Transport Appeal Boards New South Wales Medium Neutral Citation: James v RailCorp [2012] NSWTAB 27 Hearing dates: 6 July 2012 Decision date: 30 August 2012 Before: Bishop C (Board) Decision: Appeal disallowed Catchwords: PUBLIC SERVICE - discipline - rail employee - breaches of Code of Conduct - failed drug test - some admissions made long term user - stopped drug use to gain employment - ongoing drug use - reliance on personal stressors - employer's rehabilitation program successfully completed - misconduct found - dismissed - reinstatement and back pay sought HELD - rehabilitation acknowledged - misconduct extremely serious - aware of policy on engagement - knowingly breached drug and alcohol policy repeatedly - rehabilitation only due to failed drug test - not previously sought - mitigation not sufficient to overcome seriousness of misconduct - dismissal warranted - appeal disallowed. Legislation Cited: Occupational Health and Safety Act 2000 Transport Administration Act 1988 Transport Appeals Board Act 1980 Transport Administration (Staff) Regulation 2005 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 Tauia v RailCorp [2011] NSWTAB 27 Walters v RailCorp [2012] NSWTAB 3 Category: Principal judgment Parties: Peter James (Appellant) Rail Corporation of NSW (Respondent) Representation: Mr B Edghill Rail, Tarm and Bus Union NSW (Appellant) Ms A Baxter Rail Corporation of NSW (Respondent) File Number(s): TAB 180 of 2012 DECISION Introduction 1Mr James commenced employment with RailCorp and/or its predecessors on 29 October 2007 as a CountryLink Reservation Sales Agent. He held this role at the Newcastle Call Centre on a permanent part time basis at the time of his dismissal. 2On 4 April 2012, Mr James was notified by RailCorp that he was dismissed for breaches of the RailCorp Code of Conduct (the Code) and the RailCorp Drug and Alcohol Policy (the Policy). 3On 5 April 2012, Mr James lodged an appeal in respect of his dismissal. On the Notice of Appeal he indicated a plea of "Guilty". 4The matter was listed for disciplinary conciliation before Commissioner Tabbaa on 2 May 2012 at which time conciliation took place. As no settlement could be reached between the parties, directions were issued as to the filing and exchange of written cases and statements pursuant to Practice Note 22 and the appeal was re-allocated to the Board as currently constituted and set down for hearing on 6 July 2012. 5RailCorp presented its case first in accordance with s.16(1) of the Transport Appeal Boards Act 1980. Issue(s) 6Mr James pleaded guilty to the charge against him and sought that the penalty be set aside. It is therefore the Board's task to determine the appropriate penalty to be imposed in all the relevant circumstances. Background and Chronology 7The following Background and Chronology has been drawn from the evidence and written submissions before the Board as filed by the parties. 8On Wednesday 15 June 2011, Mr Ricardo Fredericks, RailCorp Testing Officer, attended the CountryLink Call Centre at Newcastle to conduct random urine drug testing of employees. Mr James underwent a urine drug test at approximately 10am, after which he made an admission to Mr Fredericks and his supervisor to using Cannabis. The urine drug test was positive, returning a reading for Cannabis of 1053 ug/L (Exhibit 1-B2). 9Mr James returned to his duties following the random urine testing and was not suspended at any time, however his part time work of 20 hours per week was subsequently rostered on a Monday to Friday basis rather than a seven day roster up until 18 December 2011. 10The positive test result was referred to the RailCorp Investigations Unit (RUI) and on 1 July 2011, Mr John Sharp, Investigator with the RUI sent a letter to Mr James setting out the allegation below, requesting a written response within 14 days and also attaching a copy of the RailCorp Discipline Policy, the Code and the Policy (Exhibit 1-E4): On 15 June 2011, at or about 0930hrs at the CountryLink Call Centre, Wharf Road, Newcastle, you undertook a random (urine) drug test. The resultant test was positive to D9 - THCCOOH (Cannabis Metabolite) at a level of 1053 ug/L. 11Mr James responded to the allegation by letter of 26 July 2011. He admitted to the allegation, stated that it was a serious error of judgment that would not be repeated. He also stated that he informed his manager on the day of the test that it would be positive as he had been using cannabis as a relaxant to cope with issues in his personal life. Over the previous 12 months he had "experienced stressors" in his private and family life, including his mother being diagnosed with cancer and undergoing major surgery. He had sought medical treatment from his GP to work through his personal issues (Exhibit 1-E5). 12On 28 July 2011, Mr Sharp wrote to Mr James and invited him to attend a voluntary disciplinary interview (Exhibit 1-E6). Mr James declined the invitation by email dated 23 August 2011 (Exhibit 1-E7). Mr Sharp subsequently found the allegation against Mr James to be substantiated and on 9 September 2011 forwarded his Investigation report to the Disciplinary Review Panel (DRP) for consideration (Exhibit 1-E). 13On 26 September 2011, the DRP convened to consider the allegation and finding. The DRP referred the matter for further internal enquiries to Dr Armand Casolin, Chief Health Officer (Exhibit 1-F) and Sally Hindmarch, Drug and Alcohol Case Manager (Exhibit 1-G). Mr James was also afforded an opportunity to provide further medical information about matters he had raised in mitigation (Exhibit 1-HI). The DRP re-convened on 27 February 2012 to consider the responses to their enquiries and made preliminary recommendation that Mr James should be dismissed. 14Mr James did not respond to the DRP's request to provide further medical evidence in support of the matters he had raised as he did not receive the DRP's letter. 15The following medical Reports concerning Mr James were prepared for RailCorp and before the Board (Exhibit 2-E to F): 30 October 2011 - Confidential Psychological Report, Kelly da Costa, Principal Clinical Psychologist; 8 December 2011 - Confidential Psychological Report, Kelly da Costa, Principal Clinical Psychologist; and December 2011 - Assessment by Dr Sarah Moss, Executive Health Solutions (a RailCorp Authorised Medical Practitioner). 16On 21 December 2011, Mr Rob Dalton, Manager, Case Management Business Partnering Division wrote to Mr James advising that as a result of satisfactory reports regarding his ability to comply with RailCorp's drug and alcohol policy his return to work program was approved. His return to railway safety work was subject to targeted drug and/or alcohol testing for at least six months, and other conditions including continued attendance at rehabilitation, undergoing random drug/alcohol testing and compliance with RailCorp policies (Exhibit 2-D). 