| Summary |
UNJUSTIFIED DISMISSAL – Serious misconduct – Respondent conducted random drug search in accordance with collective employment agreement (“CEA”) - In applicant’s car, dog handler (“W”) located tin containing cannabis and small empty plastic bags commonly used for carrying methamphetamine drug P (“P bags”) – Empty P bags also found in applicant’s handbag – Applicant suspended - Applicant dismissed at end of disciplinary meeting next day - Respondent argued applicant admitted to W tin was applicant’s and contained cannabis – Applicant denied admission, claiming no knowledge tin in car and cannabis belonged to friend – Applicant claimed respondent unfairly applied zero-tolerance policy rather than considering explanation - Issues for determination firstly whether circumstances amounted to “possession” as contemplated by CEA, secondly whether in circumstances fair and reasonable employer would have dismissed applicant - Authority found resolution of both issues dependant on factual finding of whether applicant admitted knowing what was in tin before W showed applicant tin’s contents - CEA stated possession of illegal drugs normally warranted dismissal - No definition of “possession” in CEA – Authority found as matter of construction of CEA, should imply element of knowledge about presence or whereabouts of illegal drugs at workplace by person said to possess them – Found therefore respondent must establish that was cannabis in applicant’s car and applicant knew it was there – Authority noted allegation of serious misconduct such as possession of illegal drugs must be supported by evidence as compelling as the allegation is serious – W gave evidence that applicant admitted tin was hers and said contained cannabis – Plant manager (“G”) and operations manager (“C”) claimed standing nearby and overheard conversation – G and C supported W’s account – Applicant claimed G and C too far away to have heard – Authority preferred evidence of W, G and C – On balance, Authority found G reasonably concluded more likely than not that applicant knew cannabis in car and consequently was in possession of it – Authority found safety-sensitive work environment justified zero tolerance for illegal drugs, but managers required to make assessment of all evidence and circumstances of alleged misconduct - Found applicant’s admissions were central to G’s assessment during disciplinary investigation – Authority accepted G critically assessed evidence and reached honest belief that applicant committed act of serious misconduct to which zero-tolerance policy could reasonably be applied – Found G put aside from consideration that applicant’s partner was Mongrel Mob leader, applicant’s other admissions that used P in past and used cannabis outside work, and rumour applicant dealt drugs in workplace – Authority accepted policy not operated in blanket or automatic manner – Not unreasonable for G to decline to review decision to dismiss applicant following later visit by applicant’s friend who claimed responsibility for possession of drugs – Dismissal justified - Meat works' worker |