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Smoking gun: strong workplace policy sees dope smoking Sydney ferry driver’s reinstatement overturned

A Sydney ferry driver, who was dismissed after crashing his boat into a wharf and then failing a drug test, has had his reinstatement overturned via a Fair Work Commission full bench appeal.

Harbour City Ferries successfully appealed an earlier decision by the commission to give a ship master back his job after he was found to have smoked marijuana before colliding with a wharf in July 2013.

 

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The ship master, who had worked on Sydney ferries since 1996, admitted to smoking marijuana with his son to relieve shoulder pain between 9:30pm and 10pm on July 24 last year, the night before the accident.

However, at the time of the incident he had been working in a “holiday relief” role, in which he replaced other ferry masters who were on planned leave and he had not expected to work the following day. He had not been scheduled to work, but was called in at lunchtime to replace another ferry master who was sick.

The accident was determined to have been caused by the driver approaching the wharf too quickly, causing the ferry to swing. Upon disembarking, all passengers appeared unaffected and the driver reported the incident to controlling officers.

The driver completed a drug test later that evening, following which he was suspended.

In July 2014, he argued to the Fair Work Commission the dismissal was unfair because there was “no evidence of impairment” in his performance and given his 17-year history on the job, a one-off incident did not justify dismissal.

An appeal was successful at first instance and the Fair Work Commission (the FWC) ordered his reinstatement.  In reaching this conclusion, the Commissioner deemed the dismissal was harsh, unjust or unreasonable because of the absence of any link between the use of marijuana and the incident, the fact that he used the marijuana for pain relief, that he did not expect to be working that day and that his experience was narrow such that he would have difficulty finding other work, no other evidence of drug use in his career, no link between the drug test and the accident, that there was little damage caused by the accident, that he was open and co-operative in the investigation, that he had been unable to find other employment and because he had not lost the confidence of other staff.

An expert witness also said urine drug tests are not the most accurate way to detect cannabis and the amount in his system was unlikely to impact him.

Employment lawyer Peter Vitale observed: “I think on balance it’s an unfortunate decision because it doesn’t offer support to employers who are attempting to meet their obligations under work health and safety laws,” he says.

“It makes it very difficult when the WorkCover or WorkSafe authorities are saying these are the things you need to do to meet your duty under that Act and then the FWC prevents employers from giving any real affect to those laws.”

Harbour City Ferries argued it had acted appropriately in its action, given its commitment to the safety of the public and other employees. The company was vindicated when three appeal Commissioners decided the driver had been in breach of Harbour City’s required drug and alcohol policy.

The FWC found: “The core issue, the valid reason for termination of… employment was his deliberate disobedience, as a senior employee, of a significant policy.”

“The only mitigating factor relevant to this issue was the use of marijuana as pain relief. Consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the policy,” said the judges.

After Harbour City Ferries’ successful appeal, Mr Vitale said “The full bench has decided public safety is a substantial and important matter”.

“Any employee in breach of policies directed to occupational health and safety or public safety matters could only avoid termination for serious misconduct in very exceptional circumstances.”

“It seems the full bench has got to the right outcome. That is why we’ve got appeal rights.”

Steffen Faurby, CEO of Harbour City Ferries, said in a statement the decision by the commission had vindicated his company’s strict policies around drug and alcohol use.

Harbour City had in place the Sydney Ferries Drug and Alcohol Policy (the Policy) and a Code of Conduct.  Pursuant to those documents, which the driver was aware of, an employee must not commence work if they are “affected by alcohol or other drugs”.  This was defined to include a person who tested positive to drugs (specifically including marijuana) in a urine test.

“We are in the business of safety,” said Mr Faurby. “Tens of thousands of commuters trust us every day to transport them safely around the harbour. It is absolutely imperative that our employees abide by our zero tolerance policy when it comes to drugs and alcohol.”

In the company’s appeal, the FWC noted that this matter related to significant occupational health and safety issues, giving rise to issues of general importance affecting the public interest.

The FWC focussed particularly on the nature and purpose of the Policy, stating:

“The fact is that Harbour City required its policy complied with, without discussion or variation. 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 followed that the FWC found that the driver’s “deliberate disobedience, as a senior employee, of a significant policy” was acceptable grounds for his dismissal.

Whilst this case is not a precedent for rigid adherence to policies without regard for the circumstances, it highlights the importance of a clear, detailed, well-communicated policy that is consistently enforced.  The employer had in place a clear policy which was known, understood and deliberately breached and the FWC upheld its right to rely upon that breach as justification for termination.

iHR believes that well-documented HR policies and procedures help staff to understand how an organisation ‘works’ and are also tangible evidence that your organisation has taken reasonable steps to minimise business risks and unlawful practice or behaviour.

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