17On 2 March 2012, Mr James acknowledged that he had received a letter from RailCorp dated 10 August 2011 informing him that a preliminary view had been formed that he be dismissed. He was invited to provide submissions in relation to RailCorp's preliminary view within 14 days (Exhibit 1-JK). 18By correspondence dated 12 March 2012 Mr James provided a response to the preliminary view in which he made the following relevant submissions (Exhibit 1-L): When he first tested positive he was in denial that he had issues with marijuana; As time passed he had become free from the effects of the drug; To address his personal issues he had attended a number of counselling sessions with his family GP and been prescribed anti-depressant medication over a six month period; and His mother and wife have had successful outcomes from surgery and those problems were now behind them. 19The DRP reconvened on 23 March 2012 to consider Mr James' response and made a final recommendation of dismissal. On 4 April 2012 Mr James acknowledged receipt of RailCorp's letter of the same date informing him that he was dismissed effective 4 April 2012 (Exhibit 1-M). Evidence 20RailCorp's evidence was contained in the Investigation Report (Exhibit 1- E) which included, inter alia, relevant reports concerning the drug testing undertaken; the various letters exchanged concerning the Allegation and the disciplinary process and outcome; the Code of Conduct; the Drug and Alcohol Policy; relevant extracts from the OH&S Act and Australian/New Zealand Standards; emails from Dr Armand Casolin and Sally Hindmarch; Mr James' Ellipse record; his Position Description and statements from Mr Ricardo Fredericks, Senior Testing Officer, and Mr Sharp, the Investigator, neither of whom were required for cross examination. 21Mr Fredericks stated that when he spoke with Mr James he did not show any signs of being under the influence of drugs. He also confirmed that Mr James made an admission to using cannabis ("smoking a few joints") to both himself and his supervisor. 22Dr Casolin confirmed in an email to the DRP on 26 September 2011 that the test result for Mr James "is quite high and strongly suggestive of regular use as implied in the above description by Mr James". 23Sally Hindmarch, RailCorp's Drug and Alcohol Case Manager, also responded to the DRP's request for further information by email of 6 October 2011 and indicated that Mr James had attended two counselling sessions with three more to go. He had undertaken 11 urine drug screens since the original 15 June test and tested negative to 6 urine drug screens. She also attached a Report from Dr Kate Moss (dated 5 July 2011) and indicated that "Peter James is of the opinion that he has done nothing wrong and believes that when he attends work, he is not under the influence of cannabis". 24The Report of Dr Moss noted that Mr James said he started smoking cannabis aged 20 and that he "always enjoyed relaxing in the weekends and having a smoke". A few months previously due to feeling depressed (with symptoms noted) he had increased his cannabis use to one or two joints during the week and his usual six joints over the weekend. He did not believe these symptoms affected his attendance or performance at work. He did not believe he had a problem with cannabis and was motivated by his job to become abstinent. 25She indicated that Mr James had reported that there were periods when he stopped smoking cannabis (e.g. away on holidays) and also when he applied to work for RailCorp he was aware of the requirement to be drug free and said "I knew I was going for a job and I stopped for a month or two to pass the drug test". She noted he said he had two big days of smoking cannabis on 13 and 14 June. 26In her summary Dr Moss noted: Mr James has a long history of cannabis dependency. He continued to smoke cannabis regularly while employed at RailCorp for the last 3 1/2 years despite knowing he was breaching the policy. He does not believe he will have difficulty remaining abstinent from cannabis however in my opinion he will most likely remain abstinent for several months but will remain at risk of relapse. To reduce the risk he will need regular targeted drug testing for at least a year. I recommend you refer Mr James for drug counselling. I also recommend you arrange targeted drug testing about every two weeks. Mr James is not currently fit for rail safety work. He is fit to attend alternative duties. 27Mr James stated that before commencing work at RailCorp in 2007 he was employed by Telstra and its predecessors for 27 years. 28He stated that prior to taking the test on 15 June 2011 he declared to his manager that he believed he would fail the test because he had smoked marijuana recently. He did not believe he was impaired on that day and did not believe he had ever come to work under the influence of marijuana or that marijuana use had affected his work at any time. He admitted that he had made a serious error of judgement and submitted to the test. 29He stated that after submitting to the test he went back to work and continued his duties and was not taken off work at any time as a result of admitting to drug use or as a result of the failed test. 30He confirmed that his hours were reduced to the minimum of 20 per week to be worked on week days with no shift penalties and no weekend shifts. He had previously worked 20 hours over a seven day roster. He worked the 5 day roster until 18 December 2011. 31He had explained the circumstances surrounding his marijuana use and the failed test in two separate letters provided to RailCorp as part of their investigation. He confirmed that the contents of those two letters were true and accurate. 