A FULL Bench of the Fair Work Commission has overturned an unfair dismissal ruling that saw the master of a Sydney ferry service reinstated to his former position, despite causing a collision resulting in injury and subsequently failing a workplace drug test.
Appealing the decision handed down in April this year, Harbour City Ferries argued the breach of the company’s drug and alcohol policy was not adequately considered by Deputy President Jeff Lawrence when determining whether the dismissal was harsh, unjust or unreasonable.
The Full Bench, comprising Senior Deputy President Drake, Senior Deputy President Hamberger and Commissioner Johns, agreed with the employer’s position.
“Deputy President Lawrence dealt with the breach of the Code of Conduct in his decision when considering valid reason,” the Bench noted.
“However, we consider that there is a wider context and a higher level of seriousness involved in the misconduct of the employee which was not taken into account by Deputy President Lawrence.”
The Bench said the employee had erred in attending work with the knowledge that he would have traces of marijuana in his system, placing him in direct contravention of the company’s code of conduct.
“The employee was aware of the policy and its application. He was aware when he accepted the shift as Master of the Marjorie Jackson that it was likely that he would be in breach of the policy if tested,” the Bench noted.
However, the Bench also criticised Deputy President Lawrence for giving too much weight to ‘factors not relevant to the ground of misconduct identified as non-compliance with the [company’s drug and alcohol policy]’.
“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,” it said.
“The core issue, the valid reason for termination of the respondent’s employment was his deliberate disobedience, as a senior employee, of a significant policy. The Deputy President does not address the employee’s failure to comply with the Policy.”
The Full Bench quashed the decision of DP Lawrence.
Call for appeals bench escalates
National resource employer group AMMA welcomed the appeal decision after voicing concerns that the Fair Work Commission had impeded on the employer’s capacity to maintain its workplace safety standards in the first instance ruling.
“The first instance decision clearly failed the common sense test and again demonstrated how better precedent-setting from a separate, independent IR appeals jurisdiction could in future see less unmeritorious cases brought before the commission ,” AMMA chief Steve Knott said.
“We have seen a worrying trend where adventurous commission members are taking into account personal circumstances including the financial position or length of service of employees sacked for gross misconduct or clear breaches of contract.”
AMMA has long advocated for the establishment of an appeals tribunal to protect consistency in decisions handed down by the Fair Work Commission. For more information about our policy activities, click here.