have to do them." 67Mrs Weeks replied: "If you are refusing to submit to a urine drug screen, then the medical cannot proceed." 68Mr Thomson 's recollections of the conversation he had with Mrs Weeks was as follows: Mrs Weeks: Under the RailCorp policy, we have to test for you urine. Mr Thomson: We are not RailCorp employees. We are Boral Cement employees. We are a private siding and we are only supposed to be tested for hearing, vision and mobility. Besides that we are a Category 4 siding. At worst a Category 3 siding. Mrs Weeks: I have been told by RailCorp what I have to test you for. Mr Thomson: Graham Cochrane should have told you all this. I cannot help if he is incompetent. Unfortunately, at this stage, we cannot do the urine testing. Mrs Weeks: We cannot do this testing then. 69Mrs Moloney had in the meantime returned to conduct a hearing test on Mr Gorman. She had completed the test on his right ear when she claimed Mr Thomson opened the door to the treatment room and, according to her, entered the room - "..burst in..." she claimed. He was agitated and appeared angry, shouting at her: "Stop what you are doing. I am union rep. We are leaving now." 70Mr Gorman got up and walked out of the room with Mr Thomson. Both Mrs Moloney and Ms Boulding overheard swearing as he walked away - "fuck", "bullshit", etc. Mr Thomson concedes that he may have used the word "bullshit" whilst at the clinic. He denies using the word "fuck". 71That evidence of Mrs Moloney is in conflict with the evidence of Mrs Weeks, however. According to Mrs Weeks, when she discovered that Mr Thomson and the other employees were leaving the clinic, she became concerned that Mr Gorman would miss his lift in a car back to the Marulan site - approximately a 30 minute drive away. Mrs Weeks claimed that she had knocked on the door to Mrs Moloney's treatment room and entered, saying: "It's all over. They have left. The medicals won't be finished because they are refusing to do drug tests." 72The whole test was therefore aborted - either by Mr Thomson (the evidence of Mrs Moloney) or Mrs Weeks (the evidence of Mrs Weeks). Mrs Moloney told Mrs Weeks that Mr Thomson had tested positive to the alcohol breath test, and that consequently he would have been unfit for work. She also stated that Mr Thomson had been rude to her and that Boral Cement "...would not want people like that working there anyway...". VARIOUS SUBSEQUENT CONVERSATIONS 73In the meantime, Mr Roberts had telephoned Mr Thomson's brother (Scott) as team leader and handed the telephone over to Mr Thomson who recalled the following conversation: Mr Thomson's brother: What is going on? Mr Thomson: We have a problem. They want us to do a urine test. We have a ban on urine testing. Mr Thomson's brother: Oh shit, yeah. Mr Thomson: What are we going to do? Mr Thompson's brother: I will have to tell Cochrane. You had better tell the other guys they had better come back to work. 74One of the principal grounds for Mr Thomson's dismissal contained in Mr Longhurst's letter of Wednesday, 20 April, 2011 terminating his services was that: "...without authorisation or approval from Boral Cement, you organised, arranged and coerced the other Boral Cement employees who were also attending the clinic for a medical examination, to leave the clinic part way through their medical examinations and before their medical examinations had been completed..." 75As I indicated earlier in this decision, Mr Thomson's brother was not called as a witness in the hearing by Mr Hatcher to provide corroboration that he actually had directed Mr Thomson to leave the clinic and return to work. That does raise an inference that the evidence of Mr Thomson's brother (on whether he actually had given instructions to leave the clinic and return to work) may not have necessarily supported Mr Thomson's claims in that respect [ Jones v Dunkel (1959) 101 CLR 298]. But, in any event, Mr Longhurst asserts in his evidence that at no time did Mr Thomson's brother, as team leader, have the authority to direct the employees to abandon the medical test and return to work. Mr Longhurst's oral evidence was as follows: Mr Hatcher: Mr Longhurst, is it your evidence that if the team leader told Mr Thomson and the others to return to work, that he had no authority to do so? Mr Longhurst: He didn't have the authority from us to do so. Mr Hatcher: And therefore that was an error on his part? Mr Longhurst: It would have been an error on his part. However, its - Mr Hatcher: But you see, assuming it's an error on his part, that doesn't mean that having received that communication from the team leader, there was some mistake in following what the team leader had said? Mr Longhurst: I understand what you're saying, Mr Hatcher, but if the team leader had, in fact, given that permission for them to leave, that would have been an error on his part. Having heard the statements from the witnesses on the day, it was my considered opinion that Mr Thomson had taken the decision to leave and stop doing the testing. I think he conferred with his team leader, but the decision was his. 76Mr Cochrane recalled in his evidence that Mr Thomson's brother telephoned him at midday on Tuesday, 22 March, 2011, saying: "The guys are coming back. They have stuffed up. They have not completed their medicals." 77According to Mr Cochrane, Mr Thomson's brother sounded disappointed and surprised by the situation. 78Mr Thomson's brother had also apparently contacted Mr Gillespie on Tuesday, 22 March, 2011. What was said between them would certainly be hearsay and not any evidence on which I may comfortably rely in their absence as witnesses in the hearing - and when in Mr Warren's cross-examination of Mr Thomson he spoke of that conversation between Mr Gillespie and Mr Thomson's brother, Mr Hatcher objected to that line of questions being put to Mr Thomson, naturally enough, on the basis that Mr Thomson was not a party to the conversation and could not therefore give details of it. 79Nevertheless, I allowed Mr Warren to put questions of that nature to Mr Thomson as to what he actually knew about such a conversation, ie what he may have subsequently been told by his brother about it. I regarded such evidence as admissible, at least to the extent that Mr Thomson could still give direct evidence of what his brother may have actually told him about the conversation, albeit not necessarily the accuracy of what Mr Thomson's brother told Mr Thomson [ Subramaniam v Public Prosecutor (1916) 1 WLR 965]. But that was as far as that evidence could go. 80And, in fact, Mr Thomson did know something about that conversation between Mr Gillespie and his brother because his brother had spoken to him about it. He understood that Mr Gillespie had informed his brother that the ban on urine testing did not extend to the medical examination of the Boral Cement employees involved in and around the rail network, viz: Mr Warren: Mr Thomson...your brother relayed that to you, didn't he? Mr Thomson: I'm not sure if he relayed it to me in that concept that you've said, but Andy advised Scott that the fellows should do the test, including myself, and Scott relayed that information back to me. Commissioner: He did tell you? Mr Thomson: Yes, but that doesn't mean Andy was right. Mr Warren: I haven't even got to whether Andy is right or wrong, Mr Thomson. Mr Thomson: Yes. Mr Warren: I haven't even got to that part yet. We're dealing with what your brother...may have told you. Mr Thomson: Well Scott told me - Mr Warren: Because he spoke to Andy Gillespie? Mr Thomson: Yes, that's correct. 