C2018/7350, Transcript of Proceedings [2019] FWCTrans 46 (14 February 2019)

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PN1

DEPUTY PRESIDENT CLANCY: Thank you. Could I take appearances, please, here in Melbourne?

PN2

MR G GUORGI: Yes, sir. George Guorgi for Michael, or representing Michael Guorgi.

PN3

DEPUTY PRESIDENT CLANCY: Thank you, Mr Guorgi. Yes?

PN4

MR M BOWER: Bower, M for Transdev Queensland, if the Commission pleases.

PN5

DEPUTY PRESIDENT CLANCY: Thank you, Mr Bower. We're sitting, myself and Anderson DP here in Melbourne; by videolink we've got Spencer C sitting in Brisbane, and we're the Full Bench to hear this application for permission to appeal and the appeal, and as to the substantive merits of the appeal. The Full Bench is in receipt of submissions, firstly in terms of Mr Guorgi, you filed an outline on 31 January 2019, that's correct?

PN6

MR G GUORGI: Yes, that's correct.

PN7

DEPUTY PRESIDENT CLANCY: So the Full Bench is in receipt of that, and then yesterday you have filed a bundle of authorities and references, and I understand to some extent there's an objection from you, Mr Bower, as to those. Is that correct?

PN8

MR BOWER: If the Commission pleases, it's really in reference to not necessarily the authorities, but the additional matters that are set out in that document dealing with the further allegations or claims under anti‑discrimination legislation.

PN9

DEPUTY PRESIDENT CLANCY: All right. Well you can address us on that. Mr Guorgi, when you've heard Mr Bower's objections you can respond to them. All right? Not now.

PN10

MR G GUORGI: Okay. Thank you.

PN11

DEPUTY PRESIDENT CLANCY: Mr Bower, you have filed submissions dated 1 February, is that right?

PN12

MR BOWER: Correct.

PN13

DEPUTY PRESIDENT CLANCY: And Mr Guorgi, you have seen those?

PN14

MR G GUORGI: Yes, I have. I have seen those.

PN15

DEPUTY PRESIDENT CLANCY: Yes, all right. What we'll do now, Mr Guorgi, is we're going to hear from you first. I'd like you to speak to your outline of submissions and make any additional points, or highlight any points that arise out of those submissions. We're not asking you to read the 28 pages word‑for‑word. After that, Mr Bower will have an opportunity to reply, and then further to that, you will then have the opportunity to say a few words in response. Okay? Is it all clear?

PN16

MR G GUORGI: Yes, I think so.

PN17

DEPUTY PRESIDENT CLANCY: My associate has just suggested those microphones, they are to record your voice for the purposes of transcript, but we will ask you to project your voice, speak loud enough so that the Commissioner can hear via the videolink. Mr Guorgi, I take it here what you're in essence seeking to challenge, or you're challenging in seeking to appeal the finding and order as to remedy in the case by Booth C, and in essence what you're saying is that the order for compensation wasn't the appropriate remedy and that reinstatement should have been ordered?

PN18

MR G GUORGI: Yes, that's correct.

PN19

DEPUTY PRESIDENT CLANCY: So in terms of your appeal and addressing those, if that's your focus, I'm just trying to get an understanding of - whilst there may be matters that go to other considerations and other findings of the Commissioner specifically in relation to whether there was a valid reason for the termination, I'm just wondering how much of a re‑trace of that are you going to make, because that finding was made, and I don't think you seek to challenge that, but you're seeking to challenge the outcome as to remedy.

PN20

MR G GUORGI: No, I'm actually seeking both, and I am sorry, having read the objections I understand where Mr Bower was coming from. I'm seeking to challenge the outcome, that there was a valid reason. I don't believe there was. And I'm also seeking to challenge the remedy. There are two parts to the claim, should the first part fail. The second part is that there is an obvious error in the calculation of compensation and hence the reason for - - -

PN21

DEPUTY PRESIDENT CLANCY: All right, but just to go to your first part.

PN22

MR G GUORGI: Yes.

PN23

DEPUTY PRESIDENT CLANCY: There was a finding that there was a valid reason for the termination, but that it was nonetheless harsh, unjust or unreasonable. So to that extent, your brother has been successful.

PN24

MR G GUORGI: In fact, yes, correct on two parts, but I don't believe that there was a valid reason. I believe that that is an incorrect finding, and that will be the focus of - - -

PN25

DEPUTY PRESIDENT CLANCY: All right. But where does that take us?

PN26

MR G GUORGI: Deputy President, I am unfamiliar; I have never done this. When you say where it takes us, the reinstatement of costs are what I am seeking for Michael.

PN27

DEPUTY PRESIDENT CLANCY: Yes, but the finding that has been made, it's harsh, unjust or unreasonable, are you seeking to put a submission that had the finding on valid reason been different that the remedy that would have flowed then was one of reinstatement as opposed to the order for compensation?

PN28

MR G GUORGI: Yes, that's correct, in order that if there was no valid reason for the dismissal, which I don't think there was, then the correct outcome would have been reinstatement and back pay, and to reinstate Michael Guorgi back to where he was.

PN29

DEPUTY PRESIDENT CLANCY: Because the basis upon which the Commissioner has made the finding that reinstatement was not the appropriate remedy is that there was a loss of trust and confidence.

PN30

MR G GUORGI: Yes. I understand that.

PN31

DEPUTY PRESIDENT CLANCY: So that's a finding that you want to take issue with. I'm just not sure how you're going to put it in terms of whether we're going to be arguing what was essentially the argument that was had at first instance, that there a valid reason.

PN32

MR G GUORGI: Perhaps if in my own words, I think the valid reason that was provided was on a very specific interpretation over the drug and alcohol policy, and is very specific and that is what's pointed to, and that was the reason for the final outcome. It wasn't the original reason for the dismissal; it was the reason for the final outcome. That interpretation of the policy is, in my view, incorrect and I believe it has been misquoted, and I believe that the outcome, had that policy and if that policy interpretation stands, and including some of the comments and requirements for an employee to report all the medications that they take regardless of its relevance to the work, I believe that's fundamentally unlawful and exposes people to discrimination. I think it's an incorrect interpretation of the policy. I don't think it's written that way, and that was a focus of the submission that I think that the intent desired by the employer doesn't exist in the words that are used to describe the policy - the words in the policy, I beg your pardon.

PN33

DEPUTY PRESIDENT CLANCY: So is that where you want to start?

PN34

MR G GUORGI: I am happy to start there.

PN35

DEPUTY PRESIDENT CLANCY: All right.

PN36

MR G GUORGI: First is by way of summary. I am not going to read this, having read all my comments in the past, and it's difficult not to repeat myself because the outcome here seems obvious and that Michael, after going through all of these hearings and all the investigations and statements by both parties, and particularly by the employer, of the hundreds and hundreds of pages that have been submitted, and an investigation, you're going to find in this report, there was over 200 pages, all of that distils down to one interpretation of the policy. The previous allegations, the basis upon which the dismissal was made, summary dismissal, was on tampering with evidence, and it was found that it was not held. But to go further, the interpretation of that policy, if I can just point to - in the outline of submissions - if I can just point to the interpretation, and reading over the policy by Booth C, there is a section called 25 on page 12.

PN37

DEPUTY PRESIDENT CLANCY: Yes.

PN38

MR G GUORGI: Errors, interpreting of the drug and alcohol policy, I go through that in various pages to state that:

PN39

The policy was not read and conveyed in the way that it is written. The policy is written lawfully and reasonably such that it is only the effects of medication relevant to an employee's work, and this is in a safety context, that if it impairs then they report.

PN40

That's the reading. That is not the reading that was made. The reading that was made was that - if you look at item (d), page 13 - 25(d) - it is read without the second part of the clause. In other words, it is read as if every single medication needs to be reported regardless of whether it is an impairment on the employee's work and if it is not a safety issue.

PN41

DEPUTY PRESIDENT CLANCY: So what is the finding of the Commissioner you say is wrong?

PN42

MR G GUORGI: The wording of the Commissioner - the Commissioner's finding was that Michael Guorgi was in breach of section 5.3, because he didn't report to taking his medication of Nurofen Plus.

PN43

DEPUTY PRESIDENT CLANCY: Take us to the part of the decision.

PN44

MR G GUORGI: Sorry. Okay, 88, page 12 of the decision.

PN45

DEPUTY PRESIDENT CLANCY: Yes. Thank you.

PN46

MR G GUORGI: Document 2. It states:

PN47

By failing to report the taking of Nurofen Plus, and failing to complete a medication declaration form until well after the testing, Mr Guorgi was in breach of the D & A policy. Accordingly, the first and second allegations are substantiated on the evidence. Everything falls from the interpretation of the policy that it was breached because he didn't submit a form to advise the company that he was taking Nurofen Plus.

PN48

DEPUTY PRESIDENT CLANCY: Could you take us to the policy? Where is the - you've got a section of the policy, but in your appeal book where is the drug and alcohol policy? Is it tab 15?

PN49

MR G GUORGI: It is tab 15.

PN50

DEPUTY PRESIDENT CLANCY: Yes.

PN51

MR G GUORGI: If you go to page 29.

PN52

DEPUTY PRESIDENT CLANCY: Page 29, yes.

PN53

MR G GUORGI: Page 29, section 5.3.

PN54

DEPUTY PRESIDENT CLANCY: All right.

PN55

MR G GUORGI: And that policy reads:

PN56

The use of prescription or over the counter medications may impair a person's ability to safely perform their role. Workers taking prescribed drugs for OTC medications are to obtain advice from their doctor or pharmacist for OTC medications as to the effects of the drug that may be relevant to the person's work performance. This information must be conveyed to the safety, quality and risk manager prior to commencing work or as reasonably practicable once the taking of such medication commences.

PN57

That clause, the second part of that:

PN58

Employees who are required to take prescribed or over the counter medication on a long‑term basis that may impact their ability to safely perform their role must also obtain written advice from their doctor as to the general nature of the problem, drugs described and period of medication. It will then be the responsibility of the employee to notify their manager and obtain a medical clearance before being cleared for work.

PN59

Notification of prescribed or over the counter medication must be reported using the medication declaration form. The safety, quality and risk manager is responsible for managing the process and notification from employees and any subsequent actions.

PN60

It's the first clause that was not quoted correctly, I believe, with respect, in the decision.

PN61

DEPUTY PRESIDENT CLANCY: All right. But does not the clause 5.3 of the drug and alcohol policy deal with a number of scenarios and you've got to read the whole clause?

PN62

MR G GUORGI: It does. The first part - if I take your meaning, the first part of that and paragraph refers to medications. The second part is very specific to long‑term medications that may be taken, and again, if they may impair somebody's performance. The third part is merely the process of reporting and notifying the business, filling in the medication declaration form.

PN63

DEPUTY PRESIDENT CLANCY: In the case of your brother, did he fall into the scenario of the third paragraph?

PN64

MR G GUORGI: No, I don't think he did.

PN65

DEPUTY PRESIDENT CLANCY: What do you mean?

PN66

MR G GUORGI: The third paragraph is if notification is required from the first paragraph and the second paragraph. The notification needs to be via the medical declaration form. That is the process of notifying the business, filling in that form to convey to the business the problem, if there is a problem. So that reading, and in - - -

PN67

DEPUTY PRESIDENT CLANCY: Don't the first two deal with scenarios where there's a possible impairment, but the third is a blanket requirement that if you're on over the counter medication or prescribed medication that that's got to be reported regardless?

PN68

MR G GUORGI: Well if that is taken in isolation, then that is fundamentally unlawful, because then it exposes people who don't want to disclose things, and shouldn't have to at risk of being discriminated against. That cannot be read in isolation of the first two. Notification has to be of something, and if I could just go the actual outcome of this case, of all of these allegations the final outcome was that Michael Guorgi was dismissed from his employment because he didn't submit a medication declaration form, as alleged by the employer, to advise the employer that there was no impairment. He saw his doctor, as per the first clause. There was no impairment that there was to report, and so his dismissal was because he didn't fill in the form to tell the company that there was nothing to inform.

PN69

DEPUTY PRESIDENT CLANCY: He didn't notify, did he?

PN70

MR G GUORGI: I beg your pardon?

PN71

DEPUTY PRESIDENT CLANCY: He did not notify. The evidence before the Commissioner was he did not notify the employer.

PN72

MR G GUORGI: There are circumstances of notifying the employer, but based on whether or not there is an impairment and that impairment comes from a discussion with the doctor beforehand. Michael Guorgi's background is that he is a very experienced drug and alcohol tester. He knows this, and he actually runs this process. He has conducted hundreds of these tests. Notification is only required if there is something to impair; otherwise, you have to record everything, and that's precisely what the company has said. The show cause letter specifically states that no drug and alcohol taking will be tolerated unless it's declared on the medication declaration form. That's in the show cause letter, and so that is taking that third paragraph in isolation from the need to notify. The question of notifying comes from whether or not there is an impairment, or a determination that there may impair. In context, this is Nurofen Plus. At the time, it was a safe medication; Michael Guorgi was employed when they knew he was taking Nurofen Plus; the company itself has said they have no problem with Nurofen Plus - it is safe. If he made the same decision today that he took Nurofen Plus, there is no safety risk introduced. It doesn't affect his work. He sits at a desk and he types. There is no risk. There is no safety risk; the company doesn't have a problem with it. That's the perversity of this outcome, the fact that his actions, had he repeated them, introduces no safety risk, and the company agrees with him. Nobody disagrees. It's not a risky substance.