32He stated that he had not received the RailCorp letter of 29 September 2011 seeking further medical evidence from him. The first time that he saw that letter was when he received RailCorp's written case for the hearing. He had attached to his statement a letter from his mother's doctor in relation to the medical problems she was facing at the time. RailCorp had also asked for evidence concerning his son but he had not provided any information as his son wished to maintain his privacy and Mr James respected that. 33Mr James believed that he had learnt a lot about his mistake through the successful drug and alcohol counselling program that RailCorp put him through. Through this program he had demonstrated that he understood the mistake that he made and he also demonstrated that he was able to abide by RailCorp's policy and attend work drug free. 34Mr James stated that he had received a letter from RailCorp's Rob Dalton dated 21 December 2011 which stated that RailCorp was satisfied with his progress and said that he could return to rail safety work. He was not a rail safety worker and did not conduct any rail safety work in his job, he worked on a phone in a call centre. He had never missed any work as a result of the test in any event. He believed that this letter showed RailCorp was happy with his progress in the program. It came as a shock to him when he was later dismissed after receiving this letter. 35Mr James also attached copies of the medical Reports that were conducted as part of a program he completed. He had attended meetings and was reviewed by both Dr Sarah Moss and Psychologist Kelly da Costa. The Reports showed that he had successfully completed the programme and was capable of complying with RailCorp's Drug and Alcohol policy. 36Mr James stated that since failing the test on 15 June 2011 he had not smoked marijuana. Since his dismissal from RailCorp he had been looking for work and applying for jobs but had been unsuccessful. He was due to turn 57 in August and believed that his age had counted against him when applying for jobs. 37Mr James acknowledged that throughout his employment he was aware of RailCorp's policies and that he was required to be drug free at work and was aware of the disciplinary penalties that could be imposed for breaching those policies including dismissal. He also agreed that he had attended briefings on the Code of Conduct. 38Mr James said that at the time he believed he had never come to work under the influence and his work records would indicate that, but since failing the test and embracing the rehabilitation he realised he had done the wrong thing. 39His understanding of the policy was to not come to work under the effect of a drug. 40He also acknowledged that he had stopped smoking cannabis for a month or two maybe longer so he could pass the initial screening test and that was because he needed a job. He knew he was not supposed to have drugs in his system while working for RailCorp. Originally he intended to stop full time. 41He acknowledged that he told his manager on the day of the testing that he had been smoking and had done so over the last twelve months as a relaxant to cope with personal stressors in his life. He agreed that he did not tell his manager at that time that he was a long term user. He did not self-identify because he was told he could not do so once he was selected for a test. He agreed he had never self-identified prior to that. 42He also acknowledged that he did not tell RailCorp that he was a long term user and agreed that his response read as though he had only been using cannabis for the last twelve months. He went on to say that he had hardly used cannabis at all during the first few years at RailCorp and that in the twelve months before the test he probably used in on weekends and days off. 43He also acknowledged that in his 12 March 2012 response to RailCorp he did not mention that he had been smoking cannabis for thirty six years. He agreed that in the twelve months before the test it was due to personal stressors but not prior to that. 44Mr James believed that he had been open and transparent with RailCorp throughout most of the discipline process. 45Mr James believed that he did not stop as he had intended after starting work for RailCorp because he had no-one to help him at that time, it came down to stupidity. He did not believe he had a problem at that time and that just like all people you don't believe you've got a problem until you face up to it. 46Mr James said that he told Dr Moss his history and he was attending that interview as part of RailCorp's rehabilitation process. 47His main issue over the previous twelve months related to the health of his 86 year old mother who was showing signs of cancer and had to have an operation (type of operation specified). His father had died of cancer in 2008 (type of cancer specified). All these things were discussed at some stage with the psychologist. Submissions on behalf of the Respondent 48Ms Baxter made oral submissions in addition to the written submissions as filed (Exhibit 1). 49In summary Ms Baxter submitted that RailCorp relied on the following circumstances to justify the dismissal of Mr James: 1.The high reading of his test result was more than 21 times greater than the acceptable cut-off level; 2.He was a part time employee with relatively short service; 3.His admissions to being a heavy cannabis smoker over a period of 36 years from the age of 20; 4.His statements that he had been smoking during the previous twelve months due to personal stress did not mitigate his actions when considered against his lengthy history of cannabis use; 5.His admissions that he stopped smoking for a month or two prior to commencing with RailCorp in order to pass the drug test. He started again and had smoked regularly during his employment with RailCorp. This demonstrated he had an awareness of RailCorp's policies, understood what was required of him and took deliberate and dishonest steps to circumvent them. Further evidence of this was his failure to mention his lengthy cannabis use in the disciplinary process. He had revealed this to the doctor, all the more reason to tell the investigator. Employees agree to participate in drug and alcohol programs, are advised of their rights, and this is undertaken by a different department of RailCorp than the Investigations Unit. 6.His attitude throughout the disciplinary process and rehabilitation that he did not believe his cannabis use affected his work belied the seriousness of the amount he smoked. 7.There were alternatives open to him such as the Employee Assistance Program, self-identification and rehabilitation which he said he was aware of but did not take up. 50RailCorp's written submissions set out the relevant sections of the Code that were breached by Mr James as follows: 2. Acceptable behaviour and responsibilities RailCorp employees, contractors and consultants are to comply at all times with the behaviours outlined in the Code of Conduct. You are also to adhere to the following general principles: Put safety first in everything we do. Always act in the best interest of RailCorp. Maintain and promote high levels of acceptable behaviour. Help to build and maintain a culture that is just and fair to all (known as a 'Just Culture' in RailCorp). As an employee, contractor or consultant of RailCorp you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, enterprise/collective agreements, awards, policies, procedures, rules and job requirements. In your job at RailCorp you must: Carry out your duties carefully, safely, honestly, courteously and fairly..." 