A Health Safety and Environment (HSE) adviser has claimed he was pressed to sign a Deed of Release – alleging he complied “in the heat of the moment” and therefore the resignation was invalid.

Dismissing the employee’s general protections’ application involving dismissal, Fair Work Commission (FWC) Deputy President Wright found the fly-in-fly-out adviser – who worked for a crane operator at a South Australian wind farm – voluntarily resigned.

The case highlights two issues familiar to AREEA members: an employee’s non-negative drug and alcohol test and a claim of forced resignation.

Employee warns drug and alcohol test ‘will be non-negative’

In late 2024, the employer issued a seven-day notification to all employees introducing client-mandated drug and alcohol (D&A) testing. All workers would have to undertake testing on their return to work from Rest and Recreation (R&R).

This related to the high-risk nature of the crane work and was a consequence of recent random non-negative testing of employees.

The HSE adviser and the employer agreed that if an employee initially recorded a non-negative result, the worker would be stood down without pay and required to obtain a confirmatory test with a negative result before going back to work.

Prior to returning from R&R, the worker called and advised a colleague that he was concerned about testing positive for his prescription medication, diazepam.

Employee claimed he had already disclosed diazepam use

Evidence arose of a dispute about whether the employee had declared he was taking prescribed medication as required by the drug and alcohol procedure.

The HSE adviser said he disclosed he was taking the medication during his initial medical examination on joining the employer via a labour hire company – and again during his pre-employment medical when he was directly engaged in September 2024.

‘Reasonable request’ to undertake D&A test

The employer insisted on a drug and alcohol test and wanted information on the employee’s prescribed medications, as well as a medical practitioner-certified copy of prescriptions.

It also informed the HSE adviser that his continued refusal and failure to attend a drug and alcohol test would be deemed as a non-negative result pursuant to the company’s drug and alcohol procedure.

The employee was then required to attend a meeting to discuss his failure to follow reasonable lawful requests, and warned that further refusal could result in investigations and possible disciplinary action.

In response, the HSE adviser said he was not able to attend the meeting, that he was covered by a medical certificate and that he needed to have his union representative at the meeting.

Eventually, the worker did undertake testing.

The results confirmed the need for a further test and he was stood down on pay, pending an investigation into his behaviour and conduct over the period since his R&R – including his failure to notify the employer of his usage of prescribed drugs and the delay in taking a D&A test.

Shortly after, the employer issued a show cause letter.

Over the next two days, a series of e-mail exchanges and telephone calls culminated in a decision that the HSE adviser’s employment would cease, via a Deed of Release.

The employee signed the deed and sent it to the employer by email.

It provided that settlement monies, which comprised leave, stand down payment, payment in lieu of notice and an ex gratia payment would be deposited within seven days of both parties signing.

The deed required the adviser to acknowledge he had signed voluntarily, without duress from any party and that he understood the consequences of the release and indemnity.

However, in bringing his application, the HSE adviser would claim he had “no money and was broke and that is why he signed the deed”. He alleged his employment was terminated at the employer’s initiative.

DP Wright dismissed this contention:

“Given that the cessation of (the adviser’s) employment arose from the parties agreeing to the deed … I believe that it is unlikely that he … resigned in the ‘heat of the moment’.

“(His) contention that he was forced to sign the deed appears to be a submission that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by (the employer).

“There is no indication that his feelings of distress continued … during the period which culminated in the signing of the deed.

“There is no evidence before the Commission, apart from (the employee’s) verbal testimony at the hearing, that establishes he was pressured by (the employer) or his financial circumstances to sign the deed.

“I accept that his email … shows that he was concerned about his financial situation at that time. However, as this email was sent after he signed the deed, these concerns cannot be relied upon as the reason that he signed the deed.

“I do not accept that he was forced to agree to the termination of his employment because of conduct … engaged in by the employer. As such, I find that he was not dismissed.”

Implications for employers

AREEA members, particularly HR advisers, are well versed in dealing with employees trying to side-step unfair dismissal rules by using general protections’ applications.

This often occurs when the employee does not meet unfair dismissal eligibility requirements (such as six months’ service).

The “scattergun” approach of using a temporary illness to delay D&A testing and ultimately claiming coercion over a Deed of Release underlines how general protections’ provisions can be misused.

Unfortunately employers must respond to all FWC applications – no matter how misguided the claim.

Notable is that the Commission does not have power to set aside a Deed of Release.

DP Wright said “even if I had found that he was dismissed, it is unlikely that I would have been able to deal with his application because of the (presence of the) deed.”

For more information or advice: [email protected].