Marijuana User Fails in Bid for Reinstatement


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.

Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35

For more information on this update or if you require assistance with drafting policies or any other employment law matters please contact Tom Darbyshire on (08) 9321 3755.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.