81It is Mrs Weeks' claim that she had contacted Mr Cochrane and told him what had occurred. Mr Cochrane said: "You're joking. I will have a word to them and get back to you." 82And a short time later, Mr Cochrane telephoned Mrs Weeks again and told her that he was sending them back to the clinic. Mrs Weeks told Mr Cochrane: "Don't send them back. I'm not having Thomson back. It's all over. " 83Mr Cochrane's evidence is that it was he who actually initiated the telephone call with Mrs Weeks, asking her what had occurred. That is not the recollection of Mrs Weeks. In any event, Mr Cochrane recalled Mrs Weeks saying: "There was a problem with the attitude. Grant Thomson was abusive. He was confronting to my staff. He disrupted the testing and pulled the guys out of the testing and said they're not going to do it." 84Mrs Weeks told Mr Cochrane that Mr Thomson had failed the alcohol breath test, in any event, and that he was therefore unfit for work. She also told Mr Cochrane that Mr Thomson had been intimidating, rude and threatening to her staff. Mr Cochrane requested a meeting with Mrs Weeks and she agreed. 85In her evidence in this hearing, Mrs Weeks confirmed that she still banned Mr Thomson from the clinic in the future. She did so essentially to support her staff whom she claimed had "...scattered like mice..." at the sight of Mr Thomson on Tuesday, 22 March, 2011 and remained concerned over his conduct - a fairly damning indictment against Mr Thomson, I would think. To work on the Boral Cement rail line he will therefore need to obtain a medical clearance from some other available clinic. Since there was a AWU ban imposed on the customary accredited health provider, he may soon run out of clinics to which he may be sent. THE AFTERMATH OF THE INCIDENT 86Mr Cochrane spoke to Mr Roberts in the fettlers shed in the afternoon of Tuesday, 22 March, 2011 and asked him what had occurred at the clinic. He claimed that Mr Roberts replied: "We didn't do the urine test because Grant said not to and then we came back to work." 87And in the morning of Wednesday, 23 March, 2011 Mr Cochrane had a conversation with Mr Chandler outside the carpenter's shop and, according to Mr Cochrane, Mr Chandler responded to Mr Cochrane's request for information about what happened in the clinic on the previous day as follows: "Scott (Gorman) told us that Grant burst into the room where he was being drug tested and told him that he was not doing any drug testing. Grant then told us that we were not continuing with the medical testing. Grant was carrying on like a bit of a goose." 88Mr Chandler emphatically denied that he had described Mr Thomson as a "...bit of a goose..." (or a galah). In his written statement Mr Chandler claimed that when later he was confronted with the allegation that he had called Mr Thomson "...a bit of a goose...", he had denied the allegation, stating: "One of us is a liar and it's not me." 89Later in the morning of Wednesday, 23 March, 2011 Mr Cochrane approached Mr Thomson. Mr Cochrane recorded the following conversation with Mr Thomson in his written statement: Mr Cochrane: What happened yesterday? Mr Thomson: I'm sorry. I apologise for what happened. I fucked up. I am sorry. Mr Cochrane: What happened? Mr Thomson: I didn't think we were supposed to be doing urine sampling. Mr Cochrane: These are rail medicals. You do what you have to do. You have jeopardised everybody's medical compliance because they haven't been completed and you are not to work on the rail line because you failed the alcohol test. Mr Thomson: There's no way I would have failed the alcohol test. Can I go and apologise? Mr Cochrane: No. It's past that point. I'll see what I can do. 90As I see the evidence, that version of the conversation between Mr Cochrane and Mr Thomson is not challenged by Mr Thomson in his evidence or rebutted by Mr Hatcher . That suggests to me that Mr Thomson accepted that his conduct at the clinic on Tuesday, 22 March, 2011 at least warranted an apology from him. 91Also Mrs Weeks claims that sometime on Wednesday, 23 March, 2011 she spoke to Ms Boulding who said to her: "Yesterday, Grant Thomson barged into the examination room and demanded that I hand over a urine sample that I had collected. He was rude and intimidating. I said to him that I was not going to hand it over because it was going to be sent off to be tested." 92Mr Hatcher highlighted in his submissions some inconsistency between the evidence of Mrs Weeks and Ms Boulding on that conversation. It is Ms Boulding's recollections that such a conversation with Mrs Weeks actually occurred contemporaneously with the incident - which seems more likely to me. Ms Boulding does not recall any conversation along those lines with Mrs Weeks on Wednesday, 23 March, 2011. 93The meeting between Mr Cochrane and Mrs Weeks took place on Thursday, 24 March, 2011. Mrs Weeks indicated in the written statement she had provided as the basis of her evidence: "...I advised Mr Cochrane that Mr Thomson had been very abusive towards my staff on Tuesday, 22 March, 2011. I said to him my staff were distressed and unhappy about the events of Tuesday, 22 March, 2011 and that this was not the first time the clinic has had issues with employees from Boral. I said to Mr Cochrane that the clinic was not able or willing to do any further testing on Mr Thomson because he had failed his alcohol breath test, which meant that he was temporarily unfit for duty. I also said that Mr Thomson's intimidating and inappropriate behaviour was not going to be tolerated under any circumstances by me or the clinic. Mr Cochrane offered his sincere apology on behalf of Boral Cement. I reluctantly agreed to allow the other employees to return for their medicals on the understanding that they would be supervised by Mr Cochrane. I also felt that the other employees, particularly the younger ones, had been intimidated by Mr Thomson and were left little choice to leave the clinic when he told them to do so..." 94Mr Chandler, Mr Roberts and Mr Gorman (and Mr Byrne) ultimately returned for the medical examination at the clinic and renewed their medical examination, including providing a urine sample for assessment. Mr Cochrane drove them to the clinic for their medical assessment, including a drug and alcohol test, on Monday, 28 March, 2011. Mr Thomson did not return to be assessed in the clinic. I presume that his "track safety awareness card" has now lapsed and therefore he would not be able to resume any work on or around rail lines that I believed formed a part of his work for Boral Cement. And, as I indicated earlier in this decision, Mrs Weeks has effectively banned him from obtaining the necessary medical assessment to obtain a new "track safety awareness card" from the Marima Clinic. He will need that card and the medical examination on which it is based (with or without urinalysis) if he is to effectively resume working with Boral Cement performing the type of work he was formerly carrying out for it. THE DISMISSAL 95Mr Longhurst was called as a witness in the hearing by Mr Warren . He was first made aware of the incident on Monday, 28 March, 2011 and on Tuesday, 29 March, 2011 he met Mr Thomson. Mr Longhurst's recollection of the conversation was as follows: Mr Longhurst: I'm told you failed your breath test at the clinic last week and that the clinic staff have complained that you were abusive towards them. Mr Thomson: That is absolutely not true. If I had failed the breath test, how come I don't know about it? Mr Longhurst: I will be enquiring into the matter to find out more detail. How come Scott, John and Stinger (Mr Roberts) did not complete their medical tests? Mr Thomson: We are Category 3 rail workers and we don't need to undergo a drug and alcohol test. Mr Longhurst: Why not? Mr Thomson: I have proof of this - it's in the legislation. I'll bring you the paperwork tomorrow to prove it. Mr Longhurst: I will be investigating this further and we will discuss it when I have some more information. 96On Thursday, 31 March, 2011 Mr Longhurst again met Mr Thomson in his office and told him that he regarded the allegations against him as serious and that it would be in his interests to obtain a representative. Mr Thomson claimed that he had done nothing wrong. He indicated to Mr Longhurst that he intended to raise the matter with Mr Gillespie. In fact, Mr Longhurst contacted Mr Gillespie to arrange dates for a meeting. A meeting was tentatively arranged for Friday, 8 April, 2011 but was rescheduled to Wednesday, 13 April, 2011. It was attended by Mr Longhurst, Mr Cochrane and Ms Steenkamp. 