TERMINATION OF EMPLOYMENT – misconduct – s.394 Fair Work Act 2009 – application for relief from unfair dismissal – applicant required to travel with another employee in a council truck to perform their work – vehicle applicant was driving was involved in a collision – vehicle was impacted by a sedan that disobeyed a give way/stop sign – applicant directed to take a drug and alcohol test which returned a positive result – applicant notified of result the same day – suspended immediately with pay – applicant conceded he had used cannabis three days before accident – applicant advised urine sample would be sent for further analysis – disputed he was told sample would be sent for second or confirmatory test – further analysis determined positive result for cannabis – applicant dismissed on grounds of serious misconduct – respondent drug and alcohol policy demands a zero count for a drug analysis test – Commission found respondent had a valid reason for dismissal, however applicant was not provided with an opportunity to respond to the respondent’s reasons for dismissal – failure to give an employee dismissed for drug use an opportunity to respond to the reasons for termination would not have any bearing on the outcome of the disciplinary process [Hafer v Ensign Australia] – in circumstances where a dismissal for misconduct has been found to be justified, it will be rare for a defect in an internal disciplinary process preceding the dismissal to justify a conclusion that the dismissal was harsh, unjust or unreasonable [Farquharson v Qantas Airways Ltd] – Commission held that even if respondent formally put result to the applicant, and that such should lead to his dismissal, no explanation from applicant would alter the outcome of the matter – found seriousness of applicant’s actions outweighed the procedural faults of the respondent – found applicant not unfairly dismissed – application dismissed. Albert v Alice Springs Town Council
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