Drugs in the workplace are unacceptable. They pose a health and safety risk to all employees. Policies implemented by employers need to be adhered to. To not do so can be misconduct.

In Harbour City Ferries Pty Ltd v Mr Christopher Toms, the Fair Work Commission recently sent a message to confirm this after it dismissed a workers’ application for unfair dismissal after he took marijuana to ease the pain of a sore shoulder and then piloted a Sydney Harbour ferry and had an accident. Mr Toms was dismissed from employment for a breach of the Sydney Ferries Drug and Alcohol Policy (Policy) and Code of Conduct

At 9:30pm on the evening of July 24, 2013, Mr Toms smoked a marijuana cigarette to assist him with pain in his shoulder. On July 25, 2013, Mr Toms was telephoned by Harbour City and asked to replace a Master who was on sick leave. At that time Mr Toms was on holiday relief during which period he replaced other Masters who were on planned leave.

He did not refuse the shift on the basis of any drug or alcohol intake. On July 25, when Mr Toms was Master of the Marjorie Jackson, an accident occurred. Following the accident Mr Toms did not immediately reveal that he might have evidence of drug use in his system.

At first instance, deputy president Lawrence found there was a valid reason for the termination of Mr Toms’ employment but, notwithstanding that valid reason, the dismissal of Mr Toms was harsh, unjust or unreasonable.

Paragraph 18.3 of the Code of Conduct provided: “18.3 Employees must not commence or continue to work if they are affected by alcohol or other drugs”.

The Full Bench was not persuaded urine testing, the agreed method of drug testing at Harbour City, was a guide as to the actual presence of marijuana in an employee’s system or any impairment arising as a consequence. It is a testing system, which in this case indicated past use and not present impairment.

While the Full Bench criticised the method of drug testing, the Bench concentrated on the misconduct of Mr Toms as his attending work in breach of the Policy.

The test administered on behalf of Harbour City was positive. There was no evidence however that Mr Toms was impaired by drug consumption. Harbour City’s enquiry, found, Mr Toms lost control of the vessel as a result of an error of judgement in manoeuvring the vessel and excessive speed in approaching and berthing.

The issue though was the serious misconduct, which was a valid reason for the termination of Mr Toms’ employment. The serious misconduct was the breach of an important policy by an employee at the most senior level of employment at Harbour City in a situation where there was compliance with procedural fairness.

It is clear Harbour City identified Mr Toms’ misconduct as a serious breach of their Code of Conduct, which provides “zero tolerance” for drugs and alcohol.

Mr Toms could have refused the shift because he was in breach of the Policy without specification as to the cause.

When determining the termination of Mr Toms’ employment was harsh, unjust or unreasonable, deputy president Lawrence took into account his length of service (17 years), his reason for using marijuana, the fact the accident caused little damage and there was no link between the accident and the marijuana use.

Mr Toms’ seniority and his very high level of responsibility were factors that attracted sympathy when considering the outcome, but equally those factors demand a high level of compliance with policy.

The Full Bench said:

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 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.

The core issue, the valid reason for termination of Mr Toms’ employment was his deliberate disobedience, as a senior employee, of a significant policy. The deputy president did not address Mr Toms’ failure to comply with the Policy. Consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the Policy.

Lessons for employers:

Ensure that you have a valid drug and alcohol policy and make sure that it is enforced. If you need assistance, contact the association.