Transport Appeal Boards New South Wales Medium Neutral Citation: Dickson v RailCorp [2012] NSWTAB 9 Hearing dates: 07/03/12 Decision date: 29 March 2012 Before: Ritchie C (Board) Decision: Catchwords: Public Service-discipline -rail employee-Breaches of Code and policies-positive random drug test-first time failed a drug test- shunter-tested positive for cannabis-dismissed-Board found that employee had ingested cannabis by mistake therefore had not breached Code-dismissal set aside-reinstated-no back pay of wages. Category: Principal judgment Parties: Mr R J Dickson(Appellant) Rail Corporation of NSW(Respondent) File Number(s): TAB 1493 of 2011 DECISION Introduction 1Mr R Dickson ( the appellant) filed a Notice of Appeal -Transport Discipline on 14 November 2011. In his original Notice of Appeal the appellant ticked that he was not guilty of the charge. This was varied to guilty on the day of the hearing. 2The appellant was employed by Rail Corporation of NSW ( the respondent) as a Shunter. He had been employed by the respondent since 1984 and was terminated effective 11 November 2011. Issue(s) 3On 18 April 2011 the applicant returning from a period of two weeks leave and was subjected to undergo a random drug test and provided a urine sample. 4The result of the test was that the urine sample returned a positive reading to Cannabis Metabolites at a level of 41 ug/L which is above the cut off level of 15 ug/L as prescribed by the Australian Standard AS/NZS 4308:2008. Respondent's and Appellant's Cases 5In their evidence the respondent produced one witness Doctor Armand Casolin the Chief Medical Health Officer. In an email that he directed to Ms Yolande Ruto, the respondent's investigator in this matter, he stated the following: Passive smoking would not account for Mr Dickson's result. It is possible to return a positive test to THC after ingesting marijuana in food, however it is unlikely that this would occur with no warning as the literature describes marijuana in food as having an unusual taste and additionally , a person who is unaccustomed to using marijuana would experience symptoms of acute intoxication after eating it in food. My advice is that the alleged mechanism of exposure is not plausible. 6The doctor was subject to cross examination. Doctor Casolin confirmed that the reading could not be put down to passive smoking as the reading was far to high. With respect to the ingestion of marijuana he stated that it can lead to a positive result. Also if the person is not used to it, they would feel a euphoria. He also stated that it has a particular taste so it alters the taste of the food. If the cannabis had been put in the food it would be visible and depending on the other ingredients it would alter the taste but this would depend on what the other ingredients were and how over powering the other flavours were. In that the appellant believes that he ingested the cannabis on 16 April 2011 and his positive test occurred two days later, the Doctor stated that he would have had to ingest the same quantity as what is in a cigarette. 7The Doctor stated that he was aware that the appellant had a positive breath test for alcohol in 2009 and that he returned to work through the rehabilitation program. He had about four medical assessments during this program. There was no history of the appellant taking cannabis or illicit drugs. 8The Doctor also stated that if the ingestion was truly accidental then the appellant would not have breached the respondent's drug and alcohol policy. 9In cross examination the Doctor accepted that if the appellant was intoxicated at the time that he ingested the cannabis it would affect the perception of the appellant. He also accepted that if the appellant went to bed within 30 minutes of consuming the pasta then this would also affect the ability of the appellant to notice acute intoxication of marijuana. He also accepted that if the appellant's partner had commenced counselling for her addiction to marijuana then that would increase the appellant's ability to maintain a drug free environment. He also accepted that the other herbs that Ms Bailey had put in the sauce would certainly disguise the presence of it. 10With respect to the quantum required for such a reading the Doctor said it was difficult to be precise as one would have to take into consideration how potent the marijuana was. 11The appellant provided two witnesses. Mr Dickson stated that on the evening of 16 April 2011 he had consumed approximately six beers. His partner of twenty years Ms Bailey was in the kitchen area of the room in their home smoking and preparing her cannabis and also in the same area preparing the sauce for the pasta. He said that the preparation area for the ingredients that she had chopped up for the sauce and her cannabis was on a small bench approximately one metre from the stove. He accepted that Ms Bailey was a " messy " person. He accepted that there was a risk of the cannabis getting mixed up with the food. 12 He did not like Ms Bailey smoking and preparing her cannabis in the house but on this night he did not want to have an argument with her over the issue. At this time Mr Dickson was in the lounge room which forms part of the same room as the kitchen with a bench separating the two areas. He stated that during this time he went in and out of the lounge/ kitchen room to another room to use his computer. He stated that he did not knowingly smoke or ingest any illicit drugs at any time in the lead up to the positive test on 18 April 2011. He stated that he had previously submitted to many drug tests and had never tested positive. 13He stated that his partner Ms Bailey was a frequent smoker of cannabis up to 15 cones a day. He said that he did not like her smoking and when at home she prepared and smoked her cannabis in the bathroom with the fan on. What happens when he is at work he does not know. 14He said that he had been subject to about six random drug tests in the last five or six years since the testing began. He had advised the respondent during the investigation that he had been a casual user of cannabis many years ago and had last used it 7 or 8 years ago before the drug testing came in. 15He now makes sure that Ms Bailey does not leave as much mess around in the bathroom, that she smokes in the bathroom with the fan on and she never comes out to the kitchen with it. 16He stated that in discussions with Ms Bailey she told him, some time after the incident, that she may have caused him to ingest cannabis when she was preparing the sauce for the pasta. He did not know of any other way that he could have produced a positive reading. 