97In the meantime, Ms Steenkamp had apparently forwarded a number of e-mails to various persons involved in the investigation of Mr Thomson's conduct. Two of those e-mails were made available by Boral Cement and provided to me in evidence by Mr Hatcher . In the first of those e-mails dated Tuesday, 5 April, 2011 Ms Steenkamp writes: "....Based on the circumstances at hand, the recommendation that I am putting forward...is that Grant Thomson be charged with gross misconduct and bringing the company into disrepute. Unless circumstances suggest otherwise, the sanction for gross misconduct would be termination..." 98And in a further e-mail on Wednesday, 13 April, 2011, Ms Steenkamp wrote: "...Unless there is something significant that materialises in Grant's response on Tuesday the original course of action will remain in place and Grant will leave on Tuesday. There is no doubt that the site will be called upon to walk on Tuesday. The potential risk is whether the union can muster support on the other sites for them to follow... The recommendation from Les (Mr Longhurst) and myself is, if necessary, to pursue this through the court system and to ensure that Grant does not return to Marulan, given the breakdown in the relationship..." 99Much must go unsaid about the unsatisfactory industrial climate which is described in Ms Steenkamp's e-mails but, as Mr Hatcher submitted it gives some support to his claim that Boral Cement was simply going through the motions of the meeting concerning the appropriate disciplinary action and that a decision had already been taken to dismiss Mr Thomson ahead of the meeting. Mr Hatcher described the conduct of Ms Steenkamp as a "...smoking gun..." to confirm that a decision had already been taken to terminate Mr Thomson's services and it was just a case of how to put that into effect and avoid and industrial complications and any successful legal challenge, such as in these proceedings - "...covering all the boxes...", as Mr Hatcher put it. 100And Ms Steenkamp's actions in investigating the incident may also have unintentionally tainted the evidence of Mrs Weeks to some extent. Mrs Weeks had provided a written statement as the basis of her evidence in the customary manner. She had been requested by Ms Steenkamp to provide a written statement and Ms Steenkamp actually sent her a draft for that statement which she had prepared after a meeting she had with her on Wednesday, 13 April, 2011. Mrs Weeks read the draft statement but refused to sign it. She wrote a memorandum in reply on Wednesday, 20 April, 2011 outlining her position. Then followed a number of telephone conversations between Ms Steenkamp and Mrs Weeks, ultimately culminating in the written statement which was prepared by Ms Steenkamp and which came to form the basis of Mrs Weeks' evidence in this hearing. 101Ms Steenkamp outlined the procedure she adopted in her evidence: Mr Hatcher: Now, another aspect of the investigation was - again, I'm putting to you that this demonstrates partiality and prejudgment - is that you yourself drafted a statement of evidence for one of the persons who was meant to be giving information for the course of the investigation, correct? Ms Steenkamp: I drafted a statement for them. Are you referred to Mrs Weeks? Mr Hatcher: Yes. Mr Steenkamp: What happened there? Mr Hatcher: Did you draft that statement? Ms Steenkamp: I drafted a - I provided her with a written account of what I believed to be a summary of the discussion that we'd had for Mrs Weeks to have a look at, because it was important that we got something signed back from Mrs Weeks before we had our final meeting with Mr Thomson. Mrs Weeks had a look at that on the basis that - Mr Hatcher: Well, I haven't asked you about that. I'll come to that. Ms Steenkamp, I want to put to you it's totally inappropriate for someone conducting an investigation to actually draft the words of a statement for somebody who's meant to be providing information to that investigation. You must understand that? Ms Steenkamp: I was not putting any words in her mouth, Mr Hatcher. At the end of the day, she could choose to sign or not sign it. At the end of the day, what I was doing was providing her with an account of the discussion we'd had. It was her choice to make as to whether she signed that one or whether she wrote her own, which she chose to do. Commissioner: Did she dictate these terms to you or you prepared it and discussed it with her and she was prepared to sign it? Did she amend it at all? Ms Steenkamp: She did. There were elements that she took in and there were elements she took out. Mr Hatcher: Well there were slabs of it that she incorporated in her statement word for word, wasn't it? Ms Steenkamp: That's her choice to make, Mr Hatcher. I just wanted to make sure that at the end of the day, when it came to Mr Thomson, given the severity of what had happened at the clinic, we needed to make sure that we had a confirmed statement in terms of their account of the situation. Mr Hatcher: Well, it's more than a description of the facts. It has a whole lot of spin. I want to put to you about how to characterise the events? Ms Steenkamp: I don't believe that to be the case, but Mr Hatcher, I don't do this as a profession. I'm a HR manager. I do other things as well and you know, I possibly have got some of the words wrong, but I don't attest to do this every day... 102I have to say that I regard that as a somewhat unorthodox procedure and it is, of course, open to the criticism which Mr Hatcher makes that Ms Steenkamp was coaching Mrs Weeks and that her evidence was only what Ms Steenkamp had intended her to say. That raises issues of procedural fairness in the ultimate dismissal of Mr Thomson. 103There are, in fact, some differences of a minor nature in the versions advanced by Mrs Weeks in her written statement and the evidence of the other witnesses, viz: * Mrs Weeks claims that it was she who entered the room in which Mrs Moloney was testing Mr Gorman's hearing and told him that he should leave, abandoning the medical examination but Mrs Moloney claimed that it was actually Mr Thomson who had stopped the medical examination of Mr Gorman. I prefer the evidence of Mrs Weeks on that issue. * Mrs Weeks claims she actually had contacted Mr Cochrane and told him what had occurred in the clinic but it is Mr Cochrane who asserted in his evidence that he had contacted Mrs Weeks, following his conversation with Mr Thomson's brother. I prefer the evidence of Mr Cochrane on that issue. * It is Ms Boulding's evidence that she raised her concerns with Mrs Weeks at the time of the incident in the clinic on Tuesday, 22 March, 2011. Mr Hatcher suggests that Mrs Weeks seems to be suggesting in her written statement that it was not until Wednesday, 23 March, 2011 that she spoke to Ms Boulding about the incident. Ms Boulding cannot recall any conversation with Mrs Weeks along those lines on Wednesday, 23 March, 2011. I prefer the evidence of Ms Boulding on that issue. 104However, these are minor matters, in my opinion. I have no reason to doubt the evidence of Mrs Weeks on the major issues of concern to me in this hearing and I still found her to be a credible witness in the hearing. DRUG AND ALCOHOL TESTING 105Of course, at the centre of Mr Thomson's dismissal is the question of the drug and alcohol regime of Boral Cement. As I understand the position, negotiations between the AWU and Boral Cement over the appropriate method to test for drugs and alcohol in the Boral Cement operations commenced several years ago. The AWU does not object to the Boral Cement employees being subjected to drug and alcohol testing. This issue in dispute between them - whether the drug and alcohol testing should be by urine samples (the position of Boral Cement) or oral swabs (the AWU position) - came before the State Commission (Grayson DP) for conference on several occasions following separate notifications of the matter as a dispute by the AWU and Boral Cement. The issue remains unresolved at this time. 106Mr Roberts indicated in his written statement: "...I am aware that approximately two years ago the AWU entered into discussions with Boral Cement to discuss whether the urinalysis could be replaced with saliva swab tests. Mr Thomson, our AWU delegate, advised the company had agreed to switch to swab tests when they were accepted under the Australian Standards and were 'legal'. Since this time we have been advised by our delegates that swab testing is now accepted under Australian Standards. However, the company has refused to move from urinalysis. We now have occasional 'urine bans' where we refuse to undergo urinalysis testing. Usually Mr Thomson advises when the urine ban is on and when it has been lifted. We do not oppose the drug testing, just the method of those tests. As far as I am aware, the bans are only lifted by order of the Commission...." 