PN73

DEPUTY PRESIDENT CLANCY: That construction of the clause would lead to either an employee who takes a drug self‑concluding that it does not constitute an impairment and therefore does not need to be notified to the employer, or the medical practitioner of that employee informing the employee that that's their view. It would lead to the employer having no capability of being informed of the taking of the drug and therefore applying its duty of care to determine whether or not work is at risk of being conducted safely due to the taking of a drug by an employee. That can't be a reasonable interpretation of clause 5.3, could it?

PN74

MR G GUORGI: The requirement of this policy, of course that is a logical outcome. In an attempt, in my paltry way, to come up with some cases that define this, I've read of cases where there are ferry captains, in the Thomas case, who drove some ferry and drove into something - I understand that, and it is logical and reasonable and completely lawful. We fully support, and Michael fully supports, the writing of this policy as it stands. The requirement is that the employee have a conversation with his doctor about the medication that he is taking and a conversation about whether that is going to impair him. The decision as to whether it impairs is a logical one that has to take place, and it's that question of impairment that only the doctor can make. Michael Guorgi says this. He supports it fully, that it was not his decision to make, and in cross‑examination, Michael says - and I've written it in my submission, it was in response to a question - that he completely agrees with it. Of course it's not his decision. He's not a doctor. He is trained to identify drugs and risky drugs in his testing of employees - that's logical, but he is not discounting it.

PN75

I think the interpretation of the policy, as it is now, is what I believe Booth C has interpreted. It is removing that second part, which is, "As to the effect of the drug that may be relevant to the person's work performance." If you remove that, that policy becomes an unlawful one in my view - I'm not a lawyer - because it then requires everybody to report everything. The managing director's letter in his show cause letter says that: "We will not tolerate anything unless you report it." That is not how they work.

PN76

DEPUTY PRESIDENT CLANCY: Why is that unlawful?

PN77

MR G GUORGI: Well, because it exposes people. I have submitted - - -

PN78

DEPUTY PRESIDENT CLANCY: Exposes them to what?

PN79

MR G GUORGI: Sorry, I don't know if I was supposed to submit this - possible discrimination. The Sex Discrimination Act and the Disability Discrimination Act prevent any behaviour that will or likely to, I think the words are - I printed copies of these. Was I supposed to provide those to you, the copies of the attachments - the hard copies?

PN80

DEPUTY PRESIDENT CLANCY: The hard copies of what?

PN81

MR G GUORGI: Well the references and authorities, I didn't know how I was supposed to handle this.

PN82

DEPUTY PRESIDENT CLANCY: But was this argued before the Commissioner?

PN83

MR G GUORGI: It was argued that he didn't need to report - - -

PN84

DEPUTY PRESIDENT CLANCY: No. Firstly - - -

PN85

MR G GUORGI: Are you saying did I say - - -?

PN86

DEPUTY PRESIDENT CLANCY: Yes.

PN87

MR G GUORGI: - - - the Disability Act and the Sex Discrimination, did I bring that up, well no.

PN88

DEPUTY PRESIDENT CLANCY: All right.

PN89

MR G GUORGI: No, I didn't argue that those two - but I did say that you cannot interpret that policy in that way, because it's just unfair. I mean, why would you - why would anyone - and I gave some examples here of someone coming in, if it has nothing to do with the employer's work and their business, then they've got no business asking private questions that have nothing to with safety, nothing to do with the person's work performance. I appreciate that Transdev is obviously a very large national transport provider, an international transport provider, so they have policies that they need to implement to make things safe. Nobody is arguing it, and the way that this policy is interpreted in fact is exactly the same way that the managing director interpreted it, and also the same way that the state safety manager in Queensland, Sandra Taylor, interpreted the policy, and I think that was missed, and I think if you look at, in my submission, the reference to that - sorry, I'll - - -

PN90

DEPUTY PRESIDENT CLANCY: I understand your submission is this, that you say Booth C made an erroneous finding as to what the drug and alcohol policy required.

PN91

MR G GUORGI: Yes, and I think the interpretation placed upon that is not something - is - I was trying to find a lot of definitions, what is public interest; I mean, that there is very particular interpretations of things. That was one of them. It's very hard to find what is in the public interest.

PN92

DEPUTY PRESIDENT CLANCY: Yes, but the discrete point you're trying to argue here is that the Commissioner was incorrect in her finding about what was required under the policy?

PN93

MR G GUORGI: That is my position, yes.

PN94

DEPUTY PRESIDENT CLANCY: And that wasn't open to her on the wording of the policy?

PN95

MR G GUORGI: I beg your pardon?

PN96

DEPUTY PRESIDENT CLANCY: And that was not open to her on the wording of the policy?

PN97

MR G GUORGI: Not the way this has been written, correct.

PN98

DEPUTY PRESIDENT CLANCY: So this is an argument as to interpretation, and you made that argument, and Mr Guorgi made that argument, for the Commissioner?

PN99

MR G GUORGI: Without referring to the Act, correct, but I didn't - - -

PN100

DEPUTY PRESIDENT CLANCY: I'm just focussing on the wording.

PN101

MR G GUORGI: Yes, that there was no impairment, correct.

PN102

DEPUTY PRESIDENT CLANCY: No, as to how you say the wording should be interpreted, and the Commissioner has taken a different view to which you put?

PN103

MR G GUORGI: Yes.

PN104

DEPUTY PRESIDENT CLANCY: All right. Was there any other evidence as to how this policy was to operate, or how it did operate?

PN105

MR G GUORGI: Well Michael Guorgi was the only person there presented by the employer as a drug tester, and how that policy was interpreted. In the findings report, two other authorised testers were interviewed about the policy and how it was interpreted with the medication declaration forms, and that information was sealed. It was signed "Confidential," because for some reason they weren't going to present it.

PN106

DEPUTY PRESIDENT CLANCY: No, but what was presented at the case? What was argued before the Commissioner about how clause 5.3 should be interpreted?

PN107

MR G GUORGI: Clause 5.3 is - it doesn't say in that first part that if it's not a long‑term - that second paragraph refers to long‑term. The first part refers to what Michael Guorgi was taking, which is the short‑term pain medication. In that first part you are required to see your doctor.

PN108

DEPUTY PRESIDENT CLANCY: I understand that.

PN109

MR G GUORGI: I'm missing the question, sorry.

PN110

DEPUTY PRESIDENT CLANCY: Yes. What I am asking you is Mr Guorgi gave some evidence before the Commissioner, and his evidence went to what he thought he was required to do under clause 5.3.

PN111

MR G GUORGI: Yes.

PN112

DEPUTY PRESIDENT CLANCY: Was there other evidence about what clause 5.3 required? So did any other witness say this is how 5.3 applies, this is how it is applied, everyone knows that's applied, et cetera? Was that addressed in the matter before the Commissioner?

PN113

MR G GUORGI: There were a number of questions posed to the witnesses from the employer, specifically Ms Tilly Loughborough, the managing director, and Sandra Taylor, at the time the state safety manager, health and safety manager, and questions were asked of them. There are two positions that they take. In the letter, they say they will not tolerate any drug and alcohol taken without a declaration. If the policy was so required, it's very simple to fix. All they needed to say, if that was the case - - -

PN114

DEPUTY PRESIDENT CLANCY: I understand this.

PN115

MR G GUORGI: Sorry.

PN116

DEPUTY PRESIDENT CLANCY: We're having a debate about the interpretation of some wording in a clause. I'm now looking for some other evidence beyond what is the wording in the clause, if indeed there was any.

PN117

MR G GUORGI: I understand. Thank you, Deputy President.

PN118

DEPUTY PRESIDENT CLANCY: So was it applied in a particular way by the company; did someone give evidence as to that; is there other evidence? What was put in the letter of termination is the company's interpretation of the policy.

PN119

MR G GUORGI: Yes.

PN120

DEPUTY PRESIDENT CLANCY: What else was there, if anything?

PN121

MR G GUORGI: The managing director gave evidence as to her cough syrup, taking - I've actually misplaced my - - -

PN122

DEPUTY PRESIDENT CLANCY: Yes?

PN123

MR G GUORGI: Her evidence of cough syrup‑taking. That evidence was her decision. She presented that and went through the steps of what she did - spoke to a pharmacist, and she believed there was a risk and so she submitted this form. In her description - and I'm sorry, I have misplaced my submission. The argument, or the submission in this document, was that Michael Guorgi interpreted the policy exactly the same way as the state safety manager and the managing director. So if you look at section 29, page 19, Michael Guorgi declared two medications on the morning of 14 November. He was taking antibiotics and he was also taking Nurofen Plus for his pain, one over the counter, the other one prescription - the antibiotics. The state safety manager showed no interest in the antibiotics, and her statement was very clear where she did not expect anybody who was just taking the antibiotics to come to work and declare that. She stated that.

PN124

DEPUTY PRESIDENT CLANCY: Where is that?

PN125

MR G GUORGI: That is stated - it is in my submission, excuse me - - -

PN126

DEPUTY PRESIDENT CLANCY: You see, Ms Taylor in her witness statement says at paragraph 28:

PN127

Under the D & A policy, the requirements for reporting both prescribed and over the counter medication was strict. A person would need to declare any medication they were taking that potentially may impair their ability in regards to their health or safety, or those such as customers or co‑workers, on a medical declaration form. Sometimes a medical clearance from a doctor would be required prior to commencing work.

PN128

Para 29:

PN129

Under the D & A policy, any prescription or over the counter medication being taken by a Transdev worker that could impact the outcome of drug‑testing or the work such as causing drowsiness needed to be declared on a medical declaration form and recorded on a database that only Mr Guorgi, Mr Clark and I could access in a case of a future drug and alcohol test.

PN130

MR G GUORGI: That's correct, and I believe the operative words in that clause and that statement is "if it could impair" and "if it does affect their work performance," and is it a safety issue.

PN131

DEPUTY PRESIDENT CLANCY: Yes, but the issue going to the heart of it is is that Mr Guorgi has made the assessment that it wouldn't impair, so therefore he doesn't declare.

PN132

MR G GUORGI: He spoke with his doctor previously about the medication, and in evidence was that he also spoke - he had taken - - -

PN133

DEPUTY PRESIDENT CLANCY: Was there evidence from the doctor?

PN134

MR G GUORGI: There was a letter that Michael had that was submitted on 20 November. The only evidence required on 9 November was the discussion with the doctor.

PN135

DEPUTY PRESIDENT CLANCY: At the hearing was there anything - - -?

PN136

MR G GUORGI: Yes, there was. There was a letter from his doctor dated 20 November that was the doctor stating - I don't remember the exact words, but it was clear evidence that Michael had discussed the impairment. It was there. It's Nurofen Plus. It doesn't impair, and the doctor didn't believe it impaired. The policy doesn't require any written letter from a doctor, unless it's long‑term. Short‑term, you require an individual to be sensible, have a discussion with the doctor, and then notify, if required, if it does impair.

PN137

DEPUTY PRESIDENT ANDERSON: That interpretation, as the Commissioner says in paragraph 84 of her decision, would permit self‑assessment leading to non‑declaration to the employer that a drug is being taken, and the Commissioner says that's a selective and unreasonable interpretation of the policy.

PN138

MR G GUORGI: If the policy required a written letter from the doctor at the time that the employee had that conversation on 9 November, then it would state that. It only states that written evidence is required if it's a long‑term medication. After Michael Guorgi was stood down following taking of the Nurofen, he then approached his doctor and said look, they don't believe me. He then submitted a letter. I have - you know, we didn't submit as evidence the Medicare claim forms which actually show that. We didn't submit that, but they were there. But it's only in the instance where a letter is required for long‑term, so the company can actually work on it.

PN139

DEPUTY PRESIDENT ANDERSON: Yes, but here on appeal, you have to satisfy us that the Commissioner made an error. For permission to appeal to be granted or a new appeal to be upheld, you have to identify error on the part of the Commissioner.

PN140

MR G GUORGI: Yes.

PN141

DEPUTY PRESIDENT ANDERSON: It would appear that there's at least some evidence before the Commissioner from company officers as to how they apply the policy and interpret the policy, and there's the language of the policy in front of the Commissioner, and there's a contrary view that's put to the Commissioner by you or by Mr Guorgi in his evidence - - -

PN142

MR G GUORGI: Yes, thank you. I've - - -

PN143

DEPUTY PRESIDENT ANDERSON: - - - and the Commissioner has come to the conclusion she has. I'm needing to understand what you say is the error. Is the error what the Commissioner says about the words of the policy, or is the error the Commissioner makes about her understanding of the evidence that was before her?

PN144

MR G GUORGI: I believe the evidence from the witnesses supports Michael Guorgi's position on how this should be interpreted, and I believe that a different interpretation was applied than that from the company. Under cross‑examination - I have found the clause, sorry - if you look at page 14, item (k).

PN145

DEPUTY PRESIDENT CLANCY: Sorry, page 14 of - - -?

