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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 43234
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am the Director of a Registered

Customer Question

My name is Philip ***** *****.
I am the Director of a Registered Training Organisation and Inspection and Sales of Lifting Equipment Company Cranewise Australia Pty Ltd.
I have been working as a contractor at the Mt Rawdon Gold Mine, via Mt Perry since 2003, and was originally employed there on construction of the mine in 2000.
The mine has changed hands over the years through Equigold NL, LGL, Newcrest and now Evolution Mining.
I have always been utilised to provide
High Risk Work Training
Other Short Course Training
Crane Inspections
Lifting Equipment inspections
Lifting Equipment Sales
Consulting
Spare Crane Operator or Rigger when required
Over this time, I have never had any safety breaches, I have always received positive feedback from management and employees on my duties performed.
In late October last year I tested positive for THC in a blanket drug test.
I was allowed to return to site to continue my duties provided I supply a negative test at my own expense and submit to a urine test at every visit until notified otherwise.
This has taken place since then with no positive results.
On Tues the 2/6/15 I was booked to perform 3 x Forklift HRW (High Risk Work) Assessments for 3 employees at the mine whom I had previously conducted training for.
I arrived on site and then went down to the safety office for my obligatory urine test. Before being tested I reported I was on a course of antibiotics and had one ibuprofen the day previously
The test reported a positive reading for Synthetic Marijuana.
I have taken no substances whatsoever since the previous positive result, consequently I was very dismayed at an obviously faulty test and relayed this to the testing officers.
I was stood down for the day and returned to Bundaberg.
I was told I would have to wait for the lab results in approximately two days to determine the next course of action and the testing officer ***** *****ndenburg stated these tests never have false positives!
I waited until Friday 5/6/15 then rang the mine looking for the testing officer who was usually the head WHS person on site.
This person was away and I instead spoke to the new head WHS person ***** ***** who was apparently now above the previous one.
He informed me that he had not yet received the results and would ring me when he did.
He rang back later that day and informed me that the test was clear, it was a false positive.
He then informed me all HRW Training was to be suspended until at least the end of July, I asked why, and his reply was that he needed to review the whole training regime.
Over the weekend of 6-7/6/15 I was talking to one of the production employees who mentioned that at the safety meeting on Friday morning ***** ***** had agitatedly stated that they had two high Risk Work assessors test positive for drugs recently. As I am the only HRW Assessor that goes to site, it was obviously me he was talking about. An argument then started about the drugs testing and Mark also stated he could tell what drug a person had been taking by the new 8 panel urine tests they use and he was an expert at this. This statement was argued against by the employees who said only the lab results could confirm this.
He then randomly picked two employees to go for testing, these employees were also on prescription medication and the tests came back positive and they were not to do any HRW activities for the day.
I believe this meeting should have been documented but I don’t know if it was.
In my opinion ***** ***** has breached the privacy act and possibly caused a defamation of my character?
It is also my opinion that he decided to postpone all HRW training when he received the clear test results because he realised he had made a mistake making those statements at the morning meeting.
This week I have been trying to contact particular supervisors at the mine to confirm our Lifting equipment Inspections will go ahead in the coming weeks as it involves one of my employees, to chase up some unpaid invoices, and to find out what is happening with the training.
I have no success in contacting anyone by phone and am worried this person has put a blanket ban on talking to me?
What do you think I should do and what recourse would I have if I lose my work at this mine?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Morning
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
Was there anyone else present when he made the remarks and did he actually say your name so that the other person was aware he was talking about you?
If so and it is not rue about the drugs but the tests were incorrect then you have a case in defamation.
If it is true that you tested positively then there is no case in defamation.
But there may be case for breach of privacy.
Does the workplace have a policy and was this policy followed by Mark and others? If not then he has breached it.
Have you had tests independently to prove that you are not on any drugs?
Customer: replied 1 year ago.
Hi Leon
Question 1
There were many others present as it was a morning meeting and although he did not mention my name, it could not be about anybody else as I am the only HRW Assessor who attends this workplace and was the one who should have conducted assessments two days earlier that were cancelled as I was sent home.
The privacy act states"The new definition of 'personal information' - when is an individual 'reasonably identifiable'?
29 April 2013
When the Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) (Amending Act) commences in March 2014 the definition of 'personal information' in the Privacy Act 1988 (Cth) (Privacy Act) will be replaced with the following:'personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:
a. whether the information or opinion is true or not; and
b. whether the information or opinion is recorded in a material form or not.'
This new definition of personal information includes information about an individual which, when combined with other information (which may not be controlled by the same entity), identifies an individual or renders the individual reasonably identifiable.
This is a significant development as the current definition of 'personal information' requires that the identity of the individual concerned be apparent, or reasonably ascertainable, from the subject information or opinion.