107In his oral evidence Mr Roberts confirmed that position and had this to say: Commissioner: So you are saying that you impose a blanket ban on urine testing from the union's point of view? Mr Roberts: Yes. Commissioner: But occasionally under directions from this Commission - Mr Roberts: Yes, we've got to lift it. Commissioner: You lift it, then you do? Mr Roberts: Yes. 108These proceedings are not, in my opinion, a suitable forum in which to argue the appropriate method to adopt for drug and alcohol testing - urine sample or oral swabs. I provided a detail assessment of those two separate methods, in the context of the requirements of the transport industry in my decision of Thursday, 23 December, 2010 in Holcim (Australia) Pty Limited v Transport Workers' Union of New South Wales [2010] NSWIRComm 1068 indicating (at paras.115 and 116) a preference, for the time being at least, in favour of urine samples over oral swabs with respect to the transport workers before me in those proceedings. That decision was based in part on the evidence before me that no method of oral swabs referred in that decision had to date received accreditation under Australian Standards. 109But in any event I regard it as totally inappropriate for there to be the on-again-off-again bans by Boral Cement employees on providing urine samples, lifted only apparently, on the evidence of Mr Roberts, on the directions of the State Commission (Grayson DP) from time to time. The employees should be aware that there are mutual obligations imposed on employees, as well as employers, under the Occupational Health and Safety Act 2000 . As far as the employees are concerned, s.20(2) of the OH and S Act provides: "An employee must, while at work, co-operate with his or her employer or other person so far as is necessary to enable compliance with any requirement under this Act or the regulations that are imposed in the interests of health, safety and welfare on the employee or any other person." 110A penalty is imposed under s.20(2) and bans on drug testing by the employees may leave them exposed to prosecution under s.20(2). It is not the policy of the AWU, as Mr Thomson understood it, which should dictate the appropriate approach to this issue but the obligations flowing from the O H and S Act. 111Moreover, as far as work on or around rail infrastructure, there is a strict regime for the random testing for alcohol and drugs by urine sample, mandated by legislation for any person engaged in or around rail infrastructure: the Rail Safety Act 2008 . Those random tests are conducted under the auspices of the Independent Transport Safety and Reliability Regulator [ITSRR] constituted under the Transport Administration Act 1988. Boral Cement is a rail transport operator within the definition provided in s.4 of the Rail Safety Act for its private siding (which is also defined in s.4). Therefore Boral Cement has responsibility for rail safety work which is extended under s.7(1)(f) to include: "...work on or about rail infrastructure relating to the design, construction, repair, modification, maintenance, monitoring, upgrading, inspection or testing of the rail infrastructure or associated works or equipment, including checking that the rail infrastructure is working properly before being used..." 112The upshot of that is that the Boral Cement employees engaged in such work will be subject to random drug and alcohol testing by way of urine sample conducted by the ITSRR. It is irrelevant that Mr Thomson and the other four employees were engaged in a Boral branch rail line and not therefore strictly on the actual rail infrastructure of the RailCorp: their work was consistent with that carried out by RailCorp employees performing the same type of work and Boral Cement, as a rail transport operator, is entitled to require its employees involved in rail safety work to be subjected to the required drug and alcohol testing regime. 113From the position of the clinic, Mrs Weeks believes that its task was to simply follow the procedure it had adopted in the past, ie to follow the directions given by the doctor and, as she understood it, the obligations imposed by RailCorp. She asserted that she has performed medical examinations on employees of Boral Cement (or Blue Circle Southern Cement) in the past and those medical examinations included drug and alcohol testing by urinalysis. That is the course the clinic invariably follows with RailCorp employees or employees of contractors for RailCorp. Mrs Weeks categorizes the Boral Cement employees who were the subject of the medical examination on Tuesday, 22 March, 2011 as RailCorp contractors. They were not . But as far as Mrs Weeks, Mrs Moloney and Ms Boulding were concerned, they simply followed the paperwork that was before them, as they were obliged to do, sending the results of the medical examination on to RailCorp. But if the Boral Cement employees were not RailCorp contractors the clinic did not, in fact, actually adopt the correct procedure for them. 114The AWU has, in fact, acknowledged that the Boral Cement employees involved in rail safety work have been excluded from the ban on urinalysis. For instance in proceedings before Grayson DP on Monday, 19 July, 2010 the AWU actually excluded the Boral Cement employees engaged in or around the railway lines, from the overall ban imposed on drug testing by urine sample and confirmed that such employees may be subject to random drug testing on that basis. 115It appears from the evidence before me that prior to the issue being raised following the incident on Tuesday, 22 March, 2011 in the clinic, the general view - not only by the clinic and Boral Cement but the AWU, if not apparently by Mr Thomson himself - was that the medical examination for rail operations would need to include a drug test by urine sample. But there nevertheless is a distinction which Mr Thomson makes between the random testing (conducted under the auspices of the ITSRR) and the medical examination (conducted at the clinic) and he claimed that he raised that issue with Mrs Weeks on Tuesday, 22 March, 2011 (although Mrs Weeks cannot recall him doing so). 