PN146

MR G GUORGI: I beg your pardon, of the outline of submissions. I refer to - in item (k) I refer to two statements under questioning of both the state safety manager, Ms Sandra Taylor, where she clearly expresses her view that some medications - only those that impair are to be reported, and I'll read this out - in (k), Ms Taylor - and she says:

PN147

And say if it was antibiotics, I wouldn't expect someone to be coming to work and telling their manager immediately that they're on that. It would be if it's a product that's going to be causing drowsiness -

PN148

et cetera -

PN149

impairing their ability to operate.

PN150

Sorry, I missed that.

PN151

DEPUTY PRESIDENT ANDERSON: No, go ahead. Go ahead.

PN152

MR G GUORGI: My apologies. So she's clearly making a differentiation based on her own assessment of the antibiotics. I pointed out during cross‑examination that some antibiotics will have effects that don't - they just don't appear on the drug test. One of the most common ones is sleeplessness, people being tired. So that statement is a personal interpretation of the policy only if you think it impairs, because - and I must say the Commissioner only refers to the Nurofen Plus; doesn't refer to the fact that there was a second medication, which helps to establish that Michael Guorgi interpreted this the same. And to go further, Ms Loughborough, the managing director, in giving her testimony about her medication, the cough syrup that she was taking, she says it was also open to her to interpret if it impacted her role.

PN153

It was the fact that my pharmacist suggested it may cause drowsiness, and it was open to me to interpret whether that would impact what I was doing. As far as I'm concerned, our policy and procedures state that if there is a medication, over the counter or otherwise, that could impact on how I perform, then I've got a responsibility to make sure the organisation is aware, which is exactly what I did.

PN154

After this, and not in this, she says she had a conversation - in giving this example, she contacted another person in the business and they had a discussion about what do you do. She says well I sometimes drive, and so maybe if I'm driving I've got to be aware of that. It was just a discussion with someone else in the business, and also she gave a copy to her executive assistant and said there you go, okay, now you're aware that I may be drowsy from this medication. But it was open to her to interpret, because she had that discussion with the pharmacist, and under the Workplace Health and Safety Act the duty holder in safety has a requirement to act safely. It is up to that individual to determine whether or not they're going to be impaired, even if there are no indicators. It's a requirement, and in fact, the medication declaration form itself - I don't have a copy of it - it requires someone to self‑assess. So once you've filled in the form and had a discussion with the doctor, then if anything else changes you are required - and there is a tick box you have to select - that if you start noticing side effects and something else happening, you must report that. You have to self‑assess, because there's no one else that can tell you anything otherwise. The protection is the discussion with the doctor. That's the protection that the business offers itself. It doesn't ask for evidence of that discussion, but it just says if it's anything that impair.

PN155

Michael Guorgi took Nurofen Plus. I don't know whether you could buy it in supermarkets at the time, but it was a non‑prescription medication. He sits at a desk, answering phones, doing administrative work. The question is really: are his actions enough to justify summary dismissal, because he sits at his desk because he has introduced a huge safety risk from this medication. No one listened to him, and that's the point - you know, the evidence - Booth C in the decision only refers to the clearance after the tests. There is no reference to Michael Guorgi's statement that he said I saw the doctor beforehand, and therefore, if you discount that, the argument can be made that he didn't get any professional advice. In context, Michael Guorgi is a - he's certified, he does hundreds of these tests. There are people who clear saliva tests; even if they're on Endone and serious medications, they go through - and this is all in evidence where they didn't turn up, but he knows. So he regularly tests them, makes sure his doctor knows, makes sure the supervisor knows. The respondent, Transdev, submitted that evidence themselves.

PN156

They also submitted evidence that Michael Guorgi clearly submitted forms in the past, and they put two forms in where he declared Panadeine Forte and Valium on one, and some other cortisone thing, I've forgotten what it was, but there are two instances in the previous 15 months, I think, where he filled this form in, and the Commissioner noted that Michael Guorgi acted appropriately when there was a risk. She made that statement during the hearing. So he's acting properly. He's submitting his forms for himself when he determines there is a risk, when he was taking things that were affecting him. In this case, Nurofen Plus, the company knew he had Nurofen Plus in his body; the company doesn't believe it's a risk. No one thinks it impairs. The point is: you did not report it, even though it's got nothing to do with your work and nothing to do with safety. You just didn't report it.

PN157

DEPUTY PRESIDENT ANDERSON: How does the business meet its duty of care to employees who work alongside Mr Guorgi and to customers or contractors who come onto the business premises in circumstances where it's not informed that one of its employees is taking a drug, simply because either that employee, or that employee in consultation with their doctor, has come to a conclusion that it doesn't constitute an impairment, or may not constitute an impairment?

PN158

MR G GUORGI: I'm not Transdev, but I do know - I run a small business in software; we have clients who run transport business, and we have clients who provide in‑home health care, and there are lots of risks that come with it, and the Workplace Health and Safety Act is an overarching objective. What are the overarching objectives of the drug and alcohol policy? If somebody is going to come in and take cannabis or do something illicit, the company's objectives focus on alcohol and illicit drug use, and irresponsible use, even abuse of medications that, you know, theoretically can't be abused, then if I was the company - I'm only surmising - if I wanted an absolute requirement that everybody tell me everything, I'd put a few things in place. I would require them to submit everything: you tell us everything. I would have then a medical person sitting there assessing the medications as they came in. Michael Guorgi was that person. He is the person who looks at the medications coming in; he's got a list of - his training tells him what medications he has got to look at; the company lists a number of them. If they wanted to have something much more stringent - they may; I haven't seen it in the policies that I've seen - then you would have different classes of employees, like the National Transport Commission has for rail transport, where they have high‑risk people in risk environments, and you have to assume they're always at risk. Then you have people who just come in and do admin work or cleaning work, where the inherent requirements of their job have nothing to do with the medications that they're taking - totally safe.

PN159

DEPUTY PRESIDENT CLANCY: All right. So your case is based on Mr Guorgi's interpretation of that clause of the drug and alcohol policy being correct and the finding of the Commissioner on that point being incorrect?

PN160

MR G GUORGI: I believe Michael's interpretation is a responsible and a reasonable one, and is perfectly aligned with what this policy requires him to do.

PN161

DEPUTY PRESIDENT CLANCY: That's an interpretation. It's either correct or it's not correct.

PN162

MR G GUORGI: It's correct.

PN163

DEPUTY PRESIDENT CLANCY: Yes, all right. How do you say the position taken by the Commissioner causes her to make an error when it came to the decision on remedy?

PN164

MR G GUORGI: I don't believe there was a valid reason. I think there was no valid reason for the dismissal. Not only was it harsh and unjustified, there was just no reason.

PN165

DEPUTY PRESIDENT CLANCY: Let's go to the decision.

PN166

MR G GUORGI: Okay.

PN167

DEPUTY PRESIDENT CLANCY: Get the decision out. Have you got the decision there?

PN168

MR G GUORGI: I have the decision, yes.

PN169

DEPUTY PRESIDENT CLANCY: Now go to page 17.

PN170

MR G GUORGI: Yes.

PN171

DEPUTY PRESIDENT CLANCY: And that's where the Commissioner starts dealing with remedy. Do you see that?

PN172

MR G GUORGI: Yes, I see that.

PN173

DEPUTY PRESIDENT CLANCY: She then addresses the fact that Mr Guorgi seeks reinstatement at paragraph 146 and what he relies on there at 147, and then the position of Transdev at 148.

PN174

MR G GUORGI: Yes.

PN175

DEPUTY PRESIDENT CLANCY: And the suggestion there, there's been a loss of trust and confidence, the position of the appliance coordinator has changed, et cetera, and then at 149:

PN176

I do consider relevant and persuasive Ms Loughborough's view that reinstatement is inappropriate because Mr Guorgi's in a critical safety role -

PN177

A few other matters there, but when it comes down to it, at 152 over the page:

PN178

Ms Loughborough's evidence establishes a rational basis for the allegation of loss of trust and confidence.

PN179

153 goes on - at 154, the Commissioner specifically says:

PN180

I've not considered the difficult relationship between Mr Guorgi and Ms Belmonte, but I take into account the overall relationship of trust and confidence between the managing director and Guorgi -

PN181

And there in 155 is her finding. So you're appealing the decision that reinstatement is not appropriate. How do you say the Commissioner erred in coming to that conclusion?

PN182

MR G GUORGI: I'll try not to repeat what I've put in my outline of submissions. However, I think in the context of when the summary dismissal was made, it needs to be stated that the managing director had before her a report and allegations of tampering of the drug test/saliva test device - that was an allegation that was made. The findings report pointed to an individual - I addressed this - whose character was portrayed in such a terrible way as to wonder why anybody would employ this person. Much of that evidence in the findings report, while not relevant to the specific instance, was to make allegations without substance in this very large findings report.

PN183

To answer your question that reinstatement is inappropriate, if Michael Guorgi was to misread a policy, still act very safely, and his decision causes no concern, causes no imminent risk to anybody, and it's a perfectly reasonable decision, which is what he did after speaking with his doctor, and he was also very unwell - was quite open with the company about that, and then they dismissed him immediately because his interpretation of a policy was that he didn't fill in a form to tell them that there was nothing there, if that was the case presented here to the Commissioner, I think it would have been a much shorter case. Because there is no rationality or reasonable argument to say: we think your decision's safe, you are a safety person, we trust you to act, but don't worry about the medication - we don't care about the physical effect of this drug, that's not our problem; our problem is that you didn't fill in that form to tell us nothing. That's the argument.

PN184

At the time that Ms Loughborough dismissed Michael Guorgi, she had before her a report that alleged tampering with two saliva tests on 14 and 15 November, as well as a character portrayal that we described as nothing less than a - I think in the documents it was a defamatory document, and I'll refer to the Richards' letter in a moment.

PN185

DEPUTY PRESIDENT CLANCY: Yes, but the finding that was made, it's not about the tampering. The finding that's made in terms of reinstatement is at 153 of the decision:

PN186

Transdev management's loss of trust and confidence is not simply on the basis of an instance of non‑compliance with the D & A policy, but with Mr Guorgi's attitude to and understanding and acceptance of the policy that gives rise to concerns of trust and confidence that he would properly implement it.

PN187

MR G GUORGI: When Ms Loughborough dismissed Michael Guorgi, it was on serious misconduct because of an allegation of tampering with a saliva test device. That was the reason he was dismissed, and that was the decision made at the time. So her trust and confidence in context of when that decision was made was based upon the findings report submitted by Ms Stephanee Belmonte to her at the time that she took on face value and in full. She states on numerous occasions that's exactly what she read to make her finding.

PN188

So in the context of this decision by the managing director, if someone was tampering with a drug test device and he was an OHS expert, yes, I'd dismiss him. But that didn't happen, because Ms Taylor - I'm not going to go into the actual details because I deviate - but the basis of the decision‑making by Transdev was so flawed as to allow someone who was not trained to interpret a drug test device, make that decision as to whether the sample was a positive or a negative, and then force that man to undergo the second stage of the policy, which is if you are detected in saliva tests you go to urine tests, and the managing director that at the time Sandra Taylor wasn't qualified, but took that advice and so sent him off to urine tests in error, and this is pointed out in the case by bringing the instructions before the safety manager and said: you read this, this is the result. So at the time she thought Michael Guorgi was many, many things that Ms Belmonte had put in the findings report, but tampering was the serious misconduct, not this.

PN189

That trust and confidence doesn't lead to - if you didn't fill in a form, (indistinct) nothing - lead to standing someone down, a 47‑year‑old occupational health and safety expert and a professional based on his career. You don't stand him down on that basis. You have to have some rational reason. And you don't take all of his keys and access and everything else that they did at the time and send him off on suspension - and standing him down on that interpretation.

PN190

DEPUTY PRESIDENT ANDERSON: The difficulty, Mr Guorgi, I have with that submission is that the Commissioner is not determining her decision on remedy simply by reference to not filling in a form or not. She's determining it by reference to what she describes as Mr Guorgi's attitude to an understanding and acceptance of the policy.

PN191

MR G GUORGI: Yes.

PN192

DEPUTY PRESIDENT ANDERSON: And when that is taken into account with her earlier finding that Mr Guorgi, his role, the role that he's seeking to be reinstated to, is "a critical safety role," to use her words, and that Mr Guorgi is employed as one of the critical components of the company's application of its drug and alcohol policy in the workplace, one of the critical officers, then how could it be said to be an error, having made those series of findings, for the Commissioner to say that reinstatement is not appropriate - given that she's not making that conclusion based on Mr Guorgi being unwilling on one instance to complete a form, but his view, rightly or wrongly, that the way the company wants the policy to be applied is wrong? Because it's his job to apply the policy as an officer of the company.

PN193

MR G GUORGI: I agree that there were four elements to the dismissal, which I have outlined in clause 16 on page 3 of my appeal - with the appeal document, which says:

PN194

Non‑compliance, attitude, understanding, and acceptance of the policy.

