The decision to reinstate a pot-smoking Sydney ferry driver has been overturned by the
Fair Work Commission full bench.
Christopher Toms was dismissed in August last year by employer Harbour City Ferries, after he tested positive for marijuana in a drug test, in breach of the company’s zero-tolerance policy.
One month earlier, the ferry he was operating had collided with a pylon, prompting the test.
Toms eventually admitted to having smoked pot the previous evening to relieve pain from a shoulder injury. He had not expected to work the following day, but agreed to come in when another staff member called in sick.
He lodged an unfair dismissal claim and in April this year, Deputy President Jeff Lawrence found his employment termination was unfair, ordering his reinstatement.
At the time, workplace law expert Peter Vitale described Fair Work’s decision as “unfortunate”.
“It doesn’t offer support to employers who are attempting to meet their obligations under work health and safety laws,” he said. “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 appealed the decision to the full bench of the Fair Work commission, who this week ruled to uphold Toms’ dismissal.
The full bench remarked that “the lack of any impairment arising from drug use, the absence of a link between drug use and the accident, and the absence of substantial damage to the [ferry] are not factors relevant to the ground of misconduct identified as non-compliance with the policy.”
They continued, "The core issue, the valid reason for termination of [the applicant’s] employment, was his deliberate disobedience, as a senior employee, of a significant policy.”
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