If multiple documents potentially controlled by different entities may be considered in determining whether an individual is reasonably identifiable under the Amending Act, a key issue that will face entities is how to determine whether the threshold of 'reasonably identifiable' has been reached."I believe I am reasonably identifiable in this instance.Question 2
I tested positive in October last year after lab results.
This statement was made last Friday on the assumption that the first urine test on site two days earlier was correct before the results were obtained from the lab, which consequently came back as negative.Question 3 and 4
This a large organisation (with a turnover of over 3 million dollars) and would have a policy although I have not seen it.
I was going to get an independent test on the day but decided that the test from them should come back negative so why bother. The test did come back negative but now I have this problem.
Customer: replied 1 year ago.
Just to clarify, the statement made at the morning meeting about the recent drug test was false.
Customer: replied 1 year ago.
Will I get another reply to this??
Expert:  Leon replied 1 year ago.
Good Morning
1. Has this resulted in you being treated differently by others at work? if the answer is yes then you have a claim in defamation but you have to show what damages you have suffered.
2. The allegation about synthetic marijuana, did this occur a second time?
3. You should have done the independent test so you had something. See your doctor and see if it is not too late.
Customer: replied 1 year ago.
I have had my booked appointments cancelled until further notice as I am a contractor at the site.
Regardless of me being treated differently, now a number of employees at the mine now believe I have failed a recent drug test which I have not.
The first positive test was in October last year and I was fulfilling my obligations by providing a clean test every time I went to site since (many times), until last Tuesday when they recorded an initial positive test.
Mark then commented on this initial test before he had the confirmation of the positive from the lab result which proved to be negative, as it should, as I have taken no substances since the last positive last October.
I should not need my own test as theirs came back negative. It was only the initial on site test that recorded what is now a false positive.My questions therefore is,
Has he defamed my character by letting the crew know I failed a drug test?
Has he breached my privacy by letting the crew know it was me that failed a drug test?
I did not fail the drug test because he did not at that time have the lab results that showed I passed the drug test.
I have been going to that mine for the last 12-13 years and know many of the employees personally, this ***** ***** is a new guy I have never met.
Expert:  Leon replied 1 year ago.
Good Morning,
It is their belief of your failing the drug test and the impression of you being a drug taker that defamation deals with.
The reason why I am requesting you have your own test is to counter their test. If they terminate your employment because of the 2nd test you need to be armed with evidence that the test was incorrect.
I understand and accept the result may be incorrect and that you are innocent party, but if they act in a way and in accordance with the policy and terminate your employment, having your own test results gives you something to take them to court with.
I accept, by telling everybody that you failed the test you have been defamed. You are able to take action in relation to this but any compensation will only be paid if you can show that there has been a resulting loss suffered by you. This means you are unemployable as a result of his actions, you are being treated differently by your peers and are not being given additional work, or anything else that impacts on you directly.
If there's been no impact at all in the way you were treated in any court action would be a waste of time and an apology would be all that the courts would order.
He has also breached privacy and again he will be reprimanded by the employers for breaching a policy and his breach goes back to the defamation of your character.
I would suggest that you obtain the company's policy in relation to privacy and also drug testing and arrange to see a solicitor in Queensland practices in this area of law and have them write to the superiors pointing out the breaches by Mark and also what you have suffered and request some form of compensation or you will take court action.
The act allows for a retraction of the comments as well is an apology by the offending party as a suitable result if there has been no impact or financial loss to the victim.
I hope this makes sense and is of assistance?
Customer: replied 1 year ago.
Thank you for your help.
Can I get a full transcript of this conversation without copying and pasting the individual comments?
Customer: replied 1 year ago.
Sorry.
I've got it!
Expert:  Leon replied 1 year ago.
Good Morning
All the best with it.
You are very welcome and thank you for using my services.
If I have missed anything, or you have any further questions please let me know
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
Regards
Leon
Expert:  Leon replied 1 year ago.
Good Morning
I'm just following up our discussion earlier this week and seeing whether there is anything else I can assist you with.
If I have missed anything, or you have any further questions please let me know.
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
I look forward to hearing from you.
Regards
Leon
Expert:  Leon replied 1 year ago.
Good Evening
I'm just following up our discussion earlier this week and seeing whether there is anything else I can assist you with.
If I have missed anything, or you have any further questions please let me know.
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
I look forward to hearing from you.
Regards
Leon
Expert:  Leon replied 1 year ago.
Good afternoon
I'm just following up our discussion earlier this week and seeing whether there is anything else I can assist you with.
If I have missed anything, or you have any further questions please let me know.
If there is anything else in the future please do not hesitate to ask.
Please do not forget to leave positive feedback.
I look forward to hearing from you.
Regards
Leon