A FULL Court of the Federal Court yesterday (16 March 2015) confirmed there was no error in a recent Fair Work Commission Full Bench decision that a ferry master who tested positive for cannabis after crashing a ferry in Sydney harbour should not be reinstated.

In the decision at first instance, FWC Deputy President Jeff Lawrence found that vessel operator Harbour City Ferries had a valid reason for the man’s dismissal after breaching his employer’s ‘zero tolerance’ policy for positive drug tests in the workplace.

Despite that, however, DP Lawrence found the ferry master should be reinstated because there was no evidentiary link between a positive drug test and impairment. Therefore, there was no evidence the man was actually impaired, he said.

A FWC Full Bench overturned that decision on appeal, finding DP Lawrence took into account “irrelevant” factors in deciding the dismissal was unfair.

The Full Bench said the serious misconduct for which the man was suspended and later dismissed was that he knowingly breached the company’s strict policy after smoking cannabis then turning up for work. The fact there may not be an evidentiary link between that positive test result and actual impairment was beside the point, the Full Bench said.

In yesterday’s decision, a Full Court of the Federal Court confirmed its role was to decide if the FWC Full Bench had made an error in exercising its appeal function, not to decide anew whether the man’s dismissal was fair or unfair.

The Full Court found no evidence of any error in the Full Bench’s decision which meant the decision overturning the man’s reinstatement should stand. This result vindicated Harbour City Ferries in its original decision to terminate the man’s employment.

Harbour City Ferries was represented in the matter by Stuart Wood, SC, well-known to AMMA members and who will speak at the 2015 AMMA Resource People National Conference in August this year.

Implications for employers

While issues of impairment and drug use have been subject to numerous, often conflicting decisions in recent years, AMMA welcomes yesterday’s confirmation that the employer’s decision will stand.

In AMMA’s view, this matter should never have made it to a hearing in the first instance, let alone all the way to a Full Court of the Federal Court.

The implications of this series of decisions for employers is that they should feel confident in enforcing a zero tolerance policy in the workplace, provided such policies are clearly communicated to staff and fairly applied and enforced.

AMMA’s proposals for unfair dismissal reform

AMMA’s comprehensive submission to the Productivity Commission’s review of Australia’s WR laws has recommended several changes to the Fair Work Act as it applies to unfair dismissals so that such matters do not come before the FWC in future with the potential for reinstatement. AMMA’s recommendations to the PC include that:

  • The question of whether an employer had a valid reason to dismiss someone should be the primary consideration for the FWC.
  • In all such cases where a valid reason for termination exists, the FWC should be prevented from ordering the reinstatement of the employee.
  • At the very least, the FWC should not be empowered under the legislation to reinstate employees who were dismissed for breaches of work health and safety procedures; sexual harassment; bullying conduct; serious misconduct; or acts of violence.

Click here to read AMMA’s full submission to the Productivity Commission review.