PN195

If you were to interpret that in the absence of any of Michael Guorgi's testimony, you would think of a person who is belligerent and trying to defend himself because he's about to lose his work - lose his job. But that was not the evidence. The evidence before the Commissioner was clearly Michael Guorgi had - and it's in the respondent's submission - I only took this over two days right before the trial; I had no chance at all to find this evidence, so everything you see here is in the respondent's evidence, apart from a few things that we submitted - and so his attitude, understanding and acceptance, they all understand Michael knows what he's doing. He's doing his job. He has been doing it for nearly three years - had been doing it for nearly three years. To say that he doesn't accept the policy is to completely ignore his statement where he says he does accept the policy. To say that he doesn't accept that his judgment is, you know, about impairment, he says that's not my judgment to make; I don't do that; the doctor does that.

PN196

If you look at the evidence by the employer where they know he follows people up, he pursues medication declaration forms to be submitted, he submits his own for himself despite his extensive experience - for himself he does it; he follows up people where he knows that there's a safety risk - and it doesn't say in the policy - the policy actually says if someone is cleared you really shouldn't go to the next stage and order urine tests, but he goes a lot further than that, and I'm talking about an example of in the sample with someone on Endone who never ever shows Endone on the tests. He pursues them and has a monthly regular follow‑up with him to run those tests, so he's there. Everything that was presented was that this man, as well as all of the evidence that he stated about wanting to follow up the policy, improve it, get the KPIs up and train more people, he trains these people, the drug testers. There are so many things that Michael Guorgi said that, you know, I have to - you know, I have to look at the decision and think why was his evidence completely ignored, because I do not see any of Michael's testimony influencing or any way it has being applied to the decision in this case. Because what has happened is, and I've described it as an overgenerous reliance on the testimony of the managing director, but in the context of everything that has happened in this case, in Michael's submission there is so much where he's just ignored. He responded. They alleged that he didn't respond to the letter. He knows the policy backwards - I mean, he implements it every single day - and so he understands it, he follows it, and he accepts it, you know, and nothing in his testimony says anything else.

PN197

What does come out and is the only argument is that he had a conversation with his doctor and his doctor said you're not impaired, so he didn't fill in the form. There were 800 pages of allegations, of things he did, and some of them completely baseless and some of them just untrue, but they were made, and we had to go through and look at every single allegation to see why, how could he possibly have been dismissed for taking Nurofen Plus. It just makes no sense. How can you dismiss a person on that basis? And then when you look at everything, his attitude was solid; his acceptance and understanding - it's in the evidence - it was just not considered, if I was to read the decision on its own.

PN198

DEPUTY PRESIDENT ANDERSON: The difficult with that is that that may have been his evidence, but that is his evidence. What the Commission is dealing with here, it has to grapple with the question of what the appropriate remedy is; is whether it is appropriate to make an order for reinstatement, or whether it's appropriate to make a different order, and in coming to that conclusion, the Commissioner has to apply her mind objectively to the evidence as a whole, not just to what Mr Guorgi says is his proper application of the policy. Because an employee who says, or who is convinced that they're applying the policy in a correct way, but where the employer is saying that is not the case, immediately leaves a gulf between their position and the employer's position, and where there's a gulf between those two, then the Commission here has had to determine whether or not it's appropriate to re‑employ somebody whose job is to actually employ the policy on behalf of the company.

PN199

MR G GUORGI: I heard Deputy President use the words there are two - pretty much there are two sides to this; what are the reasons. And when you look at the case made against Michael Guorgi, and you look at the evidence that was submitted in support of the claim for dismissal, there is so much that is so wrong about this, and I state this in the appeal, that I have a fundamental problem with one of the witnesses removing an entire section of the findings report prior to submitting that report to the Commission. That report by Stephanee Belmonte had an Appendix M, which is a personnel file of other things in Michael's file. No one knows what's in there. It was in there when it was submitted to the managing director as the document upon which the managing director made her assessment. That was in there, Appendix M. I only discovered afterwards, as I'm trying to find to do my final submission, as I'm reading it I said where's Appendix M? Where is it? It's gone. So I wrote to the Commission and said there's a missing document here; there are elements of this document that are missing. I then wrote seeking permission to obtain that from the respondent, and that came through. The respondent then came back confirming that Stephanee Belmonte said that the contents of that appendix are in other parts of the document, which means it was there and now it's gone.

PN200

I have a problem with that, and I have a real problem with the way they've portrayed Michael in this whole case. In this whole case, the background to this - and it's very lengthy - the background to this is that Michael Guorgi, before this event, or actually if you add the four weeks, had been stood down for nearly 16 weeks - 15.5 weeks in that previous year. That evidence was put in there, the allegation after allegation made in the findings report in which Ms Belmonte was involved. The Richards' letter that is referred to here, and I think our intention for submitting that reference to the Richards' letter, I think it has been not quite what we say. The Richards' letter was a document that was submitted to both the managing director, Tilly Loughborough, and to Stephanee Belmonte on 20 November before the investigation has really started, right after he was stood down the following week. That letter came in because it was a summary of an internal investigation that Transdev did independent of the Brisbane office. They ran it out of the Melbourne office from a person who came up and independently assessed allegations that Michael had against a former manager. It was an extraordinary case where - - -

PN201

DEPUTY PRESIDENT CLANCY: How is this relevant?

PN202

MR G GUORGI: It's relevant because the Richards' letter, up until the point of November 20 - I'm talking about the character that was presented to the Commission and to the managing director - it's relevant because on 20 November it is acknowledged by the respondent that so many allegations - I'm talking about allegations with no substance, of sexual harassment - Michael argued that, you know, he was alleged to have falsified documents - he was destroyed as a character in front of the Commission, in front of the managing director, who has only known him for six months. That is all there in the evidence. And so that Richards' letter on 20 November should have dismissed, and it did dismiss any of the previous investigations, and the words were "as procedurally compromised and not independent." Those investigations were conducted by Stephanee Belmonte. After the 20th - - -

PN203

DEPUTY PRESIDENT CLANCY: But we're going here to the finding on reinstatement, and the evidence that Ms Loughborough gave on the question of reinstatement.

PN204

MR G GUORGI: Yes, and to the point of trust and confidence is what I was talking to.

PN205

DEPUTY PRESIDENT CLANCY: Yes, and she addressed that specifically in her witness statement.

PN206

MR G GUORGI: Ms Loughborough?

PN207

DEPUTY PRESIDENT CLANCY: Yes.

PN208

MR G GUORGI: Yes, to trust and confidence.

PN209

DEPUTY PRESIDENT CLANCY: Yes.

PN210

MR G GUORGI: Yes.

PN211

DEPUTY PRESIDENT CLANCY: So how do you say there's an error? It's specifically put in the decision:

PN212

I have not considered the difficult relationship between Mr Guorgi and Ms Belmonte.

PN213

MR G GUORGI: Yes.

PN214

DEPUTY PRESIDENT CLANCY: So she didn't take that into account. She took into account - it's in the decision - - -

PN215

MR G GUORGI: Yes, trust and confidence.

PN216

DEPUTY PRESIDENT CLANCY: - - - "the overall relationship of trust and confidence between the managing director and Mr Guorgi."

PN217

MR G GUORGI: On the basis of distilling everything down, Deputy President, of all of this - - -

PN218

DEPUTY PRESIDENT CLANCY: She gave evidence in her witness statement about reinstatement; Ms Loughborough did.

PN219

MR G GUORGI: Yes. That's correct, and - - -

PN220

DEPUTY PRESIDENT CLANCY: So what other evidence did she give on reinstatement - Ms Loughborough?

PN221

MR G GUORGI: Well it's trust and confidence. It was trust and confidence. It was in a critical safety role. It was if he did not know what he had done wrong, how could I trust him.

PN222

DEPUTY PRESIDENT CLANCY: Correct.

PN223

MR G GUORGI: Yes. She couldn't even trust him to drive a bus. But that trust and confidence was based on what? On just that he didn't fill in a form? That, you know - that's not reasonable.

PN224

DEPUTY PRESIDENT CLANCY: Well that's what her evidence was.

PN225

MR G GUORGI: But that's not reasonable, to say that I'm going to dismiss you.

PN226

DEPUTY PRESIDENT CLANCY: So your submission is that her evidence on trust and confidence didn't have a basis for the Commissioner to conclude?

PN227

MR G GUORGI: No, it had no - - -

PN228

DEPUTY PRESIDENT CLANCY: All right, I understand your submission.

PN229

MR G GUORGI: Yes, sorry.

PN230

DEPUTY PRESIDENT CLANCY: I'm just not sure where else you were taking us. Now go back to the drug policy.

PN231

MR G GUORGI: Yes.

PN232

DEPUTY PRESIDENT CLANCY: Did Mr Guorgi record a non‑negative test result?

PN233

MR G GUORGI: There were two - okay, I do risk repeating, but I will a little about what happened on the 14th and the 15th.

PN234

DEPUTY PRESIDENT CLANCY: He did, didn't he? On the 14th he did - he recorded a non‑negative test result, didn't he?

PN235

MR G GUORGI: One of our arguments - the answer is on the test device that he ran on that morning of the 14th at 8.30 with himself and with Ms Taylor in that room, self‑testing himself - - -

PN236

DEPUTY PRESIDENT CLANCY: That's the second one.

PN237

MR G GUORGI: No, that's the first one, 14 November - 14 November was the first one; the 15th was the second, and then the final urine test, Deputy President, was on the 17th, on the Friday.

PN238

DEPUTY PRESIDENT CLANCY: Did he record a non-negative test result?

PN239

MR G GUORGI: He was demonstrating it, and yes, he came up with a non‑negative result - - -

PN240

DEPUTY PRESIDENT CLANCY: Right, and what was - - -

PN241

MR G GUORGI: - - - for codeine on that Tuesday.

PN242

DEPUTY PRESIDENT CLANCY: For codeine, right?

PN243

MR G GUORGI: Well yes, Nurofen Plus, yes.

PN244

DEPUTY PRESIDENT CLANCY: For Nurofen Plus, right?

PN245

MR G GUORGI: Yes.

PN246

DEPUTY PRESIDENT CLANCY: So your view of the drug and alcohol policy is if you're taking a prescription drug or an over the counter drug that isn't going to impair your work performance, you don't have to declare it? That's Mr Guorgi's interpretation of the policy - if you take advice and it doesn't impair you, right?

PN247

MR G GUORGI: If you take advice, yes.

PN248

DEPUTY PRESIDENT CLANCY: But there's a drug and alcohol policy that enables random testing?

PN249

MR G GUORGI: Yes.

PN250

DEPUTY PRESIDENT CLANCY: And if you're on a prescription drug or an over the counter drug in the scenario that you've presented, you're going to record a non‑negative result, aren't you, if you're randomly drug‑tested?

PN251

MR G GUORGI: In this case, yes.

PN252

DEPUTY PRESIDENT CLANCY: Yes.

PN253

MR G GUORGI: (Indistinct) came up, correct.

PN254

DEPUTY PRESIDENT CLANCY: So isn't that why the drug and alcohol policy at clause 5.3 requires you to report any of that medication that you might be taking?

PN255

MR G GUORGI: There are two - - -

PN256

DEPUTY PRESIDENT CLANCY: Otherwise you are going to be walking into a scenario where you're randomly - and then after the event, you're going to say oh hang on, I was on Nurofen Plus.

PN257

MR G GUORGI: There are two elements of the donor consent form and the drug and alcohol policy. Prior to taking a drug test, you sign a form, a donor consent form, that says is anything going to affect the outcome of this test, and you declare - you declare Nurofen Plus, antibiotics, whatever it is; you say upfront I'm taking this and I'm taking that. After that, okay, well you're taking Nurofen Plus, and codeine has come up, then you go to a urine test to determine if what you are saying and the medications that you are presented, are you telling the truth - are you telling the truth, are you being responsible. That is in the policy - yes, I am being responsible. Then the third party, an independent person, would come in - the policy says after you - this is Transdev's policy - if there is a detected drug, then without exception you are stood down and a third party comes in to do a urine test, which is more accurate and determines exactly what it is. This whole time, Michael said he was taking Nurofen; codeine appeared - he was completely open about it; the urine tests on the Friday showed that he was taking Nurofen responsibly. There was no problem. And so at that point, the company then needs to make a judgment: well it's safe, he's being responsible, he's okay, let's move on. At that point, Michael's testimony was that if people are responsible and if they are taking something they have a doctor's certificate - it's very specific. It's what the drug and alcohol policy talks about.

PN258

DEPUTY PRESIDENT ANDERSON: That Mr Guorgi's application of the policy. That's how Mr Guorgi believes the policy should be applied. That was his evidence. That's what he believes the policy says. That's how he believes the policy should be applied. The difficulty is, that is not the company's position on how the policy should be applied, and more particularly, it's not the conclusion the Commissioner has reached. In those circumstances, where is the error in the Commissioner saying I don't think it's appropriate to put Mr Guorgi back into the job of implementing the company's policy, because he hasn't established to my satisfaction that he is capable of implementing and applying that policy in the way in which the company wants.

