Drug taking employee’s unfair dismissal finding overturned

The Full Bench of the Fair Work Commission has overturned a decision earlier this year to reinstate a ferry captain who was involved in an accident and was subsequently found to have consumed marijuana before commencing his shift. The employer had in place a zero tolerance drug and alcohol policy and had terminated his employment.

At first instance, despite finding a valid reason for dismissal, the Fair Work Commission found the dismissal was harsh, unjust or unreasonable and reinstated the employee. They took into account what were said to be mitigating circumstances, including the employee’s significant period of unblemished service, his use of the drug for alleged pain relief and the absence of any link between the drug use and the incident involving his vessel.

His employer appealed and the Full Bench overturned the decision to reinstate. The Full Bench recognised the primary purpose of the employer’s drug and alcohol policy was to ensure the employer complied with its statutory and public duties to ensure the safety of staff and passengers on its ferries.

Accordingly, the cause of the accident was irrelevant. It was found that the employer had a duty to ensure safe work practices are followed and regardless of any mitigating circumstances, the employee failed to comply with a policy that was primarily concerned with the protection of health and safety.

In reaching its decision, the Full Bench disregarded the mitigating features accepted earlier and focused on the core issue, namely the non-compliance with an important health and safety policy.

Implications for employers: Employers should be heartened by the decision of the Full Bench given the focus on the valid safety reason for dismissal.  It is also important to always ensure that a procedurally fair approach is taken to any termination.