Transport Appeal Boards New South Wales Medium Neutral Citation: Norman Jameson and Rail Corporation of NSW ("RailCorp") [2012] NSWTAB 33 Hearing dates: 7 September 2012 Decision date: 10 October 2012 Before: Tabbaa C AM (Board) Decision: Appeal disallowed Catchwords: Dismissal: Failure by Appellant to comply with Drug and Alcohol Policy; Under the influence of drugs while at work; Urine sample tested positive for cannabis metabolites; Australian Standard AS/NZS 4308:2008; Personal and mitigating considerations to be balanced against gravity of misconduct; Second occasion Appellant has been caught. Legislation Cited: Transport Administration (Staff) Regulation 2005 Transport Administration Act 1988 Rail Safety (Drug and Alcohol Testing) Regulation 2008 Rail Safety Act 2008 Work Health and Safety Act 2011 Cases Cited: Department of Health v Perihan Kaplan [2010] NSWIRComm 65; Keuenhoff v RailCorp [2012] NSWTAB 10; Walters v RailCorp [2012] NSWTAB 3; Tauia v RailCorp [2012] NSWTAB 27; and Dickson v RailCorp [2012] NSWTAB 9 Category: Principal judgment Parties: Mr B Edghill (Rail, Tram and Bus Union, NSW Branch) (Appellant) Ms Melanie Robinson (RailCorp) File Number(s): TAB 224 of 2012 DECISION Introduction 1This is a decision in an appeal pursuant to clause 32 of the Transport Administration (Staff) Regulation 2005 against the decision of Rail Corporation of NSW ("RailCorp") to dismiss Mr Norman Jameson from the position of Rover Cleaner. 2Mr Jameson (the "Appellant") commenced employment with RailCorp and/or its predecessors on 11 October 2001. 3On Monday, 2 January 2012, Testing Officer, Vanessa Caridi, attended the Presentation Services Depot at Central Railway Station and conducted random drug tests on employees, including the Appellant. 4A urine sample was provided by the Appellant at approximately 8.54 am and Laverty Pathology undertook its analysis and provided a written report on its findings. The Report confirmed that the Appellant's urine sample returned a positive reading to Cannabis Metabolites (Delta-9-THC-COOH) at a level of 70 ug/L, which is above the cut off level of 15 ug/L as prescribed by the Australian Standard AS/NZS 4308:2008. 5The Appellant was stood down and the matter was referred to Mr John Sharp, an investigator with the Respondent's Investigations Unit, to conduct a disciplinary investigation. 6Mr Sharp obtained a statement from Ms Caridi and her Report, the Pathology report and the Appellant's personnel history. 7Mr Sharp forwarded a letter to the Appellant, dated 30 January 2012, notifying him of the allegation that he had breached the RailCorp Code of Conduct and inviting him to respond to the allegations in writing within fourteen (14) days. 8On 3 February 2012, the Appellant provided a written response to the allegation citing personal and mitigating considerations he wished the Respondent to take into account. He advised that he had been referred to the Drug Investigation Unit by the Human Resources Department and had undertaken four tests all of which had returned negative results. He also advised that he had consulted his Doctor who referred him to counselling which he was undertaking. In that regard, he attached two certificates of attendance from Davidson Trahaire Corpsych dated 11 and 18 January 2012 respectively. He provided an assurance that he will not come under notice again for any alcohol or drug related matter. 9The Appellant attended a disciplinary interview with Mr Sharp on 15 March 2012. 10Mr Sharp concluded that the allegation was substantiated and forwarded his completed Investigation Report to the disciplinary Review Panel (DRP) for consideration on 23 March 2012. 11Following a review of the evidence, the DRP made a preliminary recommendation on 13 April 2012 that the Appellant be dismissed. On 16 April 2012, Mr Michael Armstrong, General Manager-Presentation Services, wrote to the Appellant advising him of the Panel's preliminary view and inviting him to make submissions in writing, within fourteen days, in regard to an appropriate penalty and to submit any further material he wished to be taken into account by the DRP. 12The Appellant responded on 20 April 2012 repeating the personal and mitigating issues he wished the DRP to take into account. 13Mr Sharp reviewed the response from the Appellant on 1 May 2012 and considered that no new issues had been raised by the Appellant for consideration. 14On 17 May 2012 the DRP considered the Appellant's response and confirmed their recommendation to dismiss him. 15On 22 May 2012, Mr Armstrong signed off on a letter confirming that the Appellant was to be dismissed effective from 24 May 2012. He was paid four weeks' pay in lieu of notice. The Charge 16The allegation contained in the correspondence to the Appellant dated 30 January 2012 is as follows: On Monday, 2 January 2012, at Central Railway Station, Mr Jameson undertook a drug screen test. The resultant test was positive to Cannabis Metabolites at a level of 70 ug/L. RailCorp Code of Conduct & Drug and Alcohol Policy 17The rules in the RailCorp Code of Conduct ("the Code") that pertain to the allegation are set out below: Section 2Acceptable behaviour and responsibilities RailCorp employees ... are to comply at all times with the behaviours outlined in this 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 interests of RailCorp Maintain and promote high levels of acceptable behaviour..... As an employee ... you are responsible for the way you behave and your actions. All your decisions must be ethical and comply with legislation, awards, policies, procedures, rules and job requirements. In your work at RailCorp you must: .... Carry out all lawful directions from managers/supervisors to the best of your ability...... Section 4 Alcohol, drug and smoke free workplace RailCorp is a drug and alcohol free workplace. All employees, ... may be subject to random or targeted testing for drugs and alcohol. Any RailCorp employee, ... 