In October 2014, we reported on
the case of Mr Toms, who was employed as a ferry master. An
accident occurred for which Mr Toms was at fault. It emerged that
he had consumed marijuana the night before to assist with shoulder
pain. At that time, he had not been expecting to work the next
morning. There was no suggestion that Mr Toms was affected by
marijuana at the time of the accident, nor that marijuana had any
role in the accident. A positive test in these circumstances was a
clear breach of the employer's drug testing policy. Mr Toms was
dismissed as a result of the positive drug test.
Mr Toms claimed unfair dismissal. The Fair Work Commission
(FWC) at first instance agreed the dismissal was
harsh and ordered that he be reinstated. The employer appealed and
the Full Court of the Fair Work Commission (FCFWC)
overturned the decision.
There is no appeal right from the FCFWC on an unfair dismissal
claim, but Mr Toms applied to the Federal Court for an order
setting aside the decision of the FCFWC on the grounds that it had
fallen into 'jurisdictional error' – in effect, that
it had failed to carry out its role properly and that its decision
should therefore be overturned.
The Federal Court did not accept Mr Toms' argument. It was
of the view that the FCFWC did properly carry out its functions by
forming the view that the FWC had fallen into error and accordingly
by overturning the FWC's decision with its own. The Federal
Court did not need to consider whether it agreed with the
FCFWC's decision or not – the Fair Work Act
provides that the highest appeal available for an unfair dismissal
application is to the FCFWC. As long as the FCFWC had understood
and performed its role in accordance with the Fair Work
Act – which the Federal Court found that it had –
the decision was final.
The Federal Court also took the opportunity to highlight the
importance of an employer's right to manage its own business in
determining an unfair dismissal claim. The Fair Work Act
explicitly states that one of the objects of the unfair dismissal
regime is to "ensure that a 'fair go all round' is
accorded to both the employer and employee". The concept of a
"fair go all round" was not however introduced into the
Fair Work Act in a vacuum – the 'history' of
the term, at the time it was introduced into the Fair Work
Act, can be (and should be, in this case) used as a guide to
the meaning of the term. The Federal Court traced the origins of
the concept to a 1971 judgment from NSW, which specifically
incorporated into this concept the "importance, but not the
inviolability, of the employer's right to manage his [or her,
or its] business".
This series of judgments provides a degree of comfort to
businesses that wish to strictly enforce policies in circumstances
where, despite a clear breach, there is a degree of sympathy
flowing from the potential harshness of the result.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
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