4. Alcohol, drug and smoke free workplace We maintain an alcohol and drug free workplace; ........ and inter alia, ........ As part of RailCorp's commitment to safety we also require all employees, contractors and consultants to be alcohol and drug free while on duty... RailCorp is a drug and alcohol free workplace. All employees, contractors and consultants may be subject to random or targeted testing for drugs and alcohol. Any RailCorp employee, contractor or consultant will breach the requirement of a drug and alcohol free workplace if they return: a drug level that is at or above the cut off level stipulated by the Australian Standards AS/NZS 4308 an alcohol level that is at or above 0.02% blood alcohol concentration. Employees who breach these standards or who refuse a drug or alcohol test will be subject to counselling and/or disciplinary action. Serious or ongoing breaches may result in dismissal... It is an individual's responsibility to ensure that they are drug and alcohol free at work. 51Ms Baxter pointed out that Mr James had attended RailCorp Code of Conduct briefings on 17 October 2007 and 23 February 2010. He had admitted that he breached the Code and had entered a guilty plea on his Notice of Appeal. It was therefore not in issue that he was in breach of the Code. 52It was also submitted that Mr James had breached the provisions of the RailCorp Drug and Alcohol Policy which states: RailCorp is a drug and alcohol free workplace. Every employee and contractor is responsible to be drug and alcohol free while at work. Being drug and alcohol free is defined as: For alcohol ... For drugs, a test reading less than the cut off levels stipulated in the Australian/New Zealand Standard 4308 (AS/NZS 4308). 53The Policy was supported by the Safety Management System, System Requirement Drug and Alcohol Management (SMS System Requirement) which states inter alia that: 6.2 Refusing, failing or tampering with an alcohol or drug test An authorised testing officer with reasonable cause may require at any time, in any RailCorp workplace, an employee or contractor to: Undergo a breath test and/or breath analysis for alcohol Supply a urine sample for testing for drugs consistent with AS/NZS 4308, which is used for the detection of the presence of drugs. It is a serious breach of the RailCorp Code of Conduct and this system requirement if any employee or contractor: ...... Dilutes, destroys, interferes, tampers or substitutes a sample or attempt to do so or assist others to do so and/or... All such occurrences will be investigated and may result in disciplinary action and/or prosecution under the Rail Safety Act 2008. 54It was submitted that in addition to the Code Mr James knew, or ought to have known, of his requirement to adhere to the Policy and the importance of being drug free while at work. 55It was also submitted that Mr James had a duty of care to prevent risks to all employees and to persons entering its property or using its services Further, his behaviour may have breached s.20 of the Occupational Health and Safety Act 2000 which states as follows: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. (2)... Maximum penalty: (a) in the case of a previous offender-45 penalty units, or (b) in any other case-30 penalty units. 56It was submitted that RailCorp also had duties under s.8 of the OH&S Act which states: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 57It was submitted that, in the circumstances, the dismissal of Mr James was a reasonable step for RailCorp to take in order to satisfy its obligations under s.8 of the OH&S Act and most particularly s.8(1)(a) and (b), and 8(2). 58In addition RailCorp was within its rights to dismiss Mr James in order to meet the objectives of safety, reliability and efficiency as set out in s.5 of the Transport Administration Act 1988 as follows: 5 Objectives of RailCorp (1) The principal objectives of RailCorp are: (a) to deliver safe and reliable railway passenger services in New South Wales in an efficient, effective and financially responsible manner, and (b) to ensure that the part of the NSW rail network vested in or owned by RailCorp enables safe and reliable railway passenger and freight services to be provided in an efficient, effective and financially responsible manner. 59Ms Baxter analysed the relevant evidence as set out in the documentation filed by RailCorp and also the oral and written evidence of Mr James. 60Mr James had a positive reading for cannabis at a level of 1053 ug/L, which RailCorp's Chief Health Officer, Dr Armand Casolin stated was "quite high and strongly suggestive of regular use". The Australian/New Zealand Standard for drug testing lists the screening cut-off level for cannabis metabolites as 50 ug/L . Mr James reading of 1053 ug/L was therefore over 21 times the acceptable level at the time of his test. He admitted to Dr Moss that he had "two big days of smoking cannabis" on Monday 13 and Tuesday 14 June, before his positive test on Wednesday 15 June 2011. While the relevant test was not one of impairment, it was open for Board to infer that Mr James' performance at work on the Wednesday would have been affected. 61Mr James' high reading for cannabis on 15 June 2011 was also consistent with the history he gave to Dr Moss - that is, he had smoked cannabis most weekends since the age of 20, having about six joints over the weekend or more during periods of personal difficulties. For example, when his father passed away in around 2008, he smoked one or two joints every night for several months. 62Mr James had been employed by RailCorp since October 2007. He commented to Dr Moss that when he applied to work for RailCorp he "stopped for a month or two to pass the drug test" and stated that he does not believe his cannabis smoking affected his performance at work. As noted by Dr Moss, he continued to smoke cannabis regularly while employed at RailCorp for three and a half years despite knowing he was breaching the Policy. 