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.... It is an individual's responsibility to ensure that they are drug and alcohol free at work. 18The sections contained in RailCorp's Drug and Alcohol Policy that pertain to the allegation are also set out below: Section 6 Drug and Alcohol Testing 6.2Refusing, 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 ... to: undergo a beath 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 ... : ... fails a drug test .... All such occurrences will be investigated and may result in disciplinary action and/or prosecution under the Rail Safety Act 2008.... Health and Safety Responsibilities of Employers and Employees 19The Work Health and Safety Act 2011 relevantly provides the following obligations of employers and employees in relation to workplace health and safety, a breach of which will attract substantial monetary penalties or imprisonment or both : Section 19 Primary Duty of Care (1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a)workers engaged, or caused to be engaged by the person; and (b)workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2).... (3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a)the provision and maintenance of a work environment without risks to health and safety, and ...... (f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. Section 28 Duties of workers While at work, a worker must: (a)take reasonable care for his or her own health and safety, and (b)take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and (c)comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and (d)co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers. The Respondent's Case 20Mr John Sharp provided a written statement to which he attached a copy of his investigation report into the incident. 21Mr Sharp noted as part of the investigation process that the Appellant had, on 20 February 2007, returned a positive breath analysis test for alcohol for which he was reprimanded and as a result of which he attended a rehabilitation program. 22Mr Sharp also noted that the Appellant attended a Code of Conduct briefing on 12 January 2010. The Respondent's Code of Conduct stipulates that all employees are required to be drug free while on duty. In addition, the Code of Conduct and the Drug and Alcohol Policy clearly set out the responsibility for all employees to be drug and alcohol free while at work. The Appellant admitted that he was aware of the Code of Conduct and the requirement to be drug free when on duty. 23Mr Sharp also noted that the Appellant explained that he had suffered stress from having witnessed a suicide when at work in November 2011. Nevertheless, the Appellant agreed that he had declined an offer by RailCorp to provide him with counselling. 24Finally, Mr Sharp took into account that the Appellant admitted to his use of cannabis on the evening of 31 December 2011 when attending a New Year's Eve party and noted the Appellant's comments in mitigation. 25Mr Sharp concluded that, on the balance of probabilities, there was sufficient evidence to substantiate the allegation and referred the report to the DRP for determination. 26The Respondent tendered the Testing Officer Report: Drug Testing, prepared by Vanessa Caridi, an authorised Testing Officer with the Drug and Alcohol Detection Unit in the Safety Assurance Division of RailCorp. A statement which she had prepared for the proceedings was also tendered. 27Ms Caridi stated that she attended the Presentation Services Depot at Central Railway Station at approximately 5.40 am on 2 January 2012 to conduct random drug testing of employees at that location. 28Ms Caridi stated that soon after her arrival, she spoke to Team Supervisor, Ayalew Hundessa following which a random selection was made of 15 staff out of 17 names provided. Included amongst the persons selected was the Appellant. 29Ms Caridi said that the Appellant commenced his shift at 8.30 am and was scheduled to perform train cleaning duties. He had not yet performed any Rail Safety Work when she introduced herself to him at approximately 8.54 am and completed the Random Test: Drug - Contemporaneous Notes form with him. 30Ms Caridi stated that during the period she was in his company, the Appellant did not display any visible signs of intoxication or impairment or of being under the influence of a drug . 