116Mr Thomson explained that distinction in his evidence, viz: Mr Warren: I'm suggesting to you, Mr Thomson, that whether employees of the respondent at Marulan did a urine test for drugs and those employees were required by the company to work on the rail line, that it has not been...union policy that drug testing by urine sample for persons working on the rail line has ever been part of the union ban. What do you say to that? Mr Thomson: I say nothing to that. That's a matter not for me to decide. Sir, if someone from State Rail come in and done a random drug test for the railway, we'd do it. If the mines manager suggested somebody of being under the influence of drugs or alcohol, we'd do it: we'd allow that process to happen, because it is in legislation, both the Mines Act and in the Rail Safety Act. We wouldn't even try to stop that. So, if that answers your question? Mr Warren: You knew full well, didn't you, that the union did not have a ban on urine testing for drugs for employees who worked on rail, didn't you? You knew full well? Mr Thomson: No, sir. We went to the medical assuming we were getting tested for hearing, vision and mobility, in accordance with the National Standard. Mr Warren: No, you see, Mr Thomson, you knew it was a rail medical test, didn't you? Mr Thomson: We did. Mr Warren: And you knew that the union did not have a ban on employees who work on rail doing a urine test, didn't you? Mr Thomson: No, sir. We didn't know we were going to be tested for drugs or alcohol. We were assuming it was a Category 3, at worst, test we were going for and in accordance with the national health standards... It clearly sets out what has to be done. Now, that's black and white, I didn't make it up. 117Since the employees were medically examined as Category 3 employees, and as part of a periodic assessment, as Mr Thomson claimed and as Mr Hatcher submitted, they may not necessarily have been obliged to provide the urine sample being insisted upon by the clinic as part of their medical examination. However, I consider that it was more likely that whilst in the clinic on Tuesday, 22 March, 2011 Mr Thomson took the approach that he did because he had simply formed the view that the provision of urine samples by the employees would have been inconsistent with the ongoing ban on providing such urine samples. 118Mr Warren described Mr Thomson's claims in that respect as no more than "...legal spin..." - an afterthought on his part to provide some justification for his conduct in the clinic on Tuesday, 22 March, 2011. I do not agree. For one thing, Mr Longhurst gave evidence of the conversation he had with Mr Thomson on Tuesday, 29 March, 2011 in which he outlined his views of the requirements of the medical examination for Category 3 employees. Nevertheless, Mr Thomson did not stop his medical examination, and persuade the other employees to do the same, simply because he believed that, as Category 3 employees, it was unnecessary for the urinalysis. Clearly, he stopped the medical examination simply because of the ban on providing urine samples. It is not relevant, in my opinion, that Mrs Weeks actually brought the medical examination of Mr Gorman to an end. She did so because she believed she had no choice other than to terminate the medical examination. THE QUESTION OF FAIRNESS 119The principal task before me in this hearing is to to identify whether or not the termination of Mr Thomson's services was unfair, ie whether, using the actual language of s.84(1), Boral Cement had acted in a manner which was either harsh, unreasonable or unjust [ Busways v Johnson (1994) 55 IR 255 at p.261]. I f I conclude that the termination of Mr Thomson's services by Boral Cement was unfair in that context, I am required to determine the appropriate remedy to apply to him, with preference being given to reinstatement under s.89(1) or re-employment under s.89(2) over monetary compensation under s.89(5) [ Burge v BHP Steel Pty Limited (2001) 105 IR 325 at p.345 and Plummer v Stannard Brothers Launch Service (2005) 143 IR 111 at p.115] 120Firstly, there is the question of the .03 reading of the breath testing for alcohol. As Mr Hatcher noted in his submissions, that is not specifically referred to in the letter Mr Longhurst wrote to Mr Thomson on Wednesday, 20 April, 2011 as a reason for his dismissal. In his evidence in this hearing, Mr Longhurst indicated that his letter was not "...all inclusive in all of (his) thought processes......" but, as Cahill J - Vice President of the former State Industrial Commission indicated in Public Service Professional Officers' Association of New South Wales v Forestry Commission of New South Wales (1990) 39 IR 46 at p.52 , if an employee has been dismissed for specific allegations - and in this case it is the letter of termination which provides the basis for those specific allegations - to my mind, those allegations, and no other, properly form the point of inquiry. 121Moreover, as Ms Moroney conceded in her evidence, since there was no follow up of that single reading on the breath test with a further breath test fifteen minutes later, it cannot be established conclusively that Mr Thomson actually failed the breath test at all, as has been asserted against him. Mr Thomson was prepared to give a breath test and did so, notwithstanding the fact that the breath test, like the urinalysis, was actually beyond the scope of the medical examination. I would assume that he would not have done so if he believed he might not pass it. Therefore, any suspicions that Mr Thomson had actually deduced that he had failed the initial breath test and subsequently stopped the medical examination, not only for himself but his work colleagues, simply to create a smokescreen around his own concerns is without any foundation, to my mind. 122Ultimately, this matter turns on Mr Thomson's conduct in the clinic on Tuesday, 22 March, 2011. Frankly, the highly sanitised version advanced by Mr Thomson, Mr Roberts, Mr Chandler and Mr Gorman of Mr Thomson's conduct at the clinic on Tuesday, 22 March, 2011 is simply not credible, in my opinion, particularly when considered in the light of conduct which has been described in this hearing of another occasion when Mr Thomson has displayed similarly aggressive behaviour. 123Ms Bronwyn Darlington, formerly employed as a human resources manager for Boral Cement, who was called to give evidence in the hearing by Mr Warren , recounted an occasions when she was also involved in a consultative committee meeting in the middle of 2004 which included Mr Thomson concerning, she claimed, the Boral Cement drug and alcohol policy. The incident involving Ms Darlington apparently came before the Commission (Kavanagh J) following notification of the matter by the AWU. An agreement was reached at that time which included, among other things, Boral Cement providing Mr Thomson with anger management training. That has not apparently occurred, however. It is a pity that anger management training was not taken up by him. 124According to Ms Darlington, Mr Thomson became aggressive at the meeting, got out of his chair, leaned forward, slammed on the desk, pushing papers forward and swore - "...this is fucking bullshit..." and "...you can stick your corporate values up your fucking arse...". Mr Thomson denies that he directed those comments at Ms Darlington but that certainly is not Mr Darlington's recollection and she told him to calm down or she would not continue the conversation with him. Mr Thomson's evidence on that incident was as follows: Mr Warren: And you recall, don't you, that you had an argument with Ms Darlington? Mr Thomson: We were having a debate about a pay issue. Mr Warren: And you said: "They can shove it up their arse" with respect to company protocols. Mr Thomson: Yes, I was talking to my other union delegates and I definitely said that. Mr Warren: I suggest to you that at the time you said it, you stood up, you put your hands on the table, you looked directly at Ms Darlington and you said those words: They can shove it up their arse"? Mr Thomson: That is a total lie. Mr Warren: I see. Mr Thomson: I looked at my fellow delegates. I was seated at the time and I said it in a calm and quiet manner: "They can shove that up their arse" to what she had been suggesting. It was never directed at her. There was a full investigation and it went to Kavanagh J because we were worried that I was going to get terminated by it. And out of all them findings and having detectives involved or ex detectives that done the investigation, it was never proven that - because she accused me of - directly to her and telling - I was told that she told everyone that I said: "You can stick it up your arse" and that's what she said. 125And that is what Ms Darlington again states emphatically in her evidence before me. I have to say that I regard Mr Thomson's version of that incident as not particularly plausible. The words Mr Thomson chose to use are not words which would customarily be uttered in the calm and quiet manner in which Mr Thomson claims he used them. 126Mr Hatcher challenges the relevance of the evidence of Ms Darlington in these proceedings, noting particularly that the incident occurred over seven years ago. But, to my mind, past conduct always remains a relevant consideration in issues of this nature [ Re Clarke and the Metropolitan Meat Industry Board (1967) AR 16 at p.27]. As Sheppard J of the former Commission in John Lysaght (Australia) Limited v Federated Ironworkers' Association (1972) AILR Rep.517, a past act of misconduct: "...does not then disappear and become irrelevant when further misconduct occurs. It remains and makes up the continuing history and record of a man's service. That record may always be referred to for the purpose for which the company now points to it and the presence of incidents such as I have described will always be relevant to be weighed in the balance by an employer when he comes to consider whether or not a further breach or other act of misconduct should not bring about a dismissal..." 