PN259

MR G GUORGI: The words of the policy then need to be deferred to in their entirety, and section 5.3 is very clear - it is very clear - you go and see your doctor if you're taking medication. He did that. You speak with your doctor, you get your advice - done that, I sit at a desk; I'm fine. Okay, and so you don't declare if your conversation with a doctor says you don't impair. If it doesn't impair you, it's not relevant to your work. The policy says then you - well the policy's words actually are: "This information" - - -

PN260

DEPUTY PRESIDENT CLANCY: We know what clause 5.3 is. I'm coming to the workability of the policy is that you seem to say that the only time you need to declare an OTC or prescribed medication is when you're going in to do a random drug test.

PN261

MR G GUORGI: No, I am not saying that at all, and Michael Guorgi doesn't say that. You declare if the conversation with your doctor says there's an impairment.

PN262

DEPUTY PRESIDENT CLANCY: No, you just said before if you were subject to random testing and you're on some medication, which you hadn't previously filled in the medical form because you don't have to, on your proposition.

PN263

MR G GUORGI: No, sorry, I didn't actually finish, Deputy President, what I was saying. On the donor consent form, there is a question that is asked: is there anything that will determine the outcome of this test, and you say I'm this and this.

PN264

DEPUTY PRESIDENT CLANCY: Yes, but you're saying you only have to do that if you select - the only time you ever have to declare that medication is if you're going to be in a random drug test.

PN265

MR G GUORGI: No, I didn't say that. I'm sorry, Deputy President, there are two documents - - -

PN266

DEPUTY PRESIDENT CLANCY: Well that's the proposition you're putting.

PN267

MR G GUORGI: No, there are two documents, I beg your pardon. One document is the medication declaration form that you make in advance after you've seen your doctor before any random test. It's just your responsibility and duty.

PN268

DEPUTY PRESIDENT CLANCY: Yes, I understand that, but you're saying if you've formed the view with your doctor that you don't have to fill in that medical declaration form - - -

PN269

MR G GUORGI: That there's - no, not that you don't have to fill it in - there's nothing that will impair you in your job.

PN270

DEPUTY PRESIDENT CLANCY: Yes, so you don't fill in the form?

PN271

MR G GUORGI: Yes.

PN272

DEPUTY PRESIDENT CLANCY: You keep presenting for work, you're taking your Nurofen?

PN273

MR G GUORGI: Yes.

PN274

DEPUTY PRESIDENT CLANCY: And then one day someone comes along and says, right, random drug test?

PN275

MR G GUORGI: Yes.

PN276

DEPUTY PRESIDENT CLANCY: And you say only at that point is it relevant for the company to know you're on that medication, and that's how the drug and alcohol positive works?

PN277

MR G GUORGI: Well if it doesn't impair you and it's not a safety issue, then you don't report it.

PN278

DEPUTY PRESIDENT CLANCY: So that's your proposition and Mr Guorgi's proposition on how this drug and alcohol policy works, and the Commissioner was wrong in her interpretation?

PN279

MR G GUORGI: If it was a different interpretation that regardless of the outcome, regardless of the event - - -

PN280

DEPUTY PRESIDENT CLANCY: You don't see anything illogical in that position, that you only declare if you're about to go into a drug test scenario, knowing that you're likely to produce a non‑negative result? That's how this drug testing policy is supposed to work on your - - -?

PN281

MR G GUORGI: No. The drug testing policy - - -

PN282

DEPUTY PRESIDENT CLANCY: Or the drug and alcohol policy.

PN283

MR G GUORGI: - - - and the procedure - sorry, the procedure for conducting a test are a series of steps.

PN284

DEPUTY PRESIDENT CLANCY: I understand that. I'm reading through them as we speak.

PN285

MR G GUORGI: Yes.

PN286

DEPUTY PRESIDENT CLANCY: But that's how you say this drug and alcohol policy at the company works?

PN287

MR G GUORGI: Well the alternative interpretation, Deputy President, is the one that you have to go to, because that is not what the company says. The company says in this policy: you must declare if it impairs you, and you have a conversation with your doctor.

PN288

DEPUTY PRESIDENT CLANCY: I understand that. I'm getting to the process of testing.

PN289

MR G GUORGI: But I am testing - if I go into a test - so in other words, regardless, I then declare it, but if I am standing in front of a drug tester because I've just been pulled up as I walk in to my - - -

PN290

DEPUTY PRESIDENT CLANCY: Yes, but then you say: all right, well, look, I was under medical advice and it's all okay, and you're having that discussion having returned a positive drug test.

PN291

MR G GUORGI: You have that discussion that yes, I am taking A‑B‑C, whatever the medication is at the time of testing, but you don't declare it beforehand, Deputy President. It's at the point of testing.

PN292

DEPUTY PRESIDENT CLANCY: All right. Is there anything further you want to say, because I want to hear from Mr Bower now?

PN293

MR G GUORGI: Yes, I do actually, because I just want to know at what point - as I'm Googling a lot of this information and this particular case, and the case against Michael Guorgi, and we are talking trust and confidence; there's not a rule, there's not an interpretation here. You cannot base trust and confidence because of a decision, a reasonable, lawful interpretation of a policy. If I am, as you say, Deputy President - - -

PN294

DEPUTY PRESIDENT CLANCY: I understand the argument. You've been making it, and that is this: Your interpretation of the policy is correct and the company is wrong. Because the company is wrong, there's no sound and rational basis to conclude that there's a loss of trust and confidence.

PN295

MR G GUORGI: I'm saying that there is an equivocal interpretation here that is being portrayed in this particular case, in Michael Guorgi's dismissal, and Michael's interpretation of that is exactly the same as the managing director's and the state safety manager.

PN296

DEPUTY PRESIDENT CLANCY: Yes, I understand that. So you're saying there's no basis to form the view, because of the way the policy should be interpreted and operate, and you say because of the evidence of other company officers, that because of those things there's no basis for the company to hold the view, submit to the Commissioner and the Commissioner to accept that there has been a loss of trust and confidence here.

PN297

MR G GUORGI: If there's an equivocal interpretation of this policy, and the Commissioner did find that the policy was badly worded - and she says that, that other things should be put into that policy to make it clearer - - -

PN298

DEPUTY PRESIDENT CLANCY: Stop. Could you just ask me whether you agree with that proposition on how you put your case?

PN299

MR G GUORGI: I agree that the company can interpret and implement a policy in any way they see fit if that is what they want to be safe - - -

PN300

DEPUTY PRESIDENT CLANCY: Yes, but you're saying it's wrong. Your case is it's wrong and the Commissioner interpreted the clause 5.3 in an incorrect manner. You're saying that, aren't you?

PN301

MR G GUORGI: I'm saying the policy is perfectly reasonable and Michael's interpretation was correct.

PN302

DEPUTY PRESIDENT CLANCY: Ergo, therefore, the Commissioner was incorrect in saying - - -

PN303

MR G GUORGI: That there is another interpretation.

PN304

DEPUTY PRESIDENT CLANCY: Yes.

PN305

MR G GUORGI: Yes, that there is another interpretation, and clearly that is the case.

PN306

DEPUTY PRESIDENT CLANCY: We accept that. We hear what you say on that. All right?

PN307

MR G GUORGI: Yes.

PN308

DEPUTY PRESIDENT CLANCY: Then we turn to the impact that that might have had on the decision the Commissioner made on remedy.

PN309

MR G GUORGI: Yes.

PN310

DEPUTY PRESIDENT CLANCY: Are you following?

PN311

MR G GUORGI: Yes.

PN312

DEPUTY PRESIDENT CLANCY: All right. Then the Commissioner - and I've gone through the sections in the decision where the Commissioner deals with it - and she has made the finding at 1.52 that her evidence establishes a rational basis for the allegation of loss of trust and confidence, and in 1.53:

PN313

Transdev management's loss of trust and confidence is not simply on the basis of an instance of non‑compliance, but with Mr Guorgi's attitude to and understanding of and acceptance of the policy that gives rise to the concerns of trust and confidence that he would properly -

PN314

It goes back to the same point, doesn't it? It goes back to the same point that he holds a different view as to how clause 5.3 should be interpreted to that of the company, and then the company says because he holds that different view we have lost trust and confidence in him; therefore reinstatement is inappropriate, and the Commissioner has accepted that. Do you follow?

PN315

MR G GUORGI: I follow that if you interpret a policy and an employee is interpreting that - what I'm hearing you saying, sir, is that if you have a policy and an employee interprets that policy differently to how you have written it, to how you expect it to be interpreted, then that loss of trust and confidence may be valid, unless it is a systemic problem in the way that you either convey that to the employees or in the way that you actually write your policies. If the company needed every single medication to make their own judgment - - -

PN316

DEPUTY PRESIDENT CLANCY: I understand what you're saying. You keep going back to - - -

PN317

MR G GUORGI: But I can't understand the argument. I don't understand if - - -

PN318

DEPUTY PRESIDENT CLANCY: All right, but I understand the submission that you're making.

PN319

MR G GUORGI: Yes.

PN320

DEPUTY PRESIDENT CLANCY: All right?

PN321

MR G GUORGI: Yes.

PN322

DEPUTY PRESIDENT CLANCY: You don't need to say it any more.

PN323

MR G GUORGI: Okay.

PN324

COMMISSIONER SPENCER: Mr Guorgi, your brother is the critical compliance officer, so in those circumstances, the steps in the policy - and he's to be, you know, the leading light in the compliance for that policy - the Commissioner finds that he doesn't provide the disclosure, and that would have been an easy step for him to make: I've been to my doctor, I'm on Nurofen Plus; here's the disclosure in accordance with the way that the policy is written there; it doesn't affect my - the doctor said it doesn't affect my work performance, but here's the disclosure. He's the compliance officer. Why was that such a difficulty?

PN325

MR G GUORGI: It happened within two days, but the question is why it was a difficulty. Because he interpreted correctly that it doesn't affect him. It's an over the counter medication.

PN326

COMMISSIONER SPENCER: Your case is, as I understand, that the dismissal is infected by the prior conduct between Ms Belmonte and the applicant and all of those allegations, and the Commissioner makes reference to Mr Richards' letter and says I don't agree with the way that it can be interpreted in the applicant's favour, but I acknowledge that there has been a difficult environment. In that difficult environment, why wouldn't the critical compliance officer say: I'm going to declare these things, that is, make it clear and do those things so the employer has absolute trust - and when he doesn't do that, the Commissioner also takes into account that there's no contrition here in terms of having trust in the continued discharge of his duties.

PN327

MR G GUORGI: No contrition leads to a different question on not receiving a response to his response to the show cause letter. But to disclose a medication like Nurofen Plus, classified as it was at the time, Commissioner, is the same as disclosing other similar medications that may or may not have an effect on you when you're not aware of it, and we're talking about the same class of drug that could be in cough syrups, could be vitamins, could be Aspirin - it could be anything, a whole range of drugs. At what point do you draw the line?

PN328

COMMISSIONER SPENCER: But isn't it - my understanding of the evidence was, the non‑negative result, is that the level is greater than the Australian Standard in the blood stream of that class of drug, the non‑negative result.

PN329

MR G GUORGI: Can I just state that all the evidence with that interpretation was made by non‑trained drug testers. There are different levels. Saliva test devices are rated, different medications are rated, to detect different types of drugs at different levels, at cut‑off levels that indicate only - and they are only a suggestion - that something else should take place. It's a safety measure. Some companies choose urine tests; some companies choose saliva tests. In this case, Transdev has selected a saliva test device, and their policy says once you have detected over the cut‑off detected by the saliva test device that then you go to secondary urine test to prove or show what it is that you have. The urine test then prove that. If they prove that you're taking something safe, that doesn't mean a company can say that you've lost complete trust and confidence. It is reasonable.

PN330

Anybody can take a cough syrup, anyone can take even something that doesn't appear on a saliva test device that has a very severe effect on you. I pointed this out during the hearing and during cross-examination to Sandra Taylor and said there were lots of other medications that can have an effect that will not be detected by a saliva test device and are not indicated but they do and there are - - -

PN331

COMMISSIONER SPENCER: Isn't that why there's a disclosure, so the employer is aware and they can make the appropriate responses?

PN332

MR G GUORGI: But I - - -

PN333

COMMISSIONER SPENCER: That's why they want the disclosure.

PN334

MR G GUORGI: The disclosure then has to extend to the 86,000 medications that are on the Therapeutic Goods Administration list because if you're not going to draw a sensible line between what you believe is going to impair and what you know isn't going to impair, at what point do you draw the line? You then have to have an absolute policy but the company has to - that you would require every employee to declare every single thing that they take because something may just turn up, it may turn up regardless of how safe it is or unsafe it is.

PN335

It is the doctor's discussion with the employee that requires the employee to determine the impairment. That's what the managing director said about her cough syrup. It's the same judgment the safety manager said about the antibiotics, so why would you declare that you've taken vitamin supplements or herbal remedies or creams or sunburn cream? Anything that is classified by TGA in those huge number of lists - - -

PN336

COMMISSIONER SPENCER: Well he was the compliance officer.

PN337

MR G GUORGI: But how does that - - -

PN338

COMMISSIONER SPENCER: He was setting an example.

PN339

MR G GUORGI: Yes, but a compliance officer runs a common sense approach - - -

PN340

COMMISSIONER SPENCER: No. No, no, he runs it in accordance with the policy of the employer.

PN341

MR G GUORGI: If he - - -

PN342

COMMISSIONER SPENCER: Anyway.

