Mr Christopher Toms was employed by Harbour City Ferries Pty Ltd as a Ferry Master. He had been employed since 1996. Initially his position was a general hand and later an engineer. He then became a permanent ferry master in March 2011.
On 25 July 2013, a day on which he was rostered off from duty, Mr Toms agreed to come into work to replace another employee on afternoon shift in that employee's absence. The evening before that shift, Mr Toms later admitted that he smoked marijuana and did so because he had shoulder pain.
Whilst on duty, Mr Toms misjudged an approach of the ferry to a wharf and the ferry struck a pylon. There was no one injured as a result of the incident but it was a reportable incident. Mr Toms reported the incident about 30 minutes after it occurred although he was required to do so at once under the company's drug and alcohol policy. It was also required under the drug and alcohol policy to cease his duties and to attend the company's office where he was required to undertake a drug test. Mr Toms did not disclose to the company that he had smoked marijuana the previous evening until the drug test returned a positive reading that evening. When the drug test returned a positive reading for cannabis, Mr Tom's was immediately suspended and subsequently dismissed.
The company has a zero tolerance policy for drugs and alcohol at the workplace. It also has strict statutory obligations regarding safety and the operation of ferries whilst being operated under the influence of alcohol or drugs.
Mr Toms pursued an unfair dismissal claim against the company. At first instance, Deputy President Lawrence of the Fair Work Commission held that there was a valid reason for the dismissal of Mr Toms, however, then found that the dismissal was harsh, unjust and unreasonable because of various reasons including that there was no evidence that a positive drug test was proof of Mr Toms' impairment and there was no evidence of a link between the drug use and the incident itself. There was no evidence led by Mr Toms that the company's drug and alcohol policy was not effectively communicated to him or that its terms were unreasonable.
The decision of the Deputy President was then appealed by the company to a Full Bench of the Fair Work Commission. The Full Bench accepted the Deputy President's finding that there was a valid reason for the dismissal but considered that whilst the company's policy about drug and alcohol use was highly relevant, the absence of proving impairment of Mr Toms was not and therefore the Deputy President was in error in determining that the dismissal was harsh, unjust or unreasonable.
The Full Bench held that:
"The lack of any impairment arising from drug use, the absence of a link between drug use and the accident, and the absence of the substantial damage to the Marjorie Jackson (the ferry) are not factors relevant to the ground of misconduct identified as non-compliance with 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 incident as to whether or not the level of drug use 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 passengers' legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion."
"Mitigating factors referred to and relied upon by the Deputy President are not mitigating factors that address the core issue, which was the serious misconduct which led to the dismissal of Mr Toms. The core issue, the valid reason for the termination of Mr Toms' employment was his deliberate disobedience as a senior employee of a significant policy. The Deputy President did not address Mr Toms' failure to comply with the policy. The only mitigating factor relevant to the issue was the use of marijuana as pain relief. Consequent upon that explanation is the decision to accept the shift while aware of the likelihood of being in breach of the policy."
The decision of the Full Bench of the Fair Work Commission was then appealed by Mr Toms to the Full Federal Court. The court considered and then accepted that the approach taken by the Full Bench of the Fair Work Commission in determining and overturning the decision of the Deputy President at first instance was appropriate and did not disclose any error.
This authoritative decision of the Full Federal Court highlights the fact that tribunals and courts will accept that prima facie a failure to comply with a company drug and alcohol policy can constitute valid dismissal. Employers are well advised in any event to ensure that such policies are properly drafted and effectively communicated to employees to ensure that acting on them may not give rise to a valid unfair dismissal claim.
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