Full Federal Court Upholds Dismissal of Ferry Captain Who Failed to Comply with His Employer's Zero Tolerance Drug Policy 

In Toms v Harbour City Ferries Pty Limited [2015] FCAFC 35, the Full Federal Court of Australia upheld a decision of the Full Bench of the Fair Work Commission ("FWC") overturning the reinstatement of Mr Toms, a ferry captain who was dismissed after failing a drug test.

Mr Toms agreed to fill a vacant shift in July 2013, and his vessel collided with a wharf. He failed the routine drug test following the accident, having smoked marijuana 16 hours earlier to relieve shoulder pain. Mr Toms was initially suspended by his employer, Harbour City Ferries, in accordance with its zero tolerance policy toward drugs and alcohol. He was dismissed one month later following an investigation. Mr Toms applied to the FWC for a remedy of unfair dismissal.

Decision of Deputy President Lawrence of the FWC

Deputy President Lawrence decided that Mr Toms's dismissal was unfair, being "harsh, unjust or unreasonable" within the meaning of section 385 of the Fair Work Act 2009 (Cth). This was based on the lack of evidence of a causal link between Mr Toms's drug use and the accident. Harbour City Ferries appealed against the decision of Deputy President Lawrence to the Full Bench of the FWC.

Decision of the Full Bench of the FWC 

The Full Bench considered that Deputy President Lawrence's focus on mitigating factors, and particularly the absence of evidence of a link between the drug use and the accident, was misguided, given the "serious misconduct" involved. The central factor in determining whether the dismissal was unfair was Mr Toms's "deliberate disobedience" of Harbour City Ferries' zero tolerance drug and alcohol policy. The fact that the marijuana was used as pain relief was a mitigating factor that was rendered irrelevant by Mr Toms' accepting a shift knowing that he could be in breach of the policy.

In light of the importance of the policy, the Full Bench overturned the reinstatement of Mr Toms. Mr Toms appealed against the decision of the Full Bench of the FWC to the Full Federal Court. 

Appeal to the Full Federal Court 

The Full Federal Court emphasised the importance of the appeals process in supervising the development of "industrial standards". However, the Court was ultimately deferential to the views of the Full Bench of the FWC and held that the Full Bench had not fallen into error. Justice Buchanan, with whom Allsop CJ and Siopis J agreed, stated that: 

The FWC is entitled to approach its task by focusing on considerations it considers to be relevant… [I]ts 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….

As such, the decision of the Full Bench overturning the reinstatement of Mr Toms was not disturbed.

Points to Note for Employers 

This decision demonstrates that failure to comply with zero tolerance drug and alcohol policies can form a legitimate basis for the dismissal of an employee. It also reflects the FWC's willingness to uphold such policies, even in the presence of mitigating factors that may otherwise weigh in favour of the employee, particularly when such policies impact safety.