31Ms Caridi said she received the pathology report at approximately 6.20 pm on Tuesday, 3 January 2012 indicating, in relation to the Appellant, a positive reading for cannabis metabolites at a level of 70 ug/L- above the cut-off stated in the AS4308:2008 standard (50 ug/L). The Appellant's Case 32Mr Jameson provided a written response to the allegation made against him on 2 February 2012 in which he advised the following: (1)He had witnessed a male person commit suicide at Central Railway Station using a knife to slit his throat while being pursued by the Police. He had vivid recollection of the incident. (2)He had declined an offer of counselling believing that he could cope with what he had witnessed. (3)A meeting, scheduled for about a week later to debrief the staff about the suicide had been cancelled and was not rescheduled. He was disappointed because, by that time he had begun to feel uneasy about what he had witnessed. (4)He commenced to have weird dreams on some nights and had difficulty sleeping on other nights for no apparent reason. He also began to feel nervous around some of the patrons that utilised that Station. He did not receive any relief talking about the incident with other staff who had witnessed it because some did not care and others did not wish to discuss it. (5)He attended a New Year's Eve party and a man who the Appellant did not know offered him one of two or three rolled joints in his possession because the Appellant did not seem very happy considering the nature of the event. The Appellant stated: "I accepted the joint and smoked it. After I had smoked the joint I felt light headed and everything seemed okay. Later on in the night I realized what I had done. The next day I contacted a friend and told him I had smoked a joint and I had to work the following day. He told me if I only smoked one I should be ok". (6)Since his positive drug test, he has co-operated with the Human Resources Department and attended the Drug Investigation Unit. He has had four negative tests. He has also consulted his own Doctor. He is continuing with counselling. (7)Finally, he has been a good employee for 10 years and believed will not come under notice again for any alcohol or drug related matter if he is given another opportunity. He is prepared to comply with any conditions in order to retain his employment. (8)Mr Jameson attached Certificates of Attendance dated 11 and 18 January 2012 confirming attendance at appointments with Davidson Trahaire Corpsych. 33Mr Jameson participated in an electronically recorded disciplinary interview on 15 March 2012 during which he confirmed the following: (9)He chose not to have a representative support person/observer present during the interview and, on the record, confirmed his willingness to participate in that interview without such support. (10)He was aware of the RailCorp Code of Conduct; he acknowledged that he received a briefing on the Code of Conduct and noted that his personnel history recorded the briefing as taking place on 12 January 2010; and he recalled being advised during the briefing that RailCorp is an alcohol and drug-free workplace; (11)He has undergone a number of drug/urine tests over the years. On 20 February 2007 he returned a positive breath analysis reading for alcohol (.03) for which he received a reprimand and was referred for rehabilitation. (12)He explained that witnessing a suicide in November 2011, in addition to his domestic problems, had resulted in him not feeling the best. He confirmed that he had declined the offer of assistance made by the Respondent. He stated, "I still have to walk past the place where it happened because it was just outside our depot. It's been a little bit hard to sleep here and there. I do get flashbacks every now and again. it replays in my mind quite regularly and so I'm getting a little bit better with it now". (13)He said he attended a New Year's Eve party on 31 December 2011. "I was offered a joint of Marijuana or to partake in the smoking of it. So I had - I don't know - quite a few puffs of it....". (14)He undertook a drug test on his first day back at work, on 2 January 2012, and returned a positive reading to Cannabis Metabolites at a level of 70 ug/L. 34In Mr Jameson's written response to the General Manager dated 20 April 2012 as to why he should not be dismissed from employment, he explained, "I went to a New Year's Eve party and consumed alcohol and during the night I was offered a joint which I accepted. The next day I remembered I had accepted a joint but I thought I may have only had a puff as I was feeling normal". 35In Mr Jameson's statement tendered in these proceedings, he stated that when he attended the New Year's Eve Party he had been concerned about his mother who had been hospitalised just before Christmas 2011 and was in hospital during the Christmas-New Year period. Previous to that she had been in a nursing home for the last five years. 36In addition to the concerns about his mother, he was starting to have strange dreams on some nights and had difficulty sleeping following the witnessing of a suicide while at work in November 2011. The Appellant provided a description of what he had witnessed. He stated that he had begun to feel nervous around the customers at Central as a result. 37Mr Jameson confirmed that RailCorp had allowed him and the other witnesses to go home immediately after the incident. He said he received a telephone call from the Operations Manager the following day wanting to know if he was alright and offering him counselling. He recalled that he advised that he would be alright and declined the offer of counselling. 