PN343

MR G GUORGI: If he breached the policy and it was clear regardless of what you take you must declare, it's a very simple policy to write that way but it's not written that way. It is written so that it requires the condition that you speak with a doctor, you have a discussion about your impairment and then you actually report it if it does impair, if it affects your work or if it's a safety issue.

PN344

No one here is arguing that - the employer and the employee, no one is arguing that this is safe - unsafe, I beg your pardon. No one is saying there's a risk. There is no risk. There is a zero impact of his decision. The only thing is that he didn't report this medication. That's it. There is nothing else and so how would you do that?

PN345

If you then required everyone - it's very clear, you wouldn't need to have a discussion with the doctor, you'd just declare everything and then the company would have their own doctors and assessors to sit there and assess that effect on your work.

PN346

DEPUTY PRESIDENT ANDERSON: Mr Guorgi, I'm not sure that it's fair to characterise the Commissioner's decision, at least, as simply founded on the basis you just said because in paragraph 130 of her decision, Commissioner says:

PN347

Mr Guorgi's conduct was not wilful or deliberate behaviour inconsistent with the continuation of the employment contract. His conduct was founded on an incorrect interpretation of a reasonable policy and despite the opportunity to demonstrate understanding, he continued to question the policy.

PN348

It would appear that the Commissioner is placing weight in making a decision on remedy as to the stance Mr Guorgi, even at the hearing of the matter months after the testing in the workplace, the stance he still takes about the policy. Because the Commissioner finds that even though this is not serious and wilful misconduct on the testing days in question, he has continued to hold the view that his interpretation of the policy is correct and the company's is not, that the policy, as interpreted by the company, is not reasonable and not reasonable interpretation and he has done that despite having opportunities to demonstrate acceptance and understanding of the policy.

PN349

The difficulty with all of that is that you have to keep coming back to whether or not the Commissioner is right in making the conclusion that she's made about the interpretation and application of the policy and she's made findings on that and having made findings on that, why doesn't it flow that the Commissioner was entitled to then conclude that there, objectively speaking at least, is grounds to believe there's a loss of trust and confidence?

PN350

MR G GUORGI: That 130, not wilful, not deliberate, it was a safe decision, and then it's the despite the opportunity to demonstrate understanding. Demonstrating understanding is standing in front of the - at the hearing and saying everything you do for that policy and the evidence that the respondent puts in is exactly the same. He's been doing it for a number of years. He knows what it is, so the opportunity to demonstrate the understanding to Ms Loughborough, he continued to question the policy.

PN351

One of the issues I have is that there is no evidence and there was no willing attempt to answer Michael Guorgi's questions in his response to the show cause letter. There's a statement that the managing director didn't consider that it answered the questions. That's the statement. That didn't address the core issues but he asked in one of his points "Can you interpret the policy and tell me how I breached it?", I'm paraphrasing.

PN352

There is no answer to that. He's sitting there "What have I done wrong? How have I interpreted this policy incorrectly? I do this every day. I train people, I run the policy". He writes drafts of this policy.

PN353

DEPUTY PRESIDENT ANDERSON: The Commissioner finds there was an incorrect interpretation of a reasonable policy.

PN354

MR G GUORGI: That incorrect interpretation, and again, I'm not going to - at risk of repeating myself again, but that incorrect interpretation, it is a reasonable interpretation of the policy as is written. He's done everything in that policy. He's interpreted it and he's acted on it and it's a safe outcome, there's no risk. The opportunity to demonstrate understanding, there is no answer to Michael when he asks "How have I interpreted this policy incorrectly?"

PN355

There are numerous allegations against him. We don't understand, and, again, in the context of the tampering allegation but where is it? It's not there and how have they pulled him aside and said "This is how you should have interpreted this policy" because there are others in the company who also misinterpreted the policy. In fact, most employees can't even access this medication declaration form.

PN356

DEPUTY PRESIDENT ANDERSON: I understand what you're saying but the evidence was he held that view at the time of the testing, the random testing occurred. He held that view about how the policy should be interpreted and here we are many, many months later, notwithstanding the Commissioner's decision, here you are standing before an appeal bench still saying he holds that view and that that view is correct. That is what you're saying to us.

PN357

MR G GUORGI: I am saying that the interpretation, I'm saying that the judgment that Michael interpreted the policy differently to the managing director and the state safety manager is it's consistent. It is consistent. If it's open to the managing director to determine if something impairs her after having a discussion with the pharmacist, it is open to Michael Guorgi.

PN358

If it's open to the safety manager to determine if one medication is okay and another one isn't, then it's also open to Michael. How is that different? They may say that you have to declare everything regardless, which his what is being said, but they don't say that. They don't say it. That's the only way you can get around it. There is no way of addressing this.

PN359

The medication declaration forms in the training pack that Michael delivers during the induction, he delivered the induction training, there is nothing in there about these forms.

PN360

DEPUTY PRESIDENT ANDERSON: You say because the company doesn't require everything to be declared, that is evidence that his interpretation of the policy is correct?

PN361

MR G GUORGI: The company wants things that impairs - - -

PN362

DEPUTY PRESIDENT ANDERSON: Is that what you say?

PN363

MR G GUORGI: Sorry, say that again?

PN364

DEPUTY PRESIDENT ANDERSON: What I want to understand whether the proposition I put to you is what you say, that because the company does not require everything that an individual takes to be declared, therefore Mr Guorgi's interpretation of the policy is correct.

PN365

MR G GUORGI: If that is what the company wants, then they should remove all decision making from the employee. You are making no decisions about your interpretation of this policy. That is what they ask but that's not what the company is saying here, sir.

PN366

DEPUTY PRESIDENT ANDERSON: But Mr Guorgi's the compliance officer for the very policy that he is calling into question.

PN367

MR G GUORGI: He is a compliance officer and drug testing is one of 25 other drug testers in that organisation. There are more of people who do that job as well as doing other jobs.

PN368

DEPUTY PRESIDENT ANDERSON: How is it unreasonable or erroneous for the Commissioner to not reinstate the compliance officer or drug policy when that compliance officer is still many months later saying that the policy is not being correctly understood or this expectations for its application are not reasonable expectations by the business?

PN369

MR G GUORGI: Deputy President, where is the description to Michael Guorgi in their response that "You misinterpreted the policy in this way. It is because you should have declared absolutely everything at all times"? That is not what is said and there is no response. There's one statement from Ms Loughborough that says "No, I just didn't consider that it responded to the allegations" to his response to the show cause letter.

PN370

He addressed a lot of them. He's saying "What have I done? How is my actions interpreted?" Where's the discussion? Where is it? If he's it done it wrong, tell me how it's done because there could be a problem that is systemic. If there is an issue with training or if there is issue with the forms or an issue with the drug policy, they have to determine it and if their compliance officer, who has been doing the job for two and a half-three years at the time, and he gets it wrong, that's not trust and confidence.

PN371

DEPUTY PRESIDENT ANDERSON: You say that the company's expressed an opinion that he's interpreted and applied the policy incorrectly but there's no evidence that he did?

PN372

MR G GUORGI: No evidence that he didn't?

PN373

DEPUTY PRESIDENT ANDERSON: That he did apply the policy incorrectly.

PN374

MR G GUORGI: He applied - - -

PN375

DEPUTY PRESIDENT ANDERSON: The company officers expressed that opinion but they had no evidence to support that opinion, is that what you say?

PN376

MR G GUORGI: Their evidence of - - -

PN377

DEPUTY PRESIDENT ANDERSON: I'm wanting to understand your case. I'm wanting to understand why you say Booth C was wrong in not reinstating Mr Guorgi as the compliance officer.

PN378

MR G GUORGI: In the interpretation of that particular clause, Booth C does not refer to the second part of the sentence which is "If there's any impairment that is - as to the effects of your work performance". That's not mentioned. That part of the sentence is cut off, which implies exactly what I'm hearing today, that you have to declare everything.

PN379

DEPUTY PRESIDENT CLANCY: Mr Guorgi, could you go to tab 14.

PN380

MR G GUORGI: Yes. This is the Sandra Ann Taylor's submission?

PN381

DEPUTY PRESIDENT CLANCY: Correct, yes.

PN382

MR G GUORGI: Tab 14, yes.

PN383

DEPUTY PRESIDENT CLANCY: Thank you, and could you go to page 85 of that.

PN384

MR G GUORGI: Yes, her ST17?

PN385

DEPUTY PRESIDENT CLANCY: Yes, and then you can see that. That's the medical declaration form, is it?

PN386

MR G GUORGI: Correct.

PN387

DEPUTY PRESIDENT CLANCY: Right. Let's have a look at what that says, "Purpose. The use of prescription or over the counter medications may impair a person's ability to safely perform their role. Workers taking prescribed drugs or OTC medications are to obtain advice from their doctor as to the effects of the drug that may be relevant to the person's work performance. This information must be conveyed to the safety quality and risk manager prior to commencing work as soon as reasonably practicable once the taking of medication commences", right. You say that's consistent with clause 5.3?

PN388

MR G GUORGI: Yes, I'd say that's - I think it's slightly different wording but the intent is the same.

PN389

DEPUTY PRESIDENT CLANCY: Let's look at the declaration by employee and the boxes you're to tick, "My doctor has been informed of the nature of my normal duties". Second, "My doctor has been informed of my roster arrangements and work hours". Third, "My doctor has confirmed that taking this medication will not adversely affect my ability to carry out my normal duties without restriction".

PN390

MR G GUORGI: Yes.

PN391

DEPUTY PRESIDENT CLANCY: Well you're saying you don't have to declare it if the answer to that question is yes.

PN392

MR G GUORGI: In the top part of that section, Deputy President, there are the details, name, and part of them, one of them, is possible side effects, okay, which comes from the doctor and medication box, something that they say.

PN393

DEPUTY PRESIDENT CLANCY: Sure.

PN394

MR G GUORGI: In this case, Michael had taken Valium.

PN395

DEPUTY PRESIDENT CLANCY: Yes, but why didn't he complete the form if the third question, or the third thing to tick, is "My doctor has confirmed that taking this medication will not adversely affect my ability to carry out my normal duties without restrictions"?

PN396

MR G GUORGI: Because he's had a description and a discussion with his doctor and his doctor - - -

PN397

DEPUTY PRESIDENT CLANCY: He can tick that box then, can't he?

PN398

MR G GUORGI: But what does he write for the possible side effects of the medication that has no effect on his job? What does he write in that section? Nothing.

PN399

DEPUTY PRESIDENT CLANCY: Well that's possible side effects of medication which is based on the advice he gets from his doctor, "My doctor has confirmed that taking this medication will not adversely affect my ability to carry out my normal duties without restriction".

PN400

MR G GUORGI: That's correct. If you declare something ‑ ‑ ‑

PN401

DEPUTY PRESIDENT CLANCY: The very thing that you say you don't have to declare this for is taken into account in this form.

PN402

MR G GUORGI: You're submitting a form that says what are the possible side effects? Nil. That's what you're submitting. If the possible side effects are nil and you've spoken to your doctor - - -

PN403

DEPUTY PRESIDENT CLANCY: But you're reading this selectively now because the third thing that you tick or cross is "My doctor has confirmed that taking this medication will not adversely affect my ability to carry out my normal duties without restriction" and that is what your brother's evidence and your brother's case is based on, isn't it?

PN404

MR G GUORGI: With respect, Deputy President, if the possible side effects are nil and I've had a discussion ‑ ‑ ‑

PN405

DEPUTY PRESIDENT CLANCY: Could you perhaps start listening to the question I'm asking and answering the question.

PN406

MR G GUORGI: Yes. The answer is yes. If you fill in this form you are required to - if you're filling in this form and taking medication, then you are required - well it basically says you've confirmed you've spoken with your doctor, okay - - -

PN407

DEPUTY PRESIDENT CLANCY: And your doctor's given you advice that "It will not adversely affect my ability to carry out my normal duties without restriction" and that's what happened in this case, you say. Your brother saw his doctor and his doctor said "This medication, Nurofen Plus, will not adversely affect you at work or your ability to carry out your duties". That's what his doctor said to him.

PN408

MR G GUORGI: That's what his doctor said to him, yes.

PN409

DEPUTY PRESIDENT CLANCY: So why couldn't he fill out this form?

PN410

MR G GUORGI: Because the clause doesn't require him, if his doctor says that it doesn't impair and he doesn't believe it impairs, it doesn't require him to fill in this form.

PN411

DEPUTY PRESIDENT CLANCY: Thank you. All right, is there anything further you want to say? I think I understand your arguments.

PN412

MR G GUORGI: Yes, I do, Deputy President. I would like to know, in this particular case there has been a destruction of a man's character and his career. I know that the policy or the Fair Work Act doesn't allow for consideration of people's subsequent hardships, I understand that. A decision's made and it's hard.

PN413

In this particular case, the effect has been fairly devastating and I think if that is one side of the equation, there has to be on the other side of the equation an unwavering reasonability and honesty that comes with the allegations that are levelled against one man. Of all the allegations made against Michael to determine this trust and confidence and underscore that, and an employer, or a witness, submits evidence that isn't true and correct as stated under oath, what else was in that document that forced or that caused the managing director to think that way?