63Ms Baxter reiterated that while impairment was not the relevant test, it was open to the Board to infer that such regular cannabis use would have resulted in Mr James attending work on any number of occasions with a cannabis level above the stipulated cut-off level and which likely affected his performance at work. 64Mr James' history of regular cannabis use for 36 years was not consistent with his responses throughout the disciplinary process. His response to the allegation letter cited the following stressors in his private life over the previous 12 months as reason for his cannabis use: a)elderly mother diagnosed with cancer requiring major surgery; b)eldest son suffered exacerbation of a long term health problem; c)assisting wife as caregiver to her family and relatives; and d)lack of career advancement. 65Then in his response to the preliminary dismissal recommendation he submitted that he had attended counselling and taken anti-depressant medication over a six month period to address his personal issues. He also submitted that his mother and wife "have had successful outcomes from surgery and these problems are now behind us". Notably, he provided no detail or evidence about such matters and made no comment about the other stressors in his life as previously mentioned. Regardless of this it was submitted that Mr James' long history of cannabis use and his comments to Dr Moss indicated that his usage was not exclusively linked to his personal stressors. 66It was also pointed out that to the extent that Mr James' cannabis use may have increased during periods of personal stress, it should be noted that many employees go through periods of personal stress, have difficulties at times, and will do so repeatedly over time. RailCorp offered employees access to an Employee Assistance Program ("EAP") and for those who suffered from a drug and/or alcohol dependency, there was provision for self identification to seek assistance to deal with their circumstances. With this in mind, it was submitted that Mr James' listed personal stressors provided insufficient mitigation to excuse his positive drug test. 67It was submitted that there was a legitimate concern that he would be at risk of re-offending in future if re-instated having regard to his extensive history of cannabis use, including over a three year period while he was knowingly in breach of both the Code and the Policy, 68Further as a Reservation Sales Agent, Mr James was responsible for providing quality customer services for RailCorp dealing with members of the public wishing to travel with CountryLink. RailCorp required all employees to perform their role to the highest standards and in doing so adhere to their responsibilities to comply with the requirements of the Code and the Policy. 69It was submitted that RailCorp was correct to dismiss Mr James for his actions in breach of the Code and the Policy in all of the circumstances. Mr James was aware of the provisions of the Code and the Policy, and the potential penalty of dismissal. He was deliberately dishonest to RailCorp when he commenced his employment in 2007 by actively avoiding a positive test and resuming his cannabis habit once successfully employed. Over the subsequent three and a half years, He maintained that dishonesty by regularly taking high levels of cannabis and presenting for work, thereby demonstrating a willingness to knowingly disregard RailCorp's policies. 70It was submitted that by attending work on 15 June 2011 with a cannabis level of 1053ug/L, Mr James committed a serious breach of the Code and the Policy which was rendered more serious by his lengthy history of cannabis use. 71RailCorp submitted that Mr James' actions warranted dismissal and that it was not in the public interest to alter this decision. RailCorp maintained that Mr James had committed serious breaches of RailCorp's Code of Conduct and Drug and Alcohol Policy. The Board should not alter the decision to terminate Mr James' employment. Submissions on behalf of the Appellant 72Mr Edghill made oral submissions which expanded in some detail on the written submissions as filed (Exhibit 3). 73It was submitted that as Mr James had pleaded guilty to the allegation against him it was the Board's function to determine whether dismissal was the appropriate penalty, or whether it was harsh in the circumstances. 74It was submitted that the decision to dismiss Mr James should be considered harsh, and the appeal upheld, for the following reasons: 1.He was honest and admitted his mistake from the outset, declaring his drug use to his manager when he submitted to the test. This was confirmed by the evidence of both Mr James and Mr Fredericks, RailCorp's Testing Officer. 2.There were mitigating circumstances for his marijuana use as explained in his two written responses to RailCorp and his evidence. 3.He did not miss any work at RailCorp as a result of the failed drug test. He returned to his duties after providing his sample to the collector. He was not removed from duty by RailCorp and at no time did he take leave as a result of the failed test. 4.He submitted to, and successfully completed, RailCorp's Drug and Alcohol counselling program. During the counselling he spoke openly and honestly about his marijuana use. This could be seen from the July Report of Dr Moss and the further Reports of Dr Moss and Kelly Da Costa as attached to Mr James' statement. 5.This demonstrated that he: Understood and had learnt from his mistake and was able to attend work drug and alcohol free; and That he did not present any risk to his health and safety or that of other employees. 6.He had an excellent employment record and this was the first time that any disciplinary action had been taken against him. To dismiss him for a first time breach of RailCorp's policies when he had clearly demonstrated that he had learnt his lesson was obviously harsh. 7.Mr James' age had contributed to his difficulty in finding work and meant that he was unlikely to be able to find employment in the future. 75It was submitted that the open and honest way that Mr James approached the investigation and the drug counselling program demonstrated that he took responsibility for the failed drug test and that he treated the breach seriously. 76On the issue of mitigation it was submitted as Mr James had explained in his letters to RailCorp and in his conversations with the doctor and psychologist, that he had been using marijuana to 'self-medicate' due, in part, to serious family issues that he was facing, such as his mother's illness. RailCorp indicated that they were prepared to consider such issues in making their decision when the DRP wrote to him seeking medical evidence. Unfortunately as he indicated in his evidence Mr James did not receive this letter. He had provided a letter from his mother's doctor confirming the serious health issues that she was facing at the time as set out in his evidence. 