It's not about the whether the drugs affected the performance of your duties but whether you complied with the policy

Recently, a Full Bench of the Fair Work Commission (the Full Bench) affirmed there was a valid reason for the dismissal of an employee who contravened a zero tolerance drug and alcohol  workplace policy and reversed the initial finding that the dismissal was unfair.

Background

The employee was engaged as a ferry master with Harbour City Ferries Pty Ltd (Harbour City). 

On the evening of 24 July 2013 the employee had smoked marijuana for pain relief purposes and was not due to work the following day as he was on annual leave.  He received a call from Harbour City, and was asked to replace a master who was on sick leave.  

The employee had replaced other masters during this period and did not refuse the shift on the basis of drug intake. The employee was also aware of Harbour City's drug and alcohol policy and its application. There was an accident while the employee was performing the duties when he crashed the ferry into a wharf. 

Harbour City conducted a drug test on the employee following the accident and there was a positive reading. There was no evidence that the employee was impaired by drug consumption resulting in the accident, rather the accident occurred from error of judgment and excessive speed.

At first instance, Lawrence DP found that although there was a valid reason for termination, the dismissal was unfair because of a number of factors including the employee seniority, high level of responsibility, his cooperation and that he used the marijuana for medicinal purposes.  

Appeal

On appeal the Full Bench found:

• there was a wider context and higher level of seriousness beyond the contravention of the policy involved in the misconduct which was not taken into account by Lawrence DP;

• the Employee was aware of the policy and its application and was aware when he accepted the shift that it was likely that he would be in breach of the policy if tested; 

• the employee could have refused the shift because he was in breach of the policy;

• although the employee cooperated with the subsequent investigation, he did not immediately reveal that he was in breach of the policy;

• the employee's seniority and very high level of responsibility "…demand a very high level of compliance with the policy.";

• the employee "…put off the confession as long as he could"; and

• the absence of link between the drug use and the accident "…are not factors relevant to the ground of misconduct identified as non-compliance with the Policy".

The Full Bench further said:

"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 discussion."

Lessons

This case is welcome news for employers who dismiss employees for non compliance with workplace policies, particularly drugs and alcohol policies.

The terms of the policy, the seniority and responsibilities of the employee (including the functions the employee performs) and the industry in which the employee is engaged in will all be relevant in determining whether or not the dismissal in the particular circumstances is unfair, even though there may be a valid reason for the dismissal. 

If you would like more information about the case or the matter generally, please contact National Workplace Lawyers on +61 2 9233 3989.

National Workplace Lawyers

Note — this is for information purposes only and does not purport to be comprehensive or to render legal advice.