The Fair Work Commission supports stringent drug and alcohol policies in safety sensitive industries particularly, thus
“[52] While not the subject of challenge in the appeal, we record briefly our view that the Commissioner’s approach to considering these matters in the context of s 387(h) was correct. As noted by the Full Bench in Sydney Trains v Gary Hilder [2020] FWCFB 1373, a case involving the dismissal of an employee who returned a positive result for cannabis metabolites who was dismissed for breaching his employer’s drug and alcohol policy:
[29] …The only question to be resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This required an assessment of the importance of the Policy in the context of Sydney Trains’ operations and Mr Hilder’s work duties.
[30] This matter was not addressed in the decision in relation to s 387(a). Instead, the Deputy President erroneously focused on Sydney Trains’ “zero tolerance” approach to breaches of the Policy and its apparent inconsistency with Sydney Trains’ position that it would take into account any relevant mitigating circumstances before deciding on its disciplinary response. We do not consider that these were matters relevant to whether there was a valid reason for the dismissal, since they did not concern Mr Hilder’s conduct but rather Sydney Trains procedural and substantive disciplinary response to that conduct. If the consequence of Sydney Trains’ “zero tolerance” was that it would not give any consideration to any mitigating circumstances advanced by any employee who has been found to have breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal was a disproportionate response to the conduct in question because Sydney Trains had failed to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But in the context of s 387(a), they were simply distractions.
[53] Consistent with this approach, the Commissioner considered Mr Hawken’s contentions as to the Respondent’s failure to adhere to its procedure in her assessment of relevant matters under s 387(h). The Commissioner accepted that the Respondent had not issued Mr Hawken with a third written warning before the show cause meeting was convened. But, in light of the Commissioner’s conclusion as to the correct interpretation of the D&A Procedure to which we earlier referred, the Commissioner concluded that the provision of a warning was incompatible with the show cause process that was adopted, where that process resulted in Mr Hawken’s dismissal.
[54] Having regard to the Commissioner’s detailed examination of this issue in the context of her consideration under s 387(h), the contention that the Commissioner erred by “not considering” the Respondent’s failure to issue a third written warning cannot be accepted. Nor are we persuaded that the Commissioner failed to consider Mr Hawken’s contention that he was treated differently when his 23 October 2023 on-site negative sample was sent for confirmatory testing, contrary to the usual random selection process. The Commissioner addressed this issue at paragraph [80] of the decision and was satisfied, as paragraphs [100] and
[103] of the decision make sufficiently clear, that the Respondent had deviated from its D&A Procedure by sending Mr Hawken’s sample for confirmatory testing. The contention that the Commissioner failed to consider this issue is not made out.
[55] Having found that the Respondent had “deviated” from its procedure in the manner described, the Commissioner was required to consider and give due weight to this matter, and each of her findings in relation to the matters specified in s 387 of the Act, as a fundamental element in determining whether Mr Hawken’s dismissal was harsh, unjust or unreasonable.31
That is so because it was a matter the Commissioner considered relevant for the purposes of s 387(h) of the Act. This is precisely what the Commissioner did, noting at paragraphs [99]-[100] as follows:
[99] I have made findings at paragraphs [76]-[82] in regard to the Respondent’s failure to comply with its own policies and D&A Procedure. Whether or not the Respondent has failed to comply with its own policies and procedures is indeed a relevant consideration when considering other relevant factors and will ultimately have some bearing on whether or not the dismissal is unfair.
[100] However, in my view, a failure of an employer to comply with its own policies and procedure has to be considered in the particular circumstances of each case and weighed against all of the other factors. In this case, the seriousness of Mr Hawken’s conduct outweighs the Respondent’s failure to comply with its own policies and D&A Procedure.
[56] While the Commissioner regarded the Respondent’s deviation to be a mitigating factor in Mr Hawken’s favour, it was open to the Commissioner to conclude that the dismissal was not unfair when all the circumstances were taken into account. The weight to be assigned to the conclusions that the Commissioner reached in respect of the matters specified in s 387 of the Act was a matter for the Commissioner.32 Any disagreement about the weight attributed to these relevant matters, where they were otherwise the subject of proper consideration in the decision, is not a sustainable ground of appeal. In this case, the mitigating factor was balanced by the Commissioner against the fact that Mr Hawken had received two prior written warnings, the second of which remained “in force,” and the safety critical nature of the Respondent’s workplace.33 Ultimately, the Commissioner was not persuaded that the mitigating circumstances raised by Mr Hawken made his dismissal a “disproportionate response,”34 and the Commissioner reached an overall conclusion that the dismissal was fair, notwithstanding the Respondent’s deviation from compliance with the D&A Procedure.35 In the circumstances, we do not consider that the Commissioner’s conclusion at paragraph [100] of the decision is attended by appealable error.
[57] We note that Mr Hawken submits that the Commissioner’s “personal view” of the conduct should not be the “deciding factor in this matter.” The impugned “personal views” of the Commissioner are not apparent from Mr Hawken’s submissions. Nor is it explained how such personal views affected the Commissioner’s dispositive reasons. In the absence of material that fairly articulates the nature of Mr Hawken’s concerns, we consider it unnecessary to say anything more about this contention. The Commissioner was called upon to make an overall assessment as to whether the dismissal was harsh, unjust or unreasonable based on the facts as she found them. The Commissioner did so.
[58] For these reasons, ground (3) fails.”
Appeal by Hawken v Patrick Stevedores Holdings Pty Limited – Re – [2024] FWCFB 463 delivered 18 December 2024 per Gibian VP, Millhouse DP and Hampton DP