HR Zero Drug Policy – OHS & Unfair Dismissal

Harbour City Ferries Pty Ltd v Toms [2014] FWCB 6249

The employer dismissed the Mr Toms the respondent because of his serious misconduct, namely attending work and testing positive to marijuana in contravention of their zero tolerance policy on drugs. The circumstances in which this became known followed a crash of the ferry Marjorie Jackson of which he was the ferry master. It was not in issue that the marijuana contributed to the respondent’s impairment at the time of the crash because there was no evidence of this. Deputy President Lawrence at first instance found in favour of the employee because:

  • that Mr Toms had over 17 years satisfactory service with Harbour City and its predecessor;
  • that Mr Toms’ marijuana use arose from the need to sedate a painful shoulder;
  • that Mr Toms’ previous three drug tests had all been negative;
  • that there was no impairment established;
  • that there was no link between the drug test and the accident;
  • that the accident caused little damage;
  • that Mr Toms was assisting Harbour City by covering their shift;
  • that the accident was reported appropriately and in a timely fashion;
  • that Mr Toms was open and co-operative with the investigation;
  • that when presented with a positive drug test Mr Toms admitted his fault and did so in a reasonable time frame after the accident;
  • that Mr Brown and Captain Noronha continued to have confidence in Mr Toms after the accident;
  • that Mr Toms had not been able to find alternate work;
  • that his skills and qualifications did not translate easily to other employment and,
  • that there were other sanctions short of dismissal which could have been more reasonably implemented in relation to the applicants breach of policy.

However, on appeal this was set aside:

[27] The lack of any impairment arising from drug use, the absence of a link between drug use and the accident and the absence of substantial damage to the Marjorie Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the Policy. 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. [28] The mitigating factors referred to and relied on by Deputy President Lawrence are not mitigating factors that address the core issue, which was the serious misconduct which led to the dismissal of Mr Toms. The core issue, the valid reason for termination of Mr Tom’s employment was his deliberate disobedience, as a senior employee, of a significant policy. The Deputy President does not address Mr Tom’s failure to comply with the Policy. The only mitigating factor relevant to this issue was the use of marijuana as pain relief. Consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the Policy.

David Cormack – Brisbane Barrister & Mediator

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