38He stated that a meeting was called about a week later between the General Manager and all the staff who had witnessed the suicide. He recalled that he was disappointed when that meeting was cancelled and was not rescheduled as he was beginning to feel uneasy about what he had witnessed. 39His attempts to discuss what he had seen with the other employee witnesses were unsuccessful as some did not seem to care about it and others did not want to talk about it. 40It was against that background that he attended the New Year's Eve party. He had been under the influence of alcohol when, shortly before midnight, a friend commented to him that he did not seem very happy and offered him a joint or marijuana cigarette. He recalled mentioning his concerns about his mother to that friend. 41In his statement in the proceedings, the Appellant stated, "I accepted the joint from my friend and smoked it. I believe I only had a few puffs as the joint was also shared with other people." He said that later in the night he realised the mistake that he had made. 42During his oral evidence, the Appellant confirmed that he had been a regular user during his younger days in high school smoking six cones a day. Appellant's Drug & Alcohol History 43The Appellant was subjected to a random alcohol test by RailCorp's Drug Investigation Unit on 20 February 2007. Upon returning a positive reading to alcohol of 0.031 grammes of alcohol, he was conveyed to Hurstville Police Station where he underwent a further breath analysis and returned a reading of 0.020 grammes of alcohol. The testing officer reported that the Appellant "had a slight smell of intoxicating liquor on his breath, his eyes were bloodshot and his face was slightly flushed". The Appellant was removed from rail safety work. He was required to, and attended, an initial assessment at Good Health Solutions on 22 February 2007. Dr Wijetunga stated that it was uncertain as to the likelihood that the Appelllant will be able to comply with the Respondent's Drug and Alcohol Policy. The Appellant refused to give a chain of custody drug sample at that assessment. 44The Appellant was directed to attend a chain of custody drug test on 1 March 2007. He returned a positive result to cannabis with a reading of 65 ug/L. He was referred to counselling at Odyssey House where he attended five sessions of counselling. Mr Whitecloud reported that the Appellant was found to be psychologically dependant on alcohol and recommended drug education. At a further counselling session on 14 September 2007, Mr Whitecloud reported that the Appellant had advised that he had ceased all cannabis use and had reduced his alcohol intake. He stated that the Appellant was capable of remaining abstinent from cannabis as well as drinking alcohol within normal limits. 45The Appellant attended a medical review with Dr Moss at Good Health Solutions on 4 October 2007. Dr Moss noted in her report dated 11 October 2007 that the Appellant advised her that ... he smoked about 6 cones a day for most of his life... [he] still socialises with friends who smoke cannabis and so far he has managed to remain abstinent with his main motivation being potential loss of his job. A chain of custody drug test was conducted at that time and the result was negative. The above is to be contrasted with Dr Moss' report of 30 January 2012 following an assessment of the Appellant conducted on 17 January 2012 in which she reported - Mr Jameson reported he began smoking cannabis at 16 years having a few joints "socially" with friends up to two days a week. ... Mr Jameson claims he has never been a daily smoker and never smoked cones or used a bong. ... When he joined Railcorp ten years ago Mr Jameson stated he smoked two joints once or twice a month ... He said he became entirely abstinent from cannabis in 2004 as a consequence of random drug testing being introduced at work. In summary, Dr Moss opined that, despite the Appellant's submissions that he smoked cannabis as a result of psychological pressures, given that it occurred at a social occasion on New Years' Eve, he most likely smoked the joint intentionally due to peer pressure. Nevertheless, Dr Moss felt it was likely to be an isolated episode. 46It is noted that Dr Moss made the following finding on 11 October 2007: I completed an alcohol audit questionnaire with Mr Jameson. He scored 21 which was mainly contributed to by his binge drinking on the weekends. I reviewed his previous alcohol audit questionnaire with a score of 11 and I confirm that he grossly underestimated his answers at that time. If he had answered truthfully he would have had a score over 20. This indicates harmful drinking with possible dependency. 47In summarising her findings on 11 October 2007, Dr Moss advised that - Mr Jameson appears to have remained abstinent from cannabis. I believe he has a low risk of knowingly relapsing however he is at risk of smoking cannabis when he is so intoxicated with alcohol that he has a memory loss and does not know what he is doing. 