FIFO worker told ‘urine’ trouble after THC trickery

“Impossible” urine samples, evidence custody disputes, and a last-minute cancellation have ended in a FIFO worker’s unfair dismissal self-cancelled 30 minutes before its hearing, and a rejected cost incurred application by his employer.

Shane Stephens’ application for unfair dismissal and reinstatement to Citic Pacific Mining Management – which he cancelled less than an hour before the scheduled hearing – concerned a disputed urine sample that left emergency services scratching their heads.

Prior to failing a random drug test, Stephens submitted a “fridge cold [sample] …outside the acceptable temperature range of 33 to 38 degrees Celsius”, with an Emergency Services worker noting: “It is impossible for a fluid to come out of the body outside of that range without the individual being severely sick or dead.”

After the second sample showed traces of THC, Stephens was dismissed for both the positive result and for the earlier tampering, despite claiming the chain of custody itself was corrupted.

Fair Work Commission deputy president Michael Easton characterised Stephens’ application as “not strong”; helped by the fact that Stephens filed submissions at 2:00am the day after it was due, and neglected to respond to multiple emails from the Fair Work Commission.

Stephens discontinued his application approximately 37 minutes before the scheduled hearing time, claiming to be overwhelmed and underprepared, despite previous assertions that he was “100 per cent” intending to attend the hearing.

Citic Pacific’s application for costs under s.400A of the Fair Work Act 2009 was heard on the day of the scheduled hearing by Easton “so that the time allocated for the hearing was not completely wasted”.

According to Citic Pacific, the costs were incurred “because of the unreasonable acts and omissions of Mr Stephens” – including not responding in a timely manner, requesting cross-examination of the four Citic Pacific witnesses before discontinuing the application, and previously seeking an adjournment before cancellation.

Further, it was alleged that the late nature of the cancellation was a deliberate inconvenience.

In his decision to dismiss Citic Pacific’s costs application, Easton said the company “incurred costs properly defending Mr Stephens’ claim”.

“Mr Stephens’ tardiness and late discontinuance were unreasonable, but I am not satisfied that unreasonable conduct caused Citic Pacific to incur costs that they would otherwise have incurred,” Easton said.

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