Mr Christopher Toms had been employed by Sydney Ferries from
1996 until its privatisation in July 2012, following which his
employment was transferred to Harbour City Ferries Pty Ltd (Harbour
City). By July 2013, he was the Master of the ferry Marjorie
At 9:30pm on the evening of 24 July 2013, Mr Toms smoked a
marijuana cigarette to assist with pain in his shoulder. The
following morning, Mr Toms was called in to cover for a sick
employee. Whilst in charge of the Marjorie Jackson, an accident
occurred in which a passenger was injured. Although the accident
was caused by an error of judgment on the part of Mr Toms, there
was no evidence to suggest that he was affected by marijuana at the
time of the incident nor that his use of marijuana had any role in
Harbour City had in place the Sydney Ferries Drug and Alcohol
Policy (the Policy) and a Code of Conduct. Pursuant to those
documents, which Mr Toms was aware of, an employee must not
commence work if they are "affected by alcohol or other
drugs". This was defined to include a person who tested
positive to drugs (specifically including marijuana) in a urine
Mr Toms tested positive and was ultimately dismissed. There was
no suggestion that the procedure or process leading to his
dismissal was inappropriate or unfair.
Mr Toms made a claim for unfair dismissal. This was successful
at first instance and the Fair Work Commission (the FWC) ordered
his reinstatement. In reaching this conclusion, the Commissioner
accepted that the dismissal was 'harsh' (being one of the
three bases for unfair dismissal – harsh, unjust or
unreasonable). The Commissioner took into account a number of
factors which included his length of satisfactory service, the
absence of any link between the use of marijuana and the incident,
the fact that he used the marijuana for pain relief, that he did
not expect to be working that day and that his experience was
narrow such that he would have difficulty finding other work.
Harbour City appealed.
In the appeal, the FWC noted that this matter related to
significant occupational health and safety issues, giving rise to
issues of general importance affecting the public interest.
The FWC were critical of urine testing as an effective method of
drug detection – this is a hotly contested issue at present
which goes beyond the scope of this article – but this was
not considered to be a crucial issue to this case. The fact was
that, rightly or wrongly, the Policy and Code of Conduct had
clearly been breached.
The FWC acknowledged that some of the factors upon which the
Commissioner had relied gave rise to a degree of sympathy for Mr
Toms, but overturned the finding that the dismissal was unfair. The
FWC focussed particularly on the nature and purpose of the Policy,
"The fact is that Harbour City required its policy complied
with without discussion or variation. As an employer charged with
public safety it does not want to have a discussion following an
accident as to whether or not the level of drug use of one of its
captains was a factor. It does not want to listen to the uninformed
in the broadcasting or other communications industry talk about
drug tests establishing impairment. It does not need to have a
discussion with any relevant insurer, litigant or passenger's
legal representative about those issues. What it wants is obedience
to the policy. Harbour City never wants to have to have the
It followed that the FWC found that Mr Toms'
"Deliberate disobedience, as a senior employee, of a
significant policy" was acceptable grounds for his
Whilst this case is not a precedent for rigid adherence to
policies without regard for the circumstances, it highlights the
importance of a clear, detailed, well-communicated policy that is
consistently enforced. Although some sympathy may be felt for Mr
Toms – as clearly the Commissioner in the first instance did
– the employer had in place a clear policy which was known,
understood and deliberately breached and the FWC upheld its right
to rely upon that breach as justification for termination.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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