127Apart from that one incident in 2004, however, there are apparently no other incidents recorded on Mr Thomson's personnel records. A single act of bad temper, accompanied as it may be with regrettable and offensive language, does not necessarily warrant disciplinary action against any employee. The matter must be assessed according to the standards of men, not angels [ Jupiter General Insurance Company Limited v Andeshir Bomanji Shroff (1937) 3 All ER 67 at pp. 73 and 74]. But Ms Darlington's evidence does support the view that Mr Thomson has in the past adopted behaviour involving a particularly aggressive stance in his dealings with Boral Cement management, especially when he was acting in what he understood to be legitimate AWU business. 128That having been said, whilst swearing may constitute grounds for disciplinary action against an employee, and in certain serious cases the dismissal of the employee on its own, it is the context in which the allegedly offensive comments were actually made which provides the appropriate clue. As I indicated in my decision of Thursday, 13 July, 2000 in Gorman v Broken Hill Proprietary Company Limited [2000] NSWIRComm 1079 at p.19]: "...It is hardly surprising that the conversations of groups of men working together would involve colourful language which in another context may be offensive. BHP is running a steelworks and not a monastery. What may at one time have been regarded as offensive language seems in more modern times to be accepted as part of normal speech... Such language would not, to my mind, be grounds for dismissal unless it was the expression of an hostile or belligerent attitude to fellow employees and, more particularly, supervisory staff [ South Sydney City Council v Federated Municipal and Shire Council Employees Union (1989) 28 IR 363 at pp.365 and 366]..." 129And in my unreported decision of Wednesday, 31 July, 1996 in Seychelles v Linfox Distribution Group [Matter No.IRC 511 of 1996] I expressed similar views (at p.32), viz: "....I am prepared to accept that the conversations of groups of men working together in the trucking of goods will often contain colourful language, which may be regarded as offensive in another context. The transport industry is not conducted like a tea party. The evidence before me in this hearing establishes clearly that most...employees, both supervisors and drivers, use language of that type without meaning offence..." 130But the confrontation on this occasion occurred not between groups of men working together but with female nursing staff in the clinic and presumably other patients awaiting medical examinations - not particularly edifying conduct on Mr Thomson's part in a public place. Mr Thomson conceded in his evidence that at the clinic he "...might have come across as being strong and standing on his (digs) but at no stage was it crankiness or threatening...". Nor did he demean any person in any way. That is not the views of the nursing staff at the clinic, however. 131Mr Hatcher drew my attention to the decision of the Full Bench of the Commission (Walton J - Vice President, Schmidt J and Ritchie C) in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Department of Corrective Services (2006) 153 IR 125 and, in particular, the following comments by the Full Bench (at p.137): "....People do not, however, always behave entirely rationally when confronted with new and unexpected circumstances. On her unchallenged evidence, (the dismissed employee) was shocked and emotionally distressed when confronted with the requirement to submit to a targeted testing for drug use. She had this reaction, having herself recently alerted the Governor of the centre to the threat made by a former inmate that an allegation would be made that she was a drug dealer. All she could think about was the allegation that had been made that she was involved in criminal conduct: that she needed to clear her name and that submitting to the test at the centre would make the allegation public. Plainly, as was submitted, (her) response was not entirely rational, but her explanation of her conduct was a matter to which the decision-maker had to pay regard, in determining the appropriate penalty for her misconduct..." 132Mr Thomson asserted in his evidence that he was "shocked" that he was being requested to provide a urine sample in the medical examination. And, as Mr Hatcher submitted, strictly speaking he was under no obligation to provide a urine sample and may therefore have been within his rights to refuse to provide one (although I am satisfied that his work colleagues had no such difficulties in doing so until he stopped them). And, in my opinion, that still provides no excuse for his conduct which was far from acceptable. He did not just decline to give a urine sample. I am satisfied that in the process he abused the nursing staff at the clinic when they attempted to direct him and the other employees to provide one. 133Nevertheless, Mr Thomson's conduct has to also be seen in the context of his role as AWU delegate at the Marulan site of Boral Cement and his vociferous support for Boral Cement to move its drug testing regime from urine testing to oral swabs, which I accept was, generally speaking, AWU policy. In his evidence Mr Gorman conceded that Mr Thomson was "...very staunch on union matters..." and that he "...gets wound up about the union..." and gets emotional about it. The position of a trade union delegate is so often a thankless job - an intermediary between workers and management with the individual taking the heat from both sides. Mr Thomson described his role as AWU delegate as "...the meat in the sandwich..." and "...the voice of the people...", ie the employees whom he represents, a fairly accurate description in my opinion. 134Commissioner McCreadie of the former Australian Conciliation and Arbitration Commission in the Garden Island Dockyard Case (1964) 107 CAR 806 outlined what he believed to be the legitimate role of a trade union delegate (at pp.810 and 811), viz: "....The true function of a union delegate or shop steward is, of course a very important one in which he looks after the interests of his fellow members, mostly on minor matters which, if not dealt with satisfactorily, can lead to serious events. But, refusal of duty or other serious matters are not the prerogative of a delegate. The job delegate or shop steward is not a union official; he therefore should refer important matters, or those which he considers are likely to develop into serious matters to his union for attention. Such matters are properly dealt with by union officials with their wider experience, knowledge and understanding of union policy. A shop steward or delegate who understands his function and their limitations can, and most do, perform very useful work on behalf of his union and its members, and make a valuable contribution to good industrial relations in an establishment..." 135I conclude that if Mr Thomson had raised the matter with Mr Gillespie himself - as he should have done - the outcome of this incident may have been entirely different. Instead, he took the initiative himself. He was unwise to do so and in doing so he exceeded his authority as trade union delegate, in my opinion. 