77It was submitted that Mr James offered this information not as an excuse, but as an explanation of the kind of problems that precipitated his cannabis use. This issue was relevant both in mitigation of the breach itself, and in terms of considering the likelihood of a future breach. The Reports of Dr Moss and Kelly da Costa demonstrated that Mr James had learnt other ways to cope with such stresses. 78It was submitted that the fact that RailCorp allowed Mr James to return to work moments after declaring his drug use, and that he then continued to work on full duties without issue or incident after declaring that drug use, only to then be dismissed some 10 months later, beggared belief. This demonstrated that RailCorp's actions with regard to Mr James were logical or reasonable, and highlighted the harshness of the eventual decision to dismiss him. 79It was further submitted that Mr James' successful completion of RailCorp's drug and alcohol counselling program also demonstrated the harshness of the dismissal. 80The Board was referred to letter from Mr Dalton which indicated that in December 2011 RailCorp had received satisfactory reports regarding Mr James' ability to comply with the requirements of their drug and alcohol policy. This letter even indicated that they were happy for Mr James to undertake rail safety work. It appeared that if Mr James were a train driver, a signaller or a track worker, he would have been undertaking serious and responsible rail safety work as of December 2011. If RailCorp was prepared to trust Mr James to undertake rail safety work in December 2011 it raised the question of why did they not trust him to undertake telephone based work in April 2012. Again, this demonstrated that the decision to dismiss Mr James was inconsistent, unreasonable and harsh. 81It was submitted that the most compelling evidence about Mr James' approach to the counselling program, and his ability to comply with RailCorp's Drug and Alcohol Policy, were the reports of Dr Moss and Kelly da Costa. 82The Board was taken to relevant information from the 14 December 2011 Report of Dr Moss as follows: From Page 1 I note since I initially assessed Mr James he has completed five counselling sessions and returned nine negative drug screen results. He has a satisfactory work report from his manager. He reported he has been abstinent from cannabis since July 2011. Mr James said he has enjoyed the counselling with Kelly DaCosta which helped him maintain abstinence. From Page 2 Mr James' urine drug screen taken on 13th December 2011 was negative. Mr James has maintained drug abstinence and sensible drinking over the last six months... He remains motivated to continue with cannabis abstinence. His diagnosis is drug dependency in early full remission. Mr James is at low risk of relapse and should be able to remain drug free in the future. He is fit to resume rail safety work. He does not require any further counselling... 83Mr Edghill also referred to the 8 December 2011 Report of Kelly da Costa which indicated that Mr James had remained abstinent from cannabis, was considered low risk of relapse and was "fit for all rail safety work in relation to his cannabis issues". It went on to provide notes from the counselling sessions that Mr James completed. At page 8 the Report also included the following relevant information: Mr James has been able to identify his main trigger for use as depression, which is now being treated. Mr James has been able to change his world-view to some extent and gain confidence that he can manage his life issues without cannabis and alcohol. Mr James understands the long-term consequences and risks of long-term drug and alcohol use. Mr James is remorseful that he broke RailCorp's policies and put his job in danger. Given that Mr James continues to remain abstinent from cannabis for the past 7 months... he will meet the criteria for Substance Dependence (Cannabis) in Full Remission in 5 months time. Mr James has made excellent progress in counselling. Given that Mr James continues to remain abstinent from cannabis he is considered a low risk of relapse and fit to return to rail safety work. 84It was submitted that it was clear from the Reports provided by health care professionals engaged by RailCorp to ensure compliance with health standards for rail safety workers, that the program was a success for Mr James. The Reports clearly demonstrated he understood his responsibilities and was willing and able to comply with them. They also demonstrated that he did everything that was asked of him by RailCorp to show that he was able to comply with their drug and alcohol policy. They also demonstrated that he was completely open and honest through out this process. To dismiss Mr James after he spent 10 months achieving these results also beggared belief. Such a decision was inconsistent, illogical and unreasonable. 85Mr Edghill also emphasised that Mr James did not attempt to conceal matters or issues from RailCorp and this was at odds with the frank admissions he made to the medical professionals. The information he provided to the investigator also accorded with what he told the medical professionals (his mother's health). At the time he made his submissions to RailCorp we could not be confident that he fully appreciated the extent of the issues or problem he was facing. 86Mr Edghill rejected RailCorp's claim that their occupational health and safety responsibilities justified Mr James' dismissal on the basis that this claim was also shown to be incorrect and inconsistent with their own advice and actions. First of all, if they believed Mr James was a threat to the health and safety of other employees then they had a responsibility to remove him from the workplace in June 2011 when he declared his cannabis use. They did not; they let him go back to work moments later and to continue to work for 10 months. Further, the advice of the health care professionals that they paid for demonstrated that he would have been fit to carry out rail safety work. If he was medically fit for rail safety work in December 2011, there was no reason why his work in a call centre would be a threat to health and safety, particularly when he had demonstrated himself to be in full remission from cannabis use. 87It was submitted that as Mr James was not a rail safety worker, RailCorp was not required to put him through the drug counselling program, but they did so anyway and he took to it enthusiastically, demonstrating his willingness and ability to comply with RailCorp's policies over a 10 month period. Dismissing Mr James after that 10 month period appeared to make no sense and served no purpose. In these circumstances, it was clear that the decision to dismiss Mr James was unjustified, unreasonable and harsh. 