Background

 

An employee engaged as a ferry master with Harbour City Ferries Pty Ltd (Harbour City) was called into work to replace another ferry master who was absent from work. On the previous day, the relieving ferry master had smoked marijuana for pain relief purposes.

 

The ferry master was aware of Harbour City's zero tolerance drug and alcohol policy and its application, but did not decline to work the shift. Later in the shift, the ferry master crashed into a wharf, striking a pylon.

 

After an investigation, Harbour City terminated the ferry master in line with its zero-tolerance policy.

 

Please [click here] to read our prior article providing further background details.

 

Prior decisions

 

In the first instance, the Fair Work Commission found that although there was a valid reason for termination, the dismissal was unfair due to a number of factors including the ferry master's seniority, high level of responsibility, his cooperation and that he had used marijuana for medicinal purposes.

 

This decision was overturned on appeal to a Full Bench of the Fair Work Commission who found there was a valid reason for the termination, given, amongst other factors, that the ferry master was aware of the zero tolerance policy, its application and Harbour City's requirement for a high level of compliance with the policy.

 

Appeal to the Full Court

 

The ferry master appealed the matter to a Full Court of the Federal Court who dismissed the appeal finding that the Full Bench was entitled to approach its tasks by focusing on considerations it considered to be relevant, which in this case, included Harbour City's reliance on the zero tolerance policy.  "Here, its view… was that the core question - the deliberate disobedience of a significant policy (one central to the safety of the public and the public's confidence in the safety of ferry travel) was not touched by a lack of evidence of impairment, or by a lack of evidence of causal relationship between the event and the cannabis, or by other considerations that were said to weigh in the balance of favour of the applicant."

 

Lessons

 

The decision provides extra weight for employers seeking to rely on non compliance with zero tolerance policies when dismissing employees, particularly where the work involves serious safety concerns.

 

If you would like to know more about this case or matters related to drug and alcohol policies in the workplace 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.