136The role of trade union delegate also comes with some protection to the occupant of the position to match the responsibilities of the position. For instance, in terms of s.210 of the State IR Act, it is an offence for an employer to prejudice an employee, including dismissing him, because, among other things, he is an elected representative of employees. Boral Cement management is navigating dangerous waters if Mr Thomson's dismissal flowed entirely from his conduct as an AWU delegate, no matter how unhelpful and obstructive Boral Cement management may have viewed him acting in that capacity [ Transport Workers' Union of Australia v CWS Transport Services Pty Limited (1990) 39 IR 8]. 137But, equally, Mr Thomson, as AWU delegate, will not be excused for conduct which for any other employee would be grounds for dismissal [the Homebush Abattoir Dispute Case (1966) AR 371 at pp. 385 and 386 and Public Service Association of New South Wales v Macquarie Generation (2004) 136 IR 8 at para.122]. In the Newcastle Steel Works Case (1961) AR 48 the Full Bench of the former Commission (Richards, Beattie and Kelleher JJ) commented in that respect (at p.66) as follows: "...While the Commission will be vigilant to protect the position of any delegate unjustly dealt with by an employer for legitimate activity on behalf of his union, it certainly will not regard delegateship as a magic cloak conferring on the wearer immunity from liability for wrongful actions..." 138These are all issues I have explored on a number of occasions in the past and the comments I have made, and the authorities I have referred to above have been frequently cited by me in earlier decisions I have made. In particular, in my decision of Friday, 25 July, 2001 in O'Brien v Linfox Limited [2001] NSWIRComm 1048 to which Mr Hatcher referred in his submissions, I commented (at p.35) that the fact that the dismissed employee was a trade union delegate, who had been involved in industrial action, was an ingredient in the dismissal and it was, to that extent, unfair for the employer to be influenced by that fact in deciding to terminate his services. I commented further (at p.17) that: "....I have no evidence before me to intimate that (the trade union delegate) incited (other employees)..into any industrial action...or that his conduct was anything other than that of a legitimate trade union delegate. If a trade union delegate is to be blamed for industrial action of the employees he represents, there must be something in the evidence to suggest that he personally caused that industrial action. The role of a trade union delegate is difficult enough without being used as a scapegoat for the actions of the employees he has been elected to represent..." 139And (at p.18) I had this to say: "...True it is that (the dismissed trade union delegate) should have acted more diplomatically, and with less of a temper than he invariably did. A cooler response to the problems which arose from time to time may have avoided some of the unnecessary industrial disruption that occurred. No doubt he presented some difficulties for... management in the performance of his role as...delegate. But...his dismissal on that basis must be regarded as harsh, unreasonable or unjust... Moreover, a dispassionate evaluation of the evidence before me would suggest that, whilst (the dismissed trade union delegate) has a volatile personality and loses his temper more than is appropriate, his conduct was not such as to justify his dismissal. For the most part, (his) conduct was directed to legitimate trade union business and he was not advancing a personal position..." 140Nevertheless, it seems to me that Mr Thomson may very well have crossed the line from legitimate trade union business to simply bullying and harassment of his own colleagues and, even more importantly, the nursing staff in the clinic. It is open to me to conclude from the evidence before me that Mr Thomson actually coerced those other employees to leave the clinic. I share the view expressed by Mr Warren in his submissions, that there actually was no democratic decision taken collectively by the employees on this occasion and that Mr Thomson clearly influenced the employees at the clinic in the decision they took to abandon the medical examination, leave the clinic and return to work. 141Mr Thomson's actions were without justification and he showed considerably less courtesy to the nursing staff at the clinic than I believe was required of him in the circumstances. But his conduct - misconduct, to my mind - was nevertheless the implementation of what he genuinely believed to be AWU policy and which no doubt remains AWU policy at this point of time. 142I note in that respect the decision of the Full Bench of the Commission (Boland J - President, Walton J - Vice President and Sams DP) in Sydney Ferries Corporation v Seamen's Union of Australia (2009) 186 IR 99. That case concerned, in part, a trade union delegate's conduct (directing other employees to refrain from selling tickets and "...to open the gates..." to a wharf area to allow passenger onto ferries and travel free of charge) as one of the reasons for his dismissal. That conduct was considered at first instance and on appeal as a reflection of a direction by a trade union. At first instance the dismissal was found to be harsh and the employee was reinstated in employment. That decision was essentially upheld on appeal. 143The Full Bench in Sydney Ferries Corporation v Seamen's Union of Australia commented in that respect (at para.68) that the trade union delegate was acting "...entirely under the direction and authority of his union to bring about a short stoppage of work..." and that he "...brought it to an end based on the same authority...". The Full Bench went on to say (at para.68): "....This is not to excuse the actions of the delegate who was bound to maintain industrial order in the manner described in the judgments of the predecessors of this Commission. But it plainly puts the conduct in context and perspective. The union delegate had responsibilities as an employee of the appellant, no doubt, but he has received advice as to a course of conduct from the very organization he is said, on these aforementioned authorities, to represent. To that may be added the inequity in the approach of the appellant in taking action against a single delegate and not against the organization that orchestrated the conduct or any other employee of the appellant..." 144To my mind, there are some fundamental differences between the situation described in Sydney Ferries Corporation v Seamen's Union of Australia and the current proceedings. It appears to me that Mr Thomson was acting as much on his own initiative - and in doing so he was clearly exceeding his authority as AWU delegate and the policy of the AWU, in my opinion. There was no clear direction from the AWU for his decision taken on Tuesday, 22 March, 2011 to not only cease his medical examination himself but to direct other employees to also do so. 145Indeed, if he had raised the matter with Mr Gillespie in the first place, as he should have done, rather than going off on his own, he would have been advised to provide a urine sample (albeit that such advice may not have strictly been correct). But equally it was clear that he was carrying out what he perceived to have been a general and longstanding policy of the combined trade unions to support oral swabs over urine samples for drug testing, albeit that there were obvious unresolved differences between the AWU and Boral Cement over that issue. 146But did Mr Thomson's conduct justify his dismissal or would a lesser penalty have been more appropriate for him. It is always open to an employer to chose a lesser penalty to dismissal, eg counselling, warning or a longer period of suspension without pay and it is also a legitimate function of industrial tribunals in this country to examine the severity of a particular penalty to an employee and to determine if, in all the circumstances, it is excessive: such an approach is, in fact, suggested by the word "harsh" in s.84(1). The Full Bench of the Commission (Fisher J - President, Hungerford J and Connor CC) in Pacific Power v Crump (1993) 48 IR 296 commented in that connection (at p.302) that the test was whether or not: "...the ultimate sanction of termination of employment was too severe a penalty..." 