PN414

Why can someone make allegations without substance? Of falsification and sexual harassment and fraud, leaving site early, tampering with the test device - - -

PN415

DEPUTY PRESIDENT CLANCY: Mr Guorgi, you've got to take us to the evidence upon which Booth C has made the finding that reinstatement's not appropriate.

PN416

MR G GUORGI: If this Commission finds that it is appropriate for an experienced occupational health and safety officer, if you find that a person who takes a medication that is known to be safe by the employer and by the employee and also that it has no effect and that he didn't complete a form to advise that there are no side effects, and that is actually going to be the conclusion of this particular case.

PN417

That that is possible and that he has to then find a - I beg your pardon, if - he should have submitted absolutely everything in case he might just get - some other medication might be found, if that's the conclusion, I repeat myself, and you're right, Deputy President, I've frustrated Booth C, I've frustrated you clearly now and I'm frustrating this Full Bench, because I'm repeating myself.

PN418

I'm repeating myself over and over saying the actual - the facts of the case. To declare complete loss of trust and confidence in a man because he didn't fill in a form despite his safe decision, it was a safe decision, everyone believes it, if he made it again, as I've said earlier, and I'm repeating myself, then if he can be dismissed on this technicality that is unreasonable because there's an unreasonable argument that someone taking an over the counter medication like this can be dismissed, then there's very little that I can actually say more to add to that.

PN419

DEPUTY PRESIDENT ANDERSON: The Commissioner found the dismissal was unfair.

PN420

MR G GUORGI: Sorry?

PN421

DEPUTY PRESIDENT ANDERSON: The Commissioner found the dismissal was unfair so the Commissioner wasn't saying you can be dismissed. The Commissioner was saying there was a dismissal and it was unfair but the Commissioner has said that her decision about unfairness is not because there was no valid reason, but because of certain other factors.

PN422

One of the three allegations of misconduct was not established, two were, and the two that were, were not serious misconduct but they - nonetheless she was satisfied that Mr Guorgi continued to maintain a lack of understanding of the policy, a lack of acceptance, at least, of the policy and she believed it was properly interpreted, or should be properly interpreted, and that reinstatement was inappropriate given that he was the compliance officer of the policy.

PN423

MR G GUORGI: Deputy President, I - - -

PN424

DEPUTY PRESIDENT ANDERSON: I don't think it's fair to suggest that the Commissioner or even this Full Bench is suggesting that the company can dismiss in circumstances that you say is unfair because the Commission has found it to be unfair.

PN425

MR G GUORGI: It has, unfair, and unreasonable in parts and also it has to be based upon a valid reason and that is the point. I believe that is the very sticking point. Of all of these thousands of pages, that's what we're talking about. Did he misunderstand the policy? That's the question. Is that policy open to misunderstanding? If the company's only getting three or four of these forms every ‑ and if they can't even access the forms, is it likely, is it likely that these forms only managers can access them and not everybody else?

PN426

If it's not in the induction pack that people are trained, that the company's formed that Michael Guorgi did not do this, he was trained by his former manager as to how to do it, he's delivering what the company does. He didn't write the training pack, and so if they don't declare it there, they can't access the forms beforehand, most of the people that come through, Michael follows up and gets them to fill in the forms.

PN427

Evidence was submitted that supervisors don't even know where the forms are and some of them don't know. Is that a problem with an individual or is that a problem with a poorly worded policy that's not correctly conveyed to employees? That's the question. Because if Michael's going to be hung out to dry here, and I mean those words very deliberately, for being held to this terse, very difficult interpretation in this way, then it has to be fair and balanced in some other - just balanced.

PN428

There's nothing I can say, if that's the finding. If someone can take a medication safely and be dismissed, lose his career, lose his house, his family, move away because of that decision, that needs to be put in and there are other things in this case that I put in this appeal that goes to the very core of the honesty and the integrity of the allegations made and I don't know why but there's no mention of the missing evidence.

PN429

Why is there no mention of it? A witness, giving evidence before the Fair Work Commission in this matter under oath, submitted a report that was wrong. If it was small - and admitted to it. If it was small or if it was big, there's no measure. The Fair Work Act does not say a small lie or a big lie. That's what happened. That speaks to a more than just unreasonableness.

PN430

Why did the company submit all of this evidence? Booth C asked this question, "What am I to do with all of this evidence, all of this conduct, okay, before me? Why was it put in? If it's not relevant and it's not relied upon, why was it relevant? Why was it put in?"

PN431

COMMISSIONER SPENCER: But Mr Guorgi, Booth C squarely deals with that. She doesn't rely on that and she is critical of the company, talks about the pattern of conduct towards your brother and the over-reach. She clearly deals with those matters and they don't form a basis for her determination.

PN432

MR G GUORGI: Commissioner, I've read this many times and I've seen those words written down and I don't understand why that that is not a factor in the decision making. As I said earlier at the beginning when I started, if this case came forward and that was the only evidence, that he misinterpreted that policy, and this career should be destroyed as a result, and if that was the case, I think this would be a very different case. There is - - -

PN433

COMMISSIONER SPENCER: But Mr Guorgi, in terms of this case, you need to argue, you need to demonstrate the error that she's made.

PN434

MR G GUORGI: There is - at what point, Commissioner ‑ sorry. Sorry to interrupt.

PN435

COMMISSIONER SPENCER: No, no, you're right.

PN436

MR G GUORGI: At what point is the company and their actions, at what point does it become a picture to what is actually going here and why the company has stated loss of trust? At what point? I mean, is it the evidence that's not been submitted? Is it the company submitting evidence it knows is useless and has no merit because their own internal investigation dismissed it but they still submitted it?

PN437

Is it at a point at which someone, the senior HR person, can get up and make allegations against a man that are untrue and have no basis? Is that the point? Is there a reason why Stephanee Belmonte's examinations have been dismissed? We're talking about this case. What are the surrounding circumstances here around this case?

PN438

DEPUTY PRESIDENT CLANCY: Mr Guorgi, the Commissioner was required to establish for herself whether this termination was harsh, unjust or unreasonable. It was not the Commissioner's role to simply read an investigation report and accept its findings and then make her decision. Do you understand that?

PN439

MR G GUORGI: What you're saying is, I believe, is that based on her view and her judgment - - -

PN440

DEPUTY PRESIDENT CLANCY: She hears the evidence before her not what some investigation report concludes. She hears from all the witnesses that appear before her. She refers, and is referred, to other documentation which is submitted in evidence but she doesn't accept what an investigation report says happened. She has to be satisfied herself as to what occurred and make findings in relation to it and as will be seen through the result in the decision, that the allegations, some of the allegations, that were relied upon by the company as a basis to terminate Mr Guorgi's employment were not upheld by the Commissioner.

PN441

She satisfied herself on the question of harsh, unjust or unreasonable and formed the view that his termination was unfair. She turns then to the question of remedy and deals with the question of whether reinstatement is appropriate or not and she makes those findings in the paragraphs we've referred you to.

PN442

If you're going to be referring to evidence there that goes to the question of reinstatement, are there matters that go to what evidence under cross‑examination was adduced from Ms Loughborough because her witness statement, in a section of it, dealt squarely with the question of reinstatement and that was her evidence-in-chief.

PN443

Was there cross-examination of Ms Loughborough in relation to the specific issue of reinstatement that you say lent itself to a finding that reinstatement was an appropriate remedy and that the Commissioner was in error?

PN444

MR G GUORGI: Sorry. If the statement is going to be considered separate to her answers on cross-examination, in terms of her reference to her interpretation of the policy, if that is going to be taken away and if the same thing for the manager, the safety manager, if they're not going to be taken on face value for what they said, I will take this one not that one, it is impossible for an employee, impossible to meet that level if it's not explicit and if the Commissioner found that based on the evidence, then the evidence under cross-examination must have been ignored. It must have been not taken into account. That is what she said.

PN445

DEPUTY PRESIDENT CLANCY: What evidence on cross‑examination?

PN446

MR G GUORGI: The answers that Ms Loughborough has to - it was open to her to interpret if the medication - - -

PN447

DEPUTY PRESIDENT CLANCY: No, again, you're drifting back, okay. Your proposition which you've stated and re-stated before us today is that Mr Guorgi's interpretation of the drug and alcohol policy was a reasonable one, the company's one was not correct and what's more the evidence of Ms Belmonte and Ms Loughborough was such that they indicated that their interpretation could not be correct, okay.

PN448

We understand that's the case you've put and you've been putting it for two hours. What I'm asking you is on this issue of reinstatement, was Ms Loughborough cross‑examined by you on the appropriateness of reinstatement and coming out of that cross-examination, is there anything that you wish to draw our attention to to support your proposition that the Commissioner committed an error in finding that reinstatement was inappropriate?

PN449

MR G GUORGI: First of all, Deputy President, I am a lay person and I've never cross-examined anybody in my life so when I'm presented with a case and I am to ask technical and legal questions of someone in anticipation of using that later, that's just not my skillset and I think, as most of the lay people that will come here, that is a difficulty. If I was to answer your question - - -

PN450

COMMISSIONER SPENCER: Well Mr Guorgi, I have to indicate that 90 percent of parties that run their cases in this Commission are lay persons and we're not strictly bound by the rules of evidence and that would be the manner in which the Commissioner has viewed the material.

PN451

MR G GUORGI: I do, Commissioner. I think I'm speaking to the difficulty of putting forward a very technical argument in this case. I mean, there's the decisions that are made here and - no, sorry, I've lost my train of thought, Deputy President, but if Ms Loughborough's trust and confidence is the primary reason for not reinstating Michael Guorgi for a breach, as it was - - -

PN452

DEPUTY PRESIDENT CLANCY: Well it wasn't just for the breach.

PN453

MR G GUORGI: Yes, I appreciate that.

PN454

DEPUTY PRESIDENT CLANCY: It was, and you've got to continue to go back to what is contained in the decision ‑ ‑ ‑

PN455

MR G GUORGI: That's for relevance.

PN456

DEPUTY PRESIDENT CLANCY: - - - it's not simply on the basis of an instance of non-compliance, so it's not simply based on that instance of non-compliance, but with Mr Guorgi's attitude to and understanding his evidence of the policy that gives rise to concerns of trust and confidence that he would properly implement it, all right?

PN457

MR G GUORGI: Yes.

PN458

DEPUTY PRESIDENT CLANCY: It gets back to your primary point today which is he was correct in his interpretation of the policy and she was not.

PN459

MR G GUORGI: Michael's interpretation of the policy as it stood is clearly different to the Commissioner's and it will be - - -

PN460

DEPUTY PRESIDENT CLANCY: You say that's an error?

PN461

MR G GUORGI: I believe that there's an equivocal interpretation of that policy, yes, I do. I think there is and I think - - -

PN462

DEPUTY PRESIDENT CLANCY: Sorry, you're saying its equivocal now?

PN463

MR G GUORGI: I've said it's equivocal earlier. That if Michael Guorgi's interpretation is not incorrect is what I'm saying, that is not an incorrect interpretation of that policy as it has been - as is practice. Again, you mentioned I've been talking for two hours now and answering questions and going around in circles, apparently, and I'm speaking to trust and confidence.

PN464

Did I ask Ms Loughborough that? I don't know. It was clear that her opinion was very firm and that she was informed by Sandra Taylor and Stephanee Belmonte and took the investigation on face value. Her statement, however, under the show cause letter and the arguments that I'm hearing here, that the interpretation otherwise is that every single medication has to be, if that is the ultimate interpretation and, Michael Guorgi was wrong and that you have to submit everything, anything that you take, then that is clearly not written down and if that the case, to say that you must always do it, then it then opens up another series of serious problems with this policy if you have to report every single thing, which is what Booth C has concluded by excluding those words as to the impairment and relevant to the persons wronged if you exclude those, then you report everything.

PN465

It's a very simple policy to write if that's the case but if that's the case, and that is allowed to stand, that decision, then that flies in the face of other Acts serving to protect people and their privacy from being - exposing themselves to discrimination and unfair behaviour. The Sex Discrimination Act and the Disability Discrimination Act are very specific.

PN466

It is behaviour or actions or requirements of an employer to an employee, which was other situations, to expose them unnecessarily and an employer has no right, if it has nothing to do with their business, it is not a safety issue, it's not relevant to someone's role, has nothing to do with what they do as a business as they conduct themselves, they shouldn't be given the right to ask every single medication that comes across people's desk.

PN467

The Workplace Health and Safety Act is not written that way. It's written very reasonably just as I believe this policy is written as it is very reasonable and it's fully supported by Michael Guorgi and I'm not arguing that at all, but if this was allowed to stand and this company was allowed to implement the policy, as I am hearing the argument and has been presented, then that flies in the face of the discrimination Acts.

PN468

It does, because then you expose these people, who have to declare things they simply don't want to declare and you don't have to go very far to see what opinions and someone's poor opinion of someone, for whatever reason they may have, will do. You only have to look at the findings report, to look at the allegations that were made in there and see what will happen if somebody has it upon themselves to be opinionated and have no facts to base a lot of their claims on. Dismissed or not, that doesn't matter.

