Caution needed in enforcing ‘zero tolerance’ drug and alcohol policies

Christopher Toms v Harbour City Ferries Pty Ltd [2014] FWC 2327

The Fair Work Commission recently found that the dismissal of a ferry master for breach of his employer’s drug and alcohol policy was unfair. The decision highlights the need for employers to be cautious when dismissing an employee for breaching a ‘zero tolerance’ drug and alcohol policy.

The facts

Mr Toms was employed by Harbour City Ferries as a Permanent Master. On 25 July 2013, Toms was the master of a ferry when it collided with a wharf. He was given a blood test shortly after the incident and tested positive for marijuana. Toms confirmed he had used marijuana the previous day but said he had not expected to work on 25 July because he was on holiday leave. He had been asked at short notice to replace another employee who had called in sick.

Toms was suspended without pay, and later dismissed for a breach of the employer’s ‘Code of Conduct’, which set out a policy of ‘zero tolerance’ for employees attending work whilst under the influence of drugs or alcohol. Toms applied to the Fair Work Commission arguing he had been unfairly dismissed. The employer argued that it had acted appropriately in dismissing Toms in accordance with its policies, particularly given its ‘commitment to the safety of the public and its other employees’.

Was the dismissal ‘harsh, unjust or unreasonable’?

The Commission had to decide whether the dismissal was harsh, unjust or unreasonable under the Fair Work Act.

The Commission concluded that there was a valid reason for the employer to dismiss Toms. There was undoubtedly a breach of the employer’s code and policies, and Toms was aware of the policy. The Commission found that in order to comply with the employer’s policies, Toms should have advised his employer about his marijuana use prior to accepting the shift on 25 July.

However, the Commission noted that this was ‘not the end of the matter’. Section 387 of the Act also requires the Commission to consider any other relevant matters in order to ensure a ‘fair go all round’ to both the employer and Toms. The Commission found that the employer gave insufficient weight to the fact that:

1. Toms had 17 years of satisfactory service;
2. Toms had tested negative to drugs several times previously and was thus not demonstrably a habitual drug user;
3. there was no evidence linking Toms’ marijuana use to the accident. It appeared operational issues and boat performance issues caused the accident;
4. the accident caused little damage and no passengers were hurt;
5. Toms was not rostered to work on 25 July, which did not excuse his non-disclosure but indicated he was attempting to help the employer out by covering the shift;
6. Toms reported the incident appropriately and co-operated with investigations;
7. there was no concern that Toms would be unable to safely carry out his duties in the future;
8. the dismissal had a serious impact on Toms, as he had not found alternative work and his skills and qualifications did not translate easily to other industries; and
9. there were a number of sanctions short of dismissal that the employer could have imposed.

The Commission’s decision

The Commission found that although there was a valid reason for the dismissal, the dismissal was ‘harsh, unjust or unreasonable’ and ordered Toms’ reinstatement.  However, Toms was not awarded his lost wages, as the Commission found that he should incur some penalty because of his breach of the policy.

Implications for transport operators

This case illustrates the care employers need to take before dismissing employees for breaches of drug and alcohol policies. Although an employer may be able to prove a breach of a ‘zero tolerance’ policy, to dismiss an employee may not necessarily be fair and reasonable in all the circumstances.

Employers should have regard to all of the circumstances surrounding a breach, including the employee’s previous history, any harm or damage caused by the breach, and the practical consequences that any dismissal would have for the offending employee.

Employers and principal contractors should also be aware that the Road Transport and Distribution and Long Distance Operations Road Safety Remuneration Order 2014 requires certain transport operators to prepare and implement drug and alcohol policies that comply with requirements set out in that Order.

Cooper Grace Ward acts for a variety of transport operators from owner drivers to national logistics companies. We can advise on all aspects of transport operations, including preparing compliant drug and alcohol policies and advising employers in the event of any breach of such policies. If you would like to discuss your business requirements, please do not hesitate to contact Gillian Bristow or Annie Smeaton on (07) 3231 2444.

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