[2014] FWC 2327 [Note: An appeal pursuant to s.604 (C2014/719) was lodged against this decision - refer to Full Bench decision dated 12 September 2014 [[2014] FWCFB 6249] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Toms
v
Harbour City Ferries Pty Ltd
(U2013/13687)

DEPUTY PRESIDENT LAWRENCE

SYDNEY, 16 APRIL 2014

Application for relief from unfair dismissal.

[1] An application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged with the Fair Work Commission (the Commission) by Mr Christopher Toms (the Applicant) against his former employer, Harbour City Ferries Pty Ltd (the Respondent) on 16 September 2013.

[2] The matter was the subject of conciliation on 6 November 2013, at which it was not settled and consequently listed for hearing.

[3] I conducted a programming hearing by telephone on 5 February 2014.

[4] The matter was heard in Sydney on 13 and 14 February 2014.

[5] The Applicant was represented by Mr M. Gibian of counsel who appeared with Mr J. Wydell of the Australian Maritime Officers Union (the AMOU). The AMOU had filed the application and continued to represent the Applicant in the proceedings. The Respondent was represented by Mr D. Moy, the Respondent’s General Manager, People and Culture. I granted Mr Gibian permission to appear pursuant to s.596 of the Act.

[6] The Applicant relied on:

● written submissions filed on 23 December 2013 and 14 February 2014;

● the witness statements of Dr Ken Pidd of the National Centre for Education and Training on Addiction, Flinders University to which numerous technical documents were attached (Exhibit G3);

● the witness statement of the Applicant to which there were numerous documents attached dealing with the history of this matter (Exhibit G2);

● the oral evidence of the Applicant and Dr Pidd.

[7] The Respondent relied on:

● written submission filed on 29 January 2014;

● the witness statement of Aaron Brown, River Service Manager, Harbour City Ferries Pty Ltd (Exhibit M1);

● the witness statement of Aaron Goninon, Health and Wellbeing Co-ordinator, Harbour City Ferries Pty Ltd (Exhibit M2);

● the witness statement of Steve Korkoneas, National Operations and Technical Manager, Medvet Science Pty Ltd (Exhibit M3);

● the witness statement of Captain Melwyn Noronha, Maritime Safety and Certifications Manager, Harbour City Ferries Pty Ltd (Exhibit M4).

[8] An order to produce was issued on 9 January 2014 against the Respondent to produce records relating to its disciplinary practices, and on 29 January 2014, against the Applicant to produce documents relating to his employment applications and other records. Both orders were complied with.

Background

[9] The Applicant was employed from 10 July 1996 by Sydney Ferries. Upon privatisation in July 2012, his employment transferred and he worked for Harbour City Ferries Pty Ltd until his dismissal on 28 August 2013. He had commenced as a General Purpose Hand, undertaken training and became a Permanent Master in March 2011.

[10] At about 2.39 pm, 25 July 2013, the ferry Marjorie Jackson, of which the Applicant was the Master, collided with the Cabarita Wharf in the Parramatta River. The Applicant was given a blood test which proved positive for marijuana. He was suspended without pay on that day and dismissed on 28 August 2013.

[11] The dismissal letter said a passenger was injured and the matter referred to Roads and Maritime Services.

[12] The Respondent investigated the incident and a range of discussions took place with the AMOU. The Applicant confirmed that he had used marijuana the day before when he had not expected to work as he was rostered off.

[13] The Applicant was dismissed for a serious breach of the Respondent’s “Code of Conduct”, which provides a “zero tolerance” level for drugs and alcohol. He was paid five weeks pay in lieu of notice.

[14] The Applicant set out in some detail in his F3 form the circumstances of the incident and the reasons for its unfairness of the Respondent’s action. Some important points to be noted at this stage are:

(a) The Applicant is 46 years old and has no qualifications other than his marine qualification obtained working for the Respondent;

(b) The Applicant, at the time of the accident, was on “holiday relief” in which he replaced other Masters when they were on planned leave;

(c) The Applicant was not rostered to work on 24 or 25 July but had, in fact, worked on 24 July from 5.15 am to 3.20 pm. He was then called in at about 12.10 pm on 25 July 2013 to replace another Master who had called in sick.

(d) The Applicant stated that he “had smoked a marijuana cigarette at 9.30 pm - 10.00 pm on the evening of 24 July to help with the pain in his shoulder”. He said that he was given it by his son. (see also Exhibit G2 paragraph 21-22.)

(e) The Applicant had taken the Marjorie Jackson from the Balmain Shipyard stopping five times, until, at Cabarita, the vessel suddenly veered to Port. The first metal pile was pushed over.

(f) The service terminated at Rydalmere, all passengers appeared to be unaffected as they disembarked and the Applicant reported the incident to the Controlling Officers.

(g) The Applicant continued the service toward the city but was told to disembark the passengers at Drummoyne and come straight to Circular Quay where he saw Aaron Brown and Captain Noronha.

(h) He was given a drug test at about 6.00 pm which was non-negative for THC. The Applicant was immediately suspended and escorted off site

(i) In accordance with the Sydney Ferries Drug and Alcohol Procedure, the Applicant had a follow-up drug test on 9 August which was negative. The Applicant had three drug tests in the past, all of which had been negative.

(j) Whilst it is conceded that the Applicant had a marijuana cigarette the night before, there was no evidence of impairment. It is submitted that in the absence of impairment a positive test result arising from conduct outside the workplace does not provide a valid reason for termination.

