In an important case for our mining, construction and transport clients, the Federal Court has upheld an employer’s zero tolerance drug sacking.
A Sydney Harbour ferry captain failed a urine test after crashing his vessel into a wharf.
The ferry master filled a vacant shift in July 2013, even though he had smoked marijuana 16 hours earlier because of shoulder pain.
His employer suspended him without pay and then dismissed him after an investigation. The employer had a zero-tolerance policy.
The worker applied for unfair dismissal but the case was dismissed by the Fair Work Commission Full Bench, and (on appeal) by the Federal Court.
The FWC full bench held:
- That the “core issue” was the ferry master’s “deliberate disobedience, as a senior employee, of a significant policy”; and
- “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,”
Implications for employers
Significantly, the dismissal was upheld even though:
- The employer did not prove impairment arising from the drug use; and
- There was no link between the drug use and the vessel collision.
The decision is important for many of our employer clients that regularly test employees for drugs.
However it should not be understood as a blanket rule that any employer can always dismiss an employee who fails a drug test. Each case has to be considered according to its unique circumstances.