88Mr Edghill also submitted that the appeal should be upheld because to do otherwise would serve no useful purpose. Mr James had made a mistake and that was not disputed. Throughout the time that he had a problem he had not identified or understood or accepted that he had a problem. Up to that point it was reasonable to say why would he? He was not missing work and had not had any problems raised with his work. 89It could now be seen that he was dealing with the stressors in his life in an inappropriate way which put him at odds with RailCorp's policies. This was not done as some scheme of Mr James to circumvent RailCorp's processes. This was done because he did not accept that he had a problem and did not accept that he had a dependency on cannabis, until diagnosed by Dr Moss and Ms da Costa. 90Mr Edghill emphasised that Mr James had not missed work as a result of his problem, no disciplinary history against him or issues of poor performance. The test proved he had a problem and was the catalyst for him improving and fixing that problem. He should be considered in terms of a man who had a medical problem not as someone who did not care to follow RailCorp's policies. He had also done everything asked of him through the rehabilitation process which to RailCorp's credit they sent him to and had paid for. 91Mr Edghill also relied on the observations of the Board in Tauia v RailCorp [2011] NSWTAB 27 and Walters v RailCorp [2012] NSWTAB 3. 92In conclusion it was submitted that it was clear that Mr James' dismissal by RailCorp was harsh and served no useful purpose. Mr Edghill also submitted that an effective unpaid suspension would serve no useful purpose. If it was to teach him a lesson about the seriousness of the breach he had learned that through ten months of counselling. Any alternate financial penalty considered by the Board should be at the lesser end. However in all he circumstances it was submitted the Board should uphold Mr James appeal and return him to work in his former position and location, with full back pay and continuity of employment. Submissions in reply on behalf of the respondent 93In reply Ms Baxter acknowledged that in December 2011 RailCorp was satisfied that he could go back to work. The rehabilitation process was quite separate from the disciplinary process however and it was still within the remit of RailCorp to dismiss as employee in circumstances where it considered there was a serious breach. It was a penalty, and factors such as the seriousness of the breach, things like dishonesty and the likelihood of re-offence were taken into consideration. 94Mr James had been described as a man with a medical problem whom RailCorp had assisted. That was done because there was a policy, it was discretionary and RailCorp chose to do that. It did not, on the other hand, chose to continue to employ him in the face of the ongoing risk he would commit the same misconduct again. Reference was made to the assessments in the medical reports (low risk of remission), this was not no risk and against a background of long term usage. 95Ms Baxter also submitted that the seriousness of the breach was not something that was a lesson that needed to be learned by Mr James. It was also an important message that needed to be sent to other RailCorp employees and also in the public interest that RailCorp impose serious penalties for serious forms of misconduct. 96It was accepted that Mr James had been open and honest in the counselling and he may have been told a report would go back, but he was aware that dealing with Ms Hindmarch was very separate from the disciplinary procedure. The allegation letter he received was part of the disciplinary process and he was given a copy of the discipline procedure and it was made clear that this was his opportunity to provide any explanation and provide mitigating circumstances. He had two opportunities to do that and failed to do so. Findings 97This is an appeal under clause 43 of the Transport Administration (Staff) Regulation 2005 against RailCorp's decision to impose the disciplinary punishment of dismissal on Mr James. Section 23(1) of the TAB Act provides that the Board may decide to allow, or disallow the appeal, or make such other decision as it thinks fit. 98Mr James has pleaded guilty to the allegations against him. The Board's function in this matter is therefore to determine whether the disciplinary punishment imposed by RailCorp in relation to such allegations is appropriate in all the circumstances - see Duhbihur v Transport Appeal Board and Anor [2005] NSWSC 811 at [116]-[125]. 99The Board is obliged to determine the disputed issues before it on the civil standard of proof, that is, the balance of probabilities. The Board is also obliged to approach the matter in a manner consistent with the principles enunciated in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336. 100The Board has very carefully considered the evidence and submissions of the parties in this appeal. 101The Board acknowledges that Mr James has successfully completed the rehabilitation program provided by RailCorp and appears to have "learnt from his mistake". 102However, having said that, the extreme gravity of the seriousness of his misconduct cannot be so easily overlooked. He did not just make "a serious error of judgement" (his written response to RailCorp) but made continual serious errors of judgement during his employment with RailCorp prior to the drug test in June 2011. 103Mr James on his own admission was a long term user of cannabis. He knew only too well back in 2007 that he would be unable to pass RailCorp's drug screening when he applied for a position with RailCorp so he abstained from cannabis use for a sufficient period to enable him to pass that screening and gain employment with RailCorp. He wopuld not have been employed otherwise. He was very well aware of RailCorp's zero alcohol and drug policy at that time. While he evidently refrained for a short period thereafter he then resumed his cannabis use and regularly used cannabis, sometimes on a daily basis (during his father's illness). During the entire period of his employment with RailCorp prior to the June 2011 test he was fully aware of the requirement to be drug free when he attended work yet he deliberately chose to ignore the Policy and attend for work with cannabis in his system. 104This was not an employee who smoked the odd occasional joint on a recreational basis, but an employee, who on his own admission, had been smoking up to six joints on a weekend and smoking on his days off. That is a regular and heavy user on any definition. 