147And Watson J of the former Commission in Metropolitan Meat Industry Board v. Australasian Meat Industry Employees' Union (1973) AR 231 commented (at p.233) that: "...in some cases, the issue of unfairness has been resolved because of the way in which the employer has exercised his right to dismiss or because of the absence of adequate justification for dismissal. But even if there are grounds for terminating the contract of employment, it is still open to the tribunal to examine the severity or otherwise of the step of dismissal. The Commission, commissioners and committees have so acted in the past and have intervened to order reinstatement where because of mitigating circumstances or past good conduct, termination has been shown to be too harsh a consequence..." 148I conclude, having regard to all of the circumstances described to me in this hearing, that Mr Thomson's dismissal was too harsh a penalty for him in terms of s.84(1). However, my decision has been made with some misgivings. It is not my role in these proceedings to teach any person what I would regard as common courtesy when they are communicating with other persons, especially when he is outside the group of men with whom he customarily works, and particularly when speaking to females, but Mr Thomson would be wise to curb his temper in future and act with considerably more restraint and courtesy than I believe he showed in the clinic on Tuesday, 22 March, 2011. I am satisfied that Mr Thomson's conduct in the clinic on that day was entirely inappropriate by anybody's standards. And I would not wish the parties to believe from my decision to reinstate him in employment, that I condone his conduct: I do not. 149And if Mr Thomson is to remain in his role as AWU delegate at the site, I believe Boral Cement is entitled to expect that he will conduct his work and trade union business with considerably less aggression and more restraint than was evident in his attitude at the clinic on Tuesday, 22 March, 2011. It is not, of course, the role of the Commission to intrude into the internal workings of any trade union, but if Mr Thomson is unable to reach a higher standard in his conduct than he displayed on Tuesday, 22 March, 2011, he would be wise to consider in his own interests whether or not to relinquish his role as AWU delegate at the site. THE APPROPRIATE REMEDY 150As to the question of the appropriate remedy for Mr Thomson, I note that in my decision in O'Brien v Linfox Limited to which Mr Hatcher referred the dismissed trade union delegate had already found alternative employment since his dismissal and was content to remain in that work. His claim was confined to monetary compensation under ss.89(5) and (6) and consequently it was not necessary for me to consider the practicability of his reinstatement in employment. That is not Mr Thomson's preferred position in this hearing, however. He has found no alternative position since his dismissal. He seeks to return to work for Boral Cement. 151As I indicated earlier in this decision, Mr Thomson's reinstatement to his former job with Boral Cement must be conditional upon his obtaining appropriate medical clearance for his work which I believe centres to a certain extent on the rail line, ie a renewed of his "track safety awareness card". With his reinstatement in employment he would need to obtain one. His conduct at the clinic on Tuesday, 22 March, 2011, resulting as it has in a ban on him presenting himself for a medical examination there, has no doubt placed a barrier in him obtaining that necessary medical clearance to resume work there. But there are other clinics available for him to attend. 152Mr Warren opposes the reinstatement of Mr Thomson, arguing that if I concluded his dismissal was unfair, the circumstances were such that his reinstatement would be impracticable and I should confine the remedy available to him to monetary compensation under ss.89(5) and (6). I accept that a question of trust is essential in every employment relationship and it is clearly a matter which has to be weighed in the balance in assessing the practicability of reinstatement. It is a question of evaluating the situation in a commonsense way. But as the Full Bench of the Federal Court (Wilcox CJ, Marshall and North JJ) stated in Perkins v Grace Worldwide (Australia) Pty Limited (1997) 72 IR 186 at p.191: "...If the court were to adopt a general attitude that such a reluctance destroyed the relationship of trust and confidence between employer and employee, and so made reinstatement impracticable, an employee who was terminated after an accusation of wrongdoing but later succeeded in an application under the Division would be denied access to the primary remedy provided by the legislation. Compensation, which is subject to a statutory limit, would be the only available remedy. Consequently, it is important that the court carefully scrutinize any claim by an employer that reinstatement is impracticable because of a loss of confidence in the employee..." 153An employer should not be able to deny an unfairly dismissed employee the right to reinstatement or re-employment, the primary remedies under Part 6, by simply asserting, without anything in evidence to support the assertion, that the working relationship has broken down irretrievably and the resumption of work would be impracticable [ Hollingsworth v Commissioner of Police (No.2) (1999) 88 IR 282 at pp.341 and 342]. And Cahill J had this to say in New South Wales Public Service Professional Officers Association v Forestry Commission of New South Wales (at p.50): "...Industrial tribunals should examine with some rigour, and should not too readily accept, claims made on behalf of an employer who has been found to have treated an employee unfairly in the manner of termination of employment that there would be '...practical uselessness...' in attempting to re-establish the previous employment relationship...." 154No doubt there would be some level of friction in the restoration of an employment relationship between Mr Thomson and Boral Cement management upon his resumption of work with it, but not enough, in my opinion, to preclude his reinstatement in employment. 155In those circumstances, I propose to order Mr Thomson's reinstatement in employment with Boral Cement [s.89(1)] and confirm continuity in his employment [s.89(4)]. In particular, I have had regard to Mr Thomson's lengthy period of employment with Boral Cement and its predecessor - 21 years - and Mr Thomson's age and the likely prospects of him finding other suitable employment in the area in which he lives. However, I reject any claim for him to receive any compensation for loss of earnings from the date of his dismissal to the date of his reinstatement [s.89(3)]. His conduct still warrants censure, in my opinion, and I do not believe that he is entitled to recompense during the period he was been without employment. O R D E R 1. Boral Construction Materials Limited shall: (a) reinstate Mr Grant Thomson in employment as environmental officer at the Marulan site: (b) take his employment not to have been broken by his dismissal. 2. This order shall take effect on and from Thursday, 1 September, 2011. P J CONNOR Commissioner LIST OF WITNESSES Chandler, John fettler Cochrane, Graham manufacturing and despatch superintendent Boulding, Sandra pathology collector Darlington, Bronwyn former human resources manager Gorman, Scott plant operator Longhurst, Les acting operations manager Moloney, Helen registered nurse Roberts, Paul fettler Steenkamp, Kate organisational development manager Thomson, Grant applicant Weeks, Kim practice manager/nurse 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. Decision last updated: 01 September 2011