The Fair Work Commission has upheld as justified the dismissal of a poultry farm worker who was found unconscious in a work vehicle – prompting colleagues to call paramedics.

His employer failed to accept the worker’s explanation that he had taken hay fever medication and was a “heavy sleeper”, with subsequent conflicting stories and refusal to undertake a drug test enough to warrant dismissal.

Background

After a 12-hour day at the poultry farm on the NSW Central Coast, the employee was a passenger in a work vehicle driven back to a Sydney depot.

On arrival, he could not be woken.

His co-workers attempted to rouse him for 45 minutes, eventually calling Ambulance NSW.

While paramedics found the worker unconscious, he regained consciousness after “postverbal and physical stimulation”.

He then “refused further assessment,  refused observations and rejected numerous offers to be driven home”.

The paramedic report concluded he had taken “drugs of some kind on the day of the incident” but had “refused to state which drug”.

‘Heavy sleeper’ and ‘headache and hay fever’ failed to convince employer

The employee’s unfair dismissal witness statement explained:

“I had hay fever and a headache earlier during the day, so I took some Phenergan pills … I don’t remember falling asleep. I am a very heavy sleeper and extremely hard to wake up at the best of times.

“All I remember is waking up to paramedics from an ambulance asking me if I was OK. I told (them) I was fine.

“One of the paramedics asked me if I took anything. I replied … that I took some pills but I did not tell them what medication.”

When asked at the hearing why he had refused to tell the paramedics what drugs he had taken, the worker explained he “didn’t like the fuss”.

Refuses to test

Two days after the incident, when pressed by HR as to the medication he had consumed, the worker said he had “taken some prescription meds and had a bad reaction to them, which was why he passed out”.

HR asked him if he could supply proof of the medication and he said he couldn’t.

“He then changed his story to that it was another household member’s prescription meds, but again couldn’t provide evidence of what they were,” a company representative testified.

The worker was then directed to take a drug and alcohol test in accordance with company policy and given three options – test at either of two work sites or with his GP.

Refusing to submit to testing, the worker said he “had some personal issues to deal with”.

He failed to attend the subsequent meeting arranged to discuss his refusal to test.

Deputy President Easton considered his evidence about the drug he took on the day of the incident “not satisfactory”.

“In his witness statement to the Commission he said he took Phenergan, which is innocent enough … (but) if he only took Phenergan there is no logical reason why he did not tell that to the ambulance officers who roused him.

“He told (his employer) that he had taken a prescription drug. Phenergan is not a prescription  drug … (the explanation) did not provide clarity and instead caused even greater concern that he was affected by drugs at work.”

The worker argued he didn’t submit to testing because it was “unreasonable” as “too much time had passed since the incident” and that “the window for detection … would have passed”.

Finding the dismissal was valid, DP Easton considered the worker’s “deeply unconscious state”, admission of having taken a drug (but refusal to identify which one to either his employer or the paramedics) and refusal to submit to a drug test, warranted the dismissal.

Implications for employers

AREEA members will be unsurprised by the outcome of this decision given the facts.

It serves as a timely reminder that no matter how implausible an unfair dismissal application may seem, employers must expect the FWC to deal with each case on its merits. Employers should ensure they can produce sound notes and evidence of the processes through to termination.

Unfortunately, the strength of this employer’s case could not circumvent a hearing and resources to deal with an unfair dismissal application.

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