48Dr Moss also included in that report that she was concerned that, ... over time Mr Jameson "will gradually increase the amount he drinks during the week, especially during times of stress. ... At the moment I would estimate he is at moderate risk of relapse over the next year.... I do not think further counselling will reduce his risk of relapse as Mr Jameson does not consider his alcohol drinking is a problem. In her report of January 2012, Dr Moss summarised that - If he completes drug and alcohol counselling it is likely Mr Jameson will remain abstinent from cannabis in the long-term but his alcohol history should be explored further and he may remain at risk of alcohol abuse with binge drinking in the future. 49At the recommendation of Dr Moss, the Appellant was required to undertake drug testing in April, May and October 2007 and returned a negative reading. He was also required to undertake alcohol testing two or three times a month until October 2007 and returned negative readings.` Submissions 50The Union submitted that the Appellant's dismissal was "harsh" and drew attention to the Full Bench decision in Department of Health v Perihan Kaplan [2010] NSWIRComm 65 (at 29-32] in support of its submission that the Board must balance personal and mitigating considerations against the gravity of the misconduct. In that regard, the Full Bench had given consideration to the following factors in determining whether the dismissal was harsh: (a)Whether the punishment was disproportionate to the gravity of the misconduct; (b)The personal circumstances of the dismissed employee; and (c)Mitigating circumstances and past good conduct of the employee. 51The Union submitted that the Commission ought to take into account the following factors in arriving at its conclusion that Mr Jameson's dismissal was harsh: 51.1The Appellant returned a low reading - consistent with his explanation of a one-off occasion; 51.2He had no intention of attending work with drugs in his system and he was aware that the small amount he smoked had not left his system, he would not have gone to work. 51.3Mr Jameson was randomly tested for a drug test on 2 January 2012. There was no evidence that he was obviously under the influence of drugs and no real evidence that he had endangered himself or any other person through his one-off cannabis use. 51.4There was no evidence that Mr Jameson had a dependency on drugs and is able to attend for work drug and alcohol free. 51.5Mr Jameson's judgment was impaired by alcohol when he smoked a small amount of cannabis at the New Year's Eve party. In addition, he was pre-occupied with the fact that his mother was ill and the suicide he had witnessed a short while before. 51.6Mr Jameson had admitted his mistake, was honest and co-operated in the investigation. 51.7Mr Jameson had worked with RailCorp for 10 years and his performance and disciplinary record were both good. 51.8The hardship the dismissal has caused Mr Jameson as he has no skills outside of his job with RailCorp. 52The Union drew the Commission's attention to other TAB decisions where employees have been returned to work in circumstances where they had been in breach of the Respondent's Drug and Alcohol Policy: Keuenhoff v RailCorp [2012] NSWTAB 10; Walters v RailCorp [2012] NSWTAB 3, Tauia v RailCorp [2012] NSWTAB 27; and Dickson v RailCorp [2012] NSWTAB 9. 53In conclusion, the Union sought the reinstatement of Mr Jameson to his former position and location with full back pay and continuity of service. 54It was submitted on behalf of the Respondent that it did not cavil with the outcome in Perihan Kaplan but pointed out, however, that the Board can apply the same reasoning in the present circumstances as that applied by the Full Bench of the Industrial Court in Elafchal v RailCorp [2012] NSWIRComm 90 where it was found that the Board had properly and fairly summarised the Appellant's personal circumstances but had determined that issues of incompatibility and lack of trust could not be overcome by personal factors. 55The Respondent pointed out that no supporting medical evidence was produced by the Union in relation to its claim that the positive reading returned by the Appellant was a "low reading", consistent with one off use and not indicative of heavy or regular use. 56The Respondent did not accept that the Appellant had an "honest belief" that the cannabis he had smoked had left his system before he reported for work. It was pointed out that the Appellant attended drug and alcohol rehabilitation for lengthy and significant drug use in 2007 and, therefore, it was implausible that he would not have knowledge of the retention of cannabis in the system. 57It was pointed out that the Respondent has a zero tolerance policy in relation to drugs and alcohol and being under the "influence" is not the standard it has set in that regard. The Appellant, it was submitted, had breached that policy as a result of attending for work with a reading of over 4 times the cut off level of drugs in his system. 58It was also submitted on behalf of the Respondent that the Appellant, by breaching the Drug and Alcohol Standards for the second time, has demonstrated that he is not able to attend work drug and alcohol free. 59The Respondent refuted that the Appellant's disciplinary history can be regarded as good bearing in mind that this was his second breach of the Drug and Alcohol Policy. 