Christopher Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327 (16 April 2014)

Main issue: Drug testing

Background:

A long-serving ferry master was dismissed after returning a positive drug test for marijuana following an incident in which the ferry he was operating collided with a wharf on the Parramatta River in Sydney.

The worker claimed that he had smoked marijuana the night before to ease his shoulder pain, that he was not rostered to work but rather was covering a shift for someone and that the collision caused little damage.  He further claimed that there was no evidence that he was impaired by drugs and that a positive test result arising from conduct outside the workplace was not a valid reason for dismissal.

Harbour City Ferries have a zero tolerance drug policy and claimed that the breach was particularly serious given his leadership position.

Decision:

While the Commission held that Harbour City Ferries had a valid reason to dismiss the worker, it was still found that the dismissal was unfair.

The Commission noted Harbour City Ferries should have taken into account his 17 years of “unblemished service”, the lack of evidence that he was a regular drug user or that he was impaired at work and that the incident caused little damage and no harm to passengers.