17Since his termination the appellant has not been able to find employment. 18Ms Megan Joy Bailey stated that she is a medical receptionist and has been the partner of the appellant for 20 years. She stated that she has been a user of cannabis for many years. She advised that she has reduced her use given the professional and personal support she is now receiving. In evidence she stated that she had not used for the previous 9 days. 19She stated that on the night of 16 April 2011 she and the appellant had a few drinks and she prepared her cannabis on the kitchen bench. She at the same time was preparing the diner meal. She was aware that as she chopped up the cannabis some of it was on the bench. In her view some of the cannabis most likely got into the food from the bench top. This was not her normal process as it was contrary to what the appellant wanted. On that day she said she was depressed as she had received news that a friend if hers was pregnant. This upset her as she and the appellant had been trying to have a child for some time. 20When the appellant tested positive to cannabis at work she was aware that he had not used it and the only explanation was that the spilt cannabis on the kitchen bench had got into the pasta sauce. She stated that she has suffered from overwhelming feelings of guilt because of her carelessness and the enormous impact upon the appellant and herself lives both financially and emotionally. 21She advised the appellant some time after the test results had been known about the kitchen spill. She could not be specific with respect to the quantum of cannabis she spilt. Considerations and Decision. 22It was the respondent's submission that as a consequence of the evidence from Doctor Casolin that the reason for the reading being attributed to passive smoking should be dismissed. With respect to the applicant ingesting the cannabis by mistake, then the quantum would have to be about the same as a cigarette depending on the potency. 23 If the Board accepted the appellant's submission that the ingestion was accidental then the appellant was reckless to allow what had occurred in the kitchen on the night of 16 April 2011. The appellant described Ms Bailey as "messy" and therefore should have been aware of the ramifications. 24It was the appellant's submission that Ms Bailey on the night in question in error allowed a small amount of cannabis to be cooked in the pasta sauce and therefore resulting in the positive test two days later. She gave evidence that she was uncertain as to how much she spilt. Ms Jamieson for the appellant submitted that the evidence of Doctor Casolin was that intoxication could affect the appellant's ability to taste and to detect acute intoxication of marijuana in that he had consumed 6 beers that night. 25The issue in this case is that on 18 April 2011 the appellant was drug tested and found positive for cannabis. The evidence of both the appellant and Ms Bailey was that two days before Ms Bailey had spilt some of her cannabis that she had been preparing onto the kitchen bench. On that same bench she prepared various herbs to be placed into the sauce for cooking for a pasta sauce. 26The evidence of Doctor Casolin was that because of the state of intoxication of the appellant that night it would have been possible for the appellant not to have noticed either the different taste or the effects of consuming it. It is my view that seeing that the appellant went to bed 30 minutes after consuming his dinner it would be understandable that the appellant not recognise that something was amiss. 27In considering the evidence of Ms Bailey I have noted that she was upset on the night. She also admitted that she had been drinking. Her evidence on the degree of how much she spilt on the kitchen bench was vague. I have also noted that the appellant had described Ms Bailey as" messy" when she prepares her cannabis. 28In considering all the evidence in this case it is my finding that on the balance of probability, the appellant did inadvertently consume the pasta dish with the sauce, the ingredients of which had been prepared on the same bench that Ms Bailey had used to chop up her cannabis. In reaching this finding it follows that the appellant did not breach the respondent's Code or policies. In reaching this finding I have taken into consideration the evidence of all three witnesses, noting the comments of Doctor Casolin with respect to the consumption of alcohol at the same time and the resultant inability of the appellant to recognise what had occurred. 29It is also my finding that as Ms Robinson submitted, the appellant was reckless in not recognising what could occur in the kitchen that night, taking into consideration that Ms Bailey was upset and that she had a reputation for being "messy". Whilst I will order the reinstatement of the appellant I will not order back pay for the period between his termination and his reinstatement. 30I have also recognised that this is the first occasion that the appellant has breached the Policy with respect to drugs even though I have found it was by mistake. 31 Also I have taken into consideration the evidence of Ms Bailey and her remorse in the ramifications of her actions. I believe that the environment that the appellant now lives in would not lead to a repeat of this incident. Order(s) 32In relation to the appeal( TAB 11/ 1493) the Board makes the following orders: 1. The appeal is allowed; 2. The decision of RailCorp to dismiss Mr Dickson is set aside and he is reinstated to his position of Senior Shunter at his previous location ,effective within 14 days from the date of this decision. 3. The continuity of Mr Dickson's employment with RailCorp is taken not to have been broken by the decision to dismiss him. D.Ritchie Commissioner DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2012