60In relation to the submission that the Appellant would find it difficult to obtain alternative employment, the Respondent pointed out that the Appellant was employed as a cleaner and hence his stills are general skills which are transferable to occupations outside of RailCorp. 61In relation to previous appeals which had resulted in the Board reinstating Appellants to employment with RailCorp, the Respondent submitted that each case must be considered on its own merits. Nevertheless, it was submitted that the matters relied on by the Union could be distinguished as follows: In relation to Keuenhoff, it was a first breach of the policy by the Appellant and he had a medical condition which impacted on his ability to metabolise alcohol. In relation to Walters, the positive alcohol reading was also a first breach of the policy by the Appellant. In relation to Tauia, the positive alcohol reading was also a first breach of the policy. The Board had also placed some weight on his age and area of expe2rtise and narrow work experience with respect to his employment prospects which is in contrast with the present Appellant whose general skills are transferable. Finally, in relation to Dickson, the positive reading was not only a first breach of the policy but was attributed to the inadvertent consumption of cannabis as a result of his partner's messy cooking habits. Findings 62RailCorp's Drug and Alcohol Policy prescribes that RailCorp is a drug and alcohol free workplace and that it is the responsibility of each employee and contractor to ensure they are drug and alcohol free while they are at work. Test readings below the cut off level stipulated in the Australian/New Zealand Standard 4308 is considered a "negative" result. 63Mr Jameson breached the Respondent's Drug and Alcohol Policy on two occasions. The first breach was in 2007 when he tested positive for alcohol but he also tested positive for cannabis at that time. The second breach was on 2 January 2012. 64On the first occasion, Dr Moss noted that "I do not think further counselling will reduce his risk of relapse as Mr Jameson does not consider his alcohol drinking is a problem". Dr Moss, in summarising her findings also stated that "Mr Jameson appears to have remained abstinent from cannabis. I believe he has a low risk of knowingly relapsing however he is at risk of smoking cannabis when he is so intoxicated with alcohol that he has memory loss and does not know what he is doing". 65That is indeed what occurred on New Year's Eve 2011. Mr Jameson attended a party, had a few drinks with his friends and then accepted a joint. Mr Jameson reported to Dr Moss on 17 January 2012 that he was offered a joint and he accepted it. In correspondence to Mr Armstrong on 20 April 2012, he stated that he thought he may have only had a puff as he was felling normal and had shared the joint with other people. During cross-examination, he admitted that he had a few puffs of the joint. 66Mr Jameson agreed, during cross-examination, that he was aware from drug and alcohol counselling and from his experience with cannabis back in his teenage days that it stays in one's system for a long time and "can go within three days". Yet the Appellant had returned to work within two days. 67Mr Jameson confirmed that he was offered counselling the day after he witnessed the suicide and had refused it. He further confirmed that he had not made any attempt to contact Mr Hoffman to say that he had changed his mind and required that counselling nor had he sought any assistance from the Employee Assistance Program which was available to him. 68In response to a question from the Bench, Mr Jameson confirmed that he had no independent proof that he had taken any steps to address his emotional issues - the suicide he had witnessed in November 2011 or his mother's ill health - prior to the positive drug test on 2 January 2012. 69Whilst the Board accepts that Mr Jameson is keenly aware of his obligations in relation to the Drug and Alcohol Policy and did not intend to attend work under the influence of either, it is noted that he does not accept that he has an alcohol problem and, whilst under the influence of alcohol, is prone to peer pressure to smoke cannabis. That is exactly what happened on the second occasion. 70Mr Jameson's position as Rover Cleaner requires him, while a train is in service, to walk through with his partner and clean the carriages between the hours of 8.30 am and 4.30 pm. 71The Board also accepts that Mr Jameson is truly contrite and wants to return to work with the Respondent. Nevertheless, it would be unsafe, given the nature of his work, to reinstate him to his previous position given the circumstances described above. 72It is concluded that the Respondent had no other alternative but to dismiss the Appellant from employment as the other disciplinary options available to it would not have been appropriate given his role and given the gravity of the offence. 73The Board finds that the decision to dismiss Mr Jameson is appropriate in the circumstances detailed above. Order(s) 74The appeal of Mr Norman Jameson against the disciplinary action of dismissal by RailCorp is disallowed. I Tabbaa AM 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: 10 October 2012