105It has been said in Mr James' defence that he made full admissions and was honest at the time of testing. Well frankly he had no choice. He was well aware that he had had been smoking heavily over the previous two days (as he indicated subsequently to Ms da Costa) and therefore he was fully aware that he was going to fail the test. He did not tell his manager or the Testing Officer just how long he had been smoking cannabis (or how frequently or how much) whilst working for RailCorp. The Board also notes from the July Report of Dr Moss that he did not tell his own GP that he had a positive drug test when he subsequently consulted that GP about depression. 106The Board considers that but for that test he would in all probability having carried on smoking cannabis and carried on attending work with high levels of cannabis in his system in contravention of RailCorp's policies or at least until such time as he was tested in the future. 107It has also seems to have been suggested in Mr James' defence that the diagnosis of the RailCorp medical professionals that he was drug dependent somehow meant he was not in control of his situation and habit and this somehow mitigates his continued usage. In the Board's view this suggestion is negated entirely by his acknowledgment to Ms da Costa during the counselling that he had "no difficulty stopping" and "no difficulties maintaining abstinence". This is not suggestive of a person who had struggled to give up, or made any attempt to give up smoking cannabis, prior to testing positive. He chose to resume his cannabis smoking at some point after he passed the initial RailCorp screening test and chose to continue smoking cannabis until he was caught, that is the reality of the situation. If he had wanted to stop he could have sought assistance at any time through the various internal measures available (the confidential EAP program etc) or from external sources. There was no evidence that he had attempted to stop and had difficulty in doing so. 108Mr James has raised in mitigation the serious health issues of close family members that had affected him and resulted in him "self-medicating". Whilst the Board can readily sympathise and empathise with these personal circumstances, we all at some stage of our lives have to cope with family tragedies, life threatening illnesses, death in the family and other issues such as family break ups. The average person and indeed the average employee at RailCorp does not rely on cannabis usage to help them though those rough times, and this is without taking into account employment in a workplace that has a very specific policy on drugs and alcohol, and one that is well known and the subject of random testing of employees. 109It was also suggested that Mr Dalton had said in December 2011 that Mr James was fit to return to rail safety work (it is acknowledged that he was not a rail safety worker) after completing the rehabilitation program and that on that basis a rail safety worker would have been returned to work and hence Mr James should not have been dismissed. That is an exceptionally simplistic argument. The Board would have no doubt whatsoever that if a rail safety worker had similarly tested positive to cannabis, and had similarly presented with the history of usage during employment that Mr James had, then such a rail safety worker would certainly not have been returned to rail safety work and would also certainly have been dismissed by RailCorp. 110The Board has been very mindful of Mr James' good record with RailCorp, his age, and the difficulties he faces in gaining other employment. However the seriousness of the misconduct he has committed outweigh those considerations. 111Reliance has been by placed by the RTBU on the decisions of the Board (as currently constituted) in Tauia and Walters and the observations made about failing a test, participating successfully in rehabilitation and then being dismissed. In both cases an effective unpaid suspension and demotion was imposed in the orders for reinstatement made. However, the facts of those two cases are readily distinguishable from Mr James' situation. Both Mr Tauia and Mr Walters were much longer term employees (18 and 10 years respectively). They had both been tested a number of times over their employment and this was the first test they had failed. They returned a test result over the requisite alcohol limit. When they attended work on the day of their respective tests they both thought they were under the limit. They had no history of ongoing alcohol abuse or problem. The Board also considered that the training/education material provided by RailCorp to enable an employee to identify appropriate/inappropriate alcohol intake to be deficient in assisting employees make appropriate decisions about their alcohol intact to ensure they presented to work in compliance with the Policy. 112No such factors are present when the Board considers the position of Mr James, indeed it still remains a concern that Mr James considers that he was not affected by his drug use when he was at work. He cannot possibly know (nor can the Board) whether having cannabis in his system did affect the way he worked, or his capacity to undertake work (or perform work of a higher standard or level or position), merely the absence of any complaint about his work does not mean he is entitled to draw the conclusion that smoking cannabis did not affect his work and it was alright to come to work having smoked cannabis. 113However, the Board also notes that in Mr James' case, notwithstanding the distinct differences with Tauia and Walters, an unpaid suspension was not really countenanced by the RTBU and if considered by the Board was proposed to only be at the lower end with the primary submission being reinstatement with full back pay. 114That Mr James has benefited from the rehabilitation that was provided by RailCorp is evident and commendable and very much to Mr James' benefit, but it does not, and cannot, negate the very, very serious misconduct he knowingly committed over a considerable period of time prior being to tested. 115Having carefully considered the evidence and submissions in this matter the Board does not find the decision of RailCorp to dismiss Mr James harsh or a disproportionate penalty to impose for the serious and indeed deliberate misconduct committed and does not consider it appropriate to intervene in that decision. Mr James' appeal is therefore disallowed. Order(s) 116The appeal of Peter James (TAB12/180) is disallowed. Elizabeth Bishop 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: 30 August 2012