Ferry Driver Terminated for Marijuana Use – Compliance With Drug Policy Enforced

Mr Christopher Toms had been employed by Sydney Ferries from 1996 until its privatisation in July 2012, following which his employment was transferred to Harbour City Ferries Pty Ltd (Harbour City).  By July 2013, he was the Master of the ferry Marjorie Jackson.

At 9:30pm on the evening of 24 July 2013, Mr Toms smoked a marijuana cigarette to assist with pain in his shoulder.  The following morning, Mr Toms was called in to cover for a sick employee.  Whilst in charge of the Marjorie Jackson, an accident occurred in which a passenger was injured.  Although the accident was caused by an error of judgment on the part of Mr Toms, there was no evidence to suggest that he was affected by marijuana at the time of the incident nor that his use of marijuana had any role in the incident.

Harbour City had in place the Sydney Ferries Drug and Alcohol Policy (the Policy) and a Code of Conduct.  Pursuant to those documents, which Mr Toms was aware of, an employee must not commence work if they are “affected by alcohol or other drugs”.  This was defined to include a person who tested positive to drugs (specifically including marijuana) in a urine test.

Mr Toms tested positive and was ultimately dismissed.  There was no suggestion that the procedure or process leading to his dismissal was inappropriate or unfair.

Mr Toms made a claim for unfair dismissal.  This was successful at first instance and the Fair Work Commission (the FWC) ordered his reinstatement.  In reaching this conclusion, the Commissioner accepted that the dismissal was ‘harsh’ (being one of the three bases for unfair dismissal – harsh, unjust or unreasonable). The Commissioner took into account a number of factors which included his length of satisfactory service, the absence of any link between the use of marijuana and the incident, the fact that he used the marijuana for pain relief, that he did not expect to be working that day and that his experience was narrow such that he would have difficulty finding other work.

Harbour City appealed.

In the appeal, the FWC noted that this matter related to significant occupational health and safety issues, giving rise to issues of general importance affecting the public interest.

The FWC were critical of urine testing as an effective method of drug detection – this is a hotly contested issue at present which goes beyond the scope of this article – but this was not considered to be a crucial issue to this case.  The fact was that, rightly or wrongly, the Policy and Code of Conduct had clearly been breached.

The FWC acknowledged that some of the factors upon which the Commissioner had relied gave rise to a degree of sympathy for Mr Toms, but overturned the finding that the dismissal was unfair.  The FWC focussed particularly on the nature and purpose of the Policy, stating:

“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.”

It followed that the FWC found that Mr Toms’ “Deliberate disobedience, as a senior employee, of a significant policy” was acceptable grounds for his dismissal.

Whilst this case is not a precedent for rigid adherence to policies without regard for the circumstances, it highlights the importance of a clear, detailed, well-communicated policy that is consistently enforced.  Although some sympathy may be felt for Mr Toms – as clearly the Commissioner in the first instance did – the employer had in place a clear policy which was known, understood and deliberately breached and the FWC upheld its right to rely upon that breach as justification for termination.

If you require assistance with drafting policies or any other employment law matter, please do not hesitate to contact a member of our team on (08) 9321 3755.

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