PN469

But if that's allowed to stand, it flies in the face of that Act and it cannot stand on its own. No employer should have that right. I run a business, a small business, it's a software business, and as I said earlier, I deal with public health authorities, I deal with transport companies that use our software to manage their business. My staff have to be very, very careful what they do.

PN470

We have to write software that has to be safe in how they deploy - how the companies use it, how the businesses use us. I run a business, I've been doing it for 25 years. I've never read the Fair Work Act in my life, I've never had to, but now I do. I had to now. It's been a learning curve but as this policy has been interpreted to dismiss Michael Guorgi is in error because it does not then - it then exposes these people and is in breach of those Acts.

PN471

If someone has something private that's got nothing to do with the business they should keep it private and that policy cannot be interpreted in the way that it has been interpreted and that's my - - -

PN472

COMMISSIONER SPENCER: Just for completeness, Mr Guorgi, did you say you considered there was an error in the calculations?

PN473

MR G GUORGI: I beg your pardon, the second part of the appeal, yes, there was. There is a - to the actual remedy that was granted at the time. Michael Guorgi was not dismissed, it was found that summary dismissal wasn't warranted and the company dismissed him for the tampering, which was the serious misconduct, and so he was still entitled to time in lieu because there was no tampering and so there was no serious misconduct to answer to and that serious misconduct is listed in the company's policies. I don't know the number off the top of my head.

PN474

COMMISSIONER SPENCER: But Mr Guorgi, are you saying that he wasn't paid the wages in lieu of notice?

PN475

MR G GUORGI: No, he was not. That's a mistake. He was not paid in lieu of notice. That quantum, the four weeks that he was supposed to be paid, was not paid. There is a mistake in the very first thing by Workers First, that submission, there is a statement there that says that but his separation certificate and his statement doesn't include it. It's a mistake. There's four weeks leave that's missing and there's also an increase in the - so there's an increase on that side but it needs to be decreased with his actual salary that was under-estimated when I quoted I think $1500 but ended up being about $1900, I think.

PN476

DEPUTY PRESIDENT ANDERSON: Mr Guorgi, when the Commissioner takes that four weeks into account, she references, at footnote 35 of her decision, the applicant's outline of submissions dated 12 March 2018, paragraph six.

PN477

MR G GUORGI: Yes, it's a - - -

PN478

DEPUTY PRESIDENT ANDERSON: Are you saying that that was an incorrect statement?

PN479

MR G GUORGI: That was a mistake and it's the reason I ended up doing this case, correct. Yes, that's an error and it's seen in his final pay.

PN480

DEPUTY PRESIDENT ANDERSON: Where is the evidence that Mr Guorgi did not receive the four weeks in lieu of notice?

PN481

MR BOWER: If it assists the Bench, the respondent doesn't actually take this point. We acknowledge that he was not paid the four weeks and we acknowledge there's an error there. That's not something that we're disputing.

PN482

DEPUTY PRESIDENT ANDERSON: Thank you.

PN483

DEPUTY PRESIDENT CLANCY: Is there an agreement as to what the four weeks would equate to?

PN484

MR BOWER: It would be something subject to calculation by our payroll. I know there's some evidence in terms of his separation certificate as to his hourly and weekly wage.

PN485

COMMISSIONER SPENCER: Well in 163, the Commissioner indicates that $1,447.13 is the weekly amount. Is that agreed?

PN486

MR BOWER: Commissioner, given the comments in 164, we don't dispute that.

PN487

COMMISSIONER SPENCER: All right. As I understand, you're agreeing to a remedy of that amount plus superannuation?

PN488

MR BOWER: Yes.

PN489

COMMISSIONER SPENCER: Mr Guorgi, does that seem to remedy that amount?

PN490

MR G GUORGI: The calculation - - -

PN491

COMMISSIONER SPENCER: The employer representative is indicating they would pay that amount, and we'll have to get some undertaking as to when they'll pay it, but that four weeks at $1,447.13 plus superannuation for each of those weeks.

PN492

MR G GUORGI: That would correct the obvious error made at the time that the order was made, thank you.

PN493

COMMISSIONER SPENCER: All right, thank you, and as I understand - well just for the record, it may not be an error in the decision, it was based on the applicant's submissions.

PN494

MR G GUORGI: I beg your pardon, sorry? The calculation?

PN495

COMMISSIONER SPENCER: Yes.

PN496

MR G GUORGI: No. I acknowledge that that was an error in the submissions made by Workers First and I wasn't aware of that.

PN497

COMMISSIONER SPENCER: All right, thank you, thank you. That's all I just wanted to correct, thank you.

PN498

MR G GUORGI: Yes.

PN499

DEPUTY PRESIDENT CLANCY: Does that deal with the second limb of your case on appeal, Mr Guorgi?

PN500

MR G GUORGI: That deals with that section, thank you, yes.

PN501

DEPUTY PRESIDENT CLANCY: Yes, all right. All right. Commissioner Spencer, have you got any further questions of Mr Guorgi?

PN502

COMMISSIONER SPENCER: No, thank you, Deputy President, no, thank you.

PN503

DEPUTY PRESIDENT CLANCY: All right. Mr Guorgi, what we might do now is hear from Mr Bower. While he's speaking, if there are matters you want to respond to, please make a note of them and we'll come back to you for final submissions.

PN504

MR G GUORGI: Okay.

PN505

DEPUTY PRESIDENT CLANCY: All right? Thank you.

PN506

MR BOWER: Thank you, Deputy President. As you know, we've filed submissions in this matter. I don't want to go through those. Suffice to say at paragraph 12, I think, we set out what we say are the threshold questions that are required to be answered in terms of grant of permission to appeal, that is whether it's in the public interest and where it involves a question of fact, the identification of a significant error of fact in the decision.

PN507

Our position is fairly straight forward here, that is that the applicant has not identified any errors of fact in the decision or any errors in the exercise of a discretion of the Commissioner in reaching the findings that she did. We note, as the Bench has, that Mr Guorgi's termination was found unfair and ultimately it's the remedy that is at issue here.

PN508

We say that the process of deliberation undertaken by the Commissioner, as outlined in the decision, is orthodox in the way in which she approaches that. I note that earlier in the decision, paragraphs 96 through 101, she further addresses the context for her findings in relation to reinstatement, that there is a reasonable basis for concluding that there's been a loss of trust and confidence between the managing director, in particular, of the business and Mr Guorgi as an employee and on that basis, the primary remedy of reinstatement's not appropriate.

PN509

She then goes on to make relevant findings in relation to what compensation on that basis should be ordered and makes an order in relation to that and I would just say for completeness in relation to the error in calculation, we say that's something that could be dealt with under the Commissioner's general powers to correct or vary a decision in relation to an error.

PN510

It was not the subject of submissions by the respondent in relation to the amounts ‑ the basis of the calculation and as has already been noted, the Commissioner relied on previous statement and submissions that had filed by the applicant in the matter by his previous representatives. Unless the Bench has anything further to ask me, we really rest on those very basic submissions in relation to this matter.

PN511

DEPUTY PRESIDENT ANDERSON: Well, Mr Bower, the Commissioner, in paragraph 151, points to the principle that simply because a company officer says they've lost trust and confidence is not sufficient that such a claim needs to be rationally based and carefully scrutinised and in her decision, the Commissioner, in concluding that she was satisfied there was a loss of trust and confidence that would render a reinstatement order inappropriate, the Commissioner relies, it would seem, significantly on the evidence of Ms Loughborough.

PN512

MR BOWER: Loughborough.

PN513

DEPUTY PRESIDENT ANDERSON: Yes. Ms Loughborough's evidence asserted, both in her statement and also in her cross-examination, as I read it, that she believed that the company's interpretation of the policy was the correct interpretation and reasonable.

PN514

MR BOWER: Yes.

PN515

DEPUTY PRESIDENT ANDERSON: What do you say to the proposition Mr Guorgi advances that if the company's interpretation of the policy was correct and reasonable, that it would require anything that an employee takes to be disclosed?

PN516

MR BOWER: Well we say clearly that that's right, it does require disclosure of any over the counter or prescription medication and Ms Loughborough gave evidence about her own medication, the fact that she'd been on cough syrup and that she'd filled in a medical declaration form on that basis, but what I'd say about the evidence before the Commission, there was a lot of discussion around the policy in relation to the medical declaration form.

PN517

Most of that evidence was around the requirement that the form be submitted as soon as reasonably practicable. That was actually the focus of most of the evidence before the Commissioner not rather whether you should submit one or not but how long before or how long after you start taking medication should you submit the form and the evidence given by Ms Loughborough and by Ms Taylor was that as soon as reasonably practicable means effectively immediately if there's no reason for any delay in filing that form and that the idea of having the form filed was that when it came time for a drug test, we would aware if somebody was on a medication, given what that medication form says in relation to them having consulted with their doctor and being assured that it wouldn't adversely impact in terms of their role or duties.

PN518

We say yes, it should be and on every occasion because I know there was discussion at first instance on the fact that Mr Guorgi had previously filed these medical declaration forms, including one for Panadeine Forte and there was a suggestion that the fact that he'd filed one in the past meant that we would always be aware that he had taken or would - may be taking Panadeine Forte or other codeine based medications and quite clearly the evidence from the business was that's not enough.

PN519

If somebody is taking a medication and they stop taking it and then start taking it another occasion, they have to re‑submit a form just to let us know that that's what's happening but for the exact reasons that were discussed by the Deputy President in terms of someone coming to have a random drug test and at that stage suddenly saying, as Mr Guorgi did on this occasion, "Look, I know there's going to be a problem with this drug test because I'm taking some medication".

PN520

We should already know that that's the case so that when we do the drug test we can say "Well we understand you're on this medication. We're still going to have the drug test". Mr Guorgi was then - as if there's a non-negative result, as Mr Guorgi went through, there's then external testing to see what's the level of the drug and whether there's anything else in that person's system which might pose a risk.

PN521

It's part of us being able to mitigate the risk of people taking over the counter or other prescription medications that we know what medication they've taken and that they have ticked the box to say that they've spoken to their doctor and their doctor is happy that it's not going to adversely affect them in their duties given, as is also required by that form, the person has explained what their role involves.

PN522

We say in relation to Mr Guorgi, the constant description of him sitting in an office at a computer is not entirely correct. As a compliance officer, he is required to be out and about in both bus and ferry business, that involves investigating accidents, attending any incidents/scenes, getting in and out of ferries and confined spaces as well as on buses as well. It's not an administrative role, it's an active compliance role that he was in.

PN523

DEPUTY PRESIDENT CLANCY: Was there any evidence before the Commissioner in the event that Mr Guorgi was ordered to be reinstated, which policy he would be implementing? Would he be implementing the policy as it was presented to the Commissioner or had, in the course of the proceedings or prior to or the conclusion of proceedings, the policy been altered by the employer?

PN524

MR BOWER: The policy has not been altered prior to, during or since. The company's position is still that the policy is rational, readable and reasonable and that there is no need to make any alterations to it in its current form.

PN525

DEPUTY PRESIDENT ANDERSON: Thank you, Mr Bower.

PN526

DEPUTY PRESIDENT CLANCY: Commissioner Spencer, do you have any questions?

PN527

COMMISSIONER SPENCER: No, thank you, Deputy President.

PN528

DEPUTY PRESIDENT CLANCY: Thank you.

PN529

MR BOWER: If the Commission pleases.

PN530

DEPUTY PRESIDENT CLANCY: Right, thank you. Mr Guorgi, do you have anything you want to say in reply?

PN531

MR G GUORGI: Just to clarify my own hearing, that the company does expect every medication, prescription or over the counter, regardless of its effect and that's how the company's interpreting that policy. Is that what the company's position was, sorry, Mr Bower?

PN532

MR BOWER: Yes.

PN533

MR G GUORGI: One last one in relation to the policy. The drug and alcohol policy is - or the drug and alcohol tester, I beg your pardon, role is an additional role to the compliance co-ordinator role and the compliance co‑ordinator role has numerous tasks of return to work, worker's compensation claims and other reporting. The drug and alcohol testing procedure is one of, as I said, 20 or 25.

PN534

It's an additional task that was added to Michael's normal compliance role. That is the title of his job, compliance with standards and - beg your pardon, to standards, return to work, WorkCover, those sort of things, not drug testing. One of the things Michael said, and I'll finish up on this, that if the drug and alcohol policy and they weren't happy with the way that he was conducting them, it was the first he'd ever heard of it.

PN535

No one had mentioned it before, there's no previous breach and there's no serious breach at all, so if they didn't like the policy and they didn't prevent it, he said that they could just stop him from conducting drug and alcohol tests and perform the role of compliance for legislation for the transport business separate to the drug and alcohol policy. There's no other problem with the policy interpretation of this man outside of this one interpretation. Thank you.

PN536

DEPUTY PRESIDENT CLANCY: Thank you, Mr Guorgi. Thank you, Mr Bower. The Full Bench will reserve and consider its decision in this matter. It will deliver its decision in writing and you'll both be informed of it when the decision is to be published. Thank you.

PN537

MR BOWER: Thank you.

ADJOURNED INDEFINITELY牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋牋 [3.40 PM]

Fair Work Commission Transcripts

C2018/7350, Transcript of Proceedings [2019] FWCTrans 46 (14 February 2019)