A car salesman who allegedly gave a substance presumed to be cocaine to a young co-worker has failed in his bid for an unfair dismissal claim against his employer.
The Fair Work Commission found the dismissal of Emmanuel Young by Stewart Automotive Group in New South Wales for gross professional misconduct was not harsh, unjust or unreasonable.
Stewart Automotive Group alleged on June 28 last year, Young offered a newly-recruited female clerk a substance which he led her to believe was cocaine and he ingested that substance with her in his company car during work hours.
The young employee, named only as PM in commission documents, gave evidence that she accepted the drug but later found it had little effect on her.
Young was dismissed on July 14, following an investigation of the matter by the company.
But Young gave conflicting evidence, denying taking any drugs at the workplace on that day, or any other day, or inviting his co-worker to his car.
He claimed the real reason for his dismissal was that there was not enough work for both him and another co-worker employed in a similar position to his own, whom he claims was a personal friend of a senior manager.
Young told the commission Stewart Automotive had seized upon the opportunity to get rid of him for the benefit of the other co-worker.
But commissioner Helen Cargill accepted the young clerk’s evidence and found Young’s actions amounted to misconduct and provided a valid reason for his dismissal.
“In this regard I prefer the evidence of PM,” Cargill said. “I found her to be a credible witness who gave clear, firm and responsive evidence.”
Cargill found Stewart Automotive Group had a drug and alcohol policy in place which prohibited employees from consuming or being under the influence of alcohol or any illegal substance while at work and Young had breached this policy.
Ben Tallboys, senior associate at law firm Russell Kennedy, told SmartCompany while the commission accepted misconduct occurred, no one was absolutely certain the young worker was offered cocaine.
“However, the commission accepted the co-worker’s evidence that the applicant offered the co-worker cocaine, and that they both ingested a substance that the applicant alleged was cocaine, and this was sufficient to amount to misconduct warranting dismissal,” Tallboys says.
Tallboys says it was important that Stewart Automotive Group had a clear drug and alcohol policy, and that Young was aware of the policy before engaging in the relevant misconduct.
“This case again highlights an employer’s obligation to satisfy the commission that the relevant misconduct warranting a dismissal actually occurred,” he says.
“The employer must demonstrate not only that the relevant conduct occurred, but also that the conduct was prohibited.”
Repost from SmartCompany.com.au
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