[15] The Applicant submits that the dismissal was harsh, having regard to the fact that little damage or injury was caused, the lack of evidence linking the drug test to the incident, the Applicant’s employment record and the impact of the dismissal on the Applicant, whose specialised skills and experience will make it very difficult to find comparable alternative employment. Alternative lesser disciplinary action could and should have been taken by the Applicant. It is argued that this has occurred in other cases.

[16] The Respondent submits, in its F3 form, that it had acted appropriately, and in accordance with its policies.

[17] The Respondent had met with the Applicant and his union on 2 August and had “numerous representations from the union”. However, termination was considered appropriate given the Respondent’s commitment to the safety of the public and its other employees.

[18] The 2 August meeting had taken place straight after the formal report from the medical testing company had been received on 1 August by the Applicant and the Respondent. The Applicant was given a copy of the various policies of the Respondent and the laboratory report. On both 2 August and 25 July the Applicant admitted having consumed marijuana on the night of 24 July.

[19] The letter from the Respondent to the Applicant following the 2 August meeting made it clear that dismissal might be the disciplinary action taken. The Applicant was given seven days to provide further information that might persuade the Respondent not to take this action.

Protection from Unfair Dismissal

[20] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[21] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

[22] There is no dispute, and I am satisfied the Applicant has completed the minimum employment period, is below the high income threshold earning approximately $102,549 per year (Exhibit T2 paragraph 53), and is covered by an enterprise agreement the Sydney Ferries Maritime (AMOU and MUA) Enterprise Agreement 2012 [AE891796]. Consequently, I am satisfied the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[23] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[24] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[25] There is no dispute that the Applicant was dismissed and that subsections (c) and (d) do not apply.

Harsh, unjust or unreasonable

[26] Having dealt with each of s.385(a),(c)-(d) of the Act, I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

Approach of the Commission

[27] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[28] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

Overview of the Parties’ Arguments

[29] The Applicant submits the dismissal was harsh, unjust or unreasonable because:

● The dismissal was because the Applicant had allegedly breached Harbour City Ferries Code of Conduct. The Applicant challenged the appropriateness of the Code and its meaning.

● The reliability of the formal drug test was challenged arising from failures in the procedures of Medvet Science Pty Ltd who carried out the test.

● The dismissal was disproportionate to the misconduct alleged by the employer.

● There was no evidence that the Applicant was impaired or that the positive drugs test had any link to the accident with the wharf.

● Proper regard was not given to the Applicant’s record of 17 years unblemished service with Sydney Ferries and the Respondent.

● The Applicant admitted his consumption the night before of a marijuana cigarette on the day of the accident and was contrite and co-operative.

● There is no prospect of a recurrence of the incident as the Applicant now has proper pain management for his shoulder.

● There was no attack on the Applicant’s skill or ability to perform the job of Master into the future.

● The dismissal had a devastating impact on the Applicant’s financial position and career future given his specific training and experience.

● The Applicant seeks reinstatement to the position he was employed in prior to the dismissal, maintenance of the continuity of employment and restoration of lost pay.

[30] The Respondent submits the dismissal was not harsh, unjust or unreasonable because:

● The Respondent has a zero tolerance drug policy which is essential for public safety. The Applicant breached this, even though he was in a position of responsibility and leadership.

● The Applicant did not disclose that he may not have been drug free on 25 July until the results of the test came back.

● The Applicant should not have accepted the shift by telephone because he was aware that he may be in breach of the Respondent’s policies.

● The formal drug test report was received on 1 August. It meant that the Applicant was in breach of the Respondent’s Code of Conduct and Drug and Alcohol Procedure. The question of impairment is not relevant.

● The Medvet procedures were shown to be appropriate, notwithstanding extensive correspondence and discussion with the AMOU in August.

● The Respondent was provided with full procedural fairness and was put on notice of the possibility of termination.

● Dismissal was an appropriate action in the circumstances.

Incident Investigation Report

[31] The official report of the Respondent into the incident was produced by Captain Noronha and was Attachment A to his statement, Exhibit M4. I note that at page 4 he says that “the co-operation and sincerity of the Master was complimentary during the investigation and assisted in establishing the details and contributory factors in this incident”. The findings and recommendations were as follows:

“D) FINDINGS

The investigation identifies the following findings that led to the vessel colliding with the pylon:

1. The approach and berthing speed of the Marjorie Jackson was greater than the Master.

2. The approach speed of greater than 18 knots and subsequent berthing caused the vessel head to swing to port when astern propulsion was applied.

3. The Master acknowledged an error of judgement whilst changing from the accepted modes (vector and walk-on) of handling such a vessel during the final approaches to, and berthing of, the vessel at the wharf.

4. The two approaches viz. Vector and Walk-on for berthing RiverCat vessels included in the practical training for Trainee Masters is not reflected in the associated training documentation. Also, the VOM makes no reference to these approaches.

5. The result of the post incident drug testing of the Master returned a positive result for Cannabis.

E) OBSERVATIONS

In addition to the above observations are made relating to the incident:

1. Whilst the current VOM provides guidance on some of the handling characteristics of the RiverCat vessel, elaborate details on the location of the Schottel leg at various hand wheel settings is not reflected, as appropriately described in the 2006 OSTI investigation report (Ferry safety Investigation Report - Collision between Sydney Ferries’ Betty Cuthbert and two Moored Vessels - Fern Bay - 11 January 2006)

2. Mindful that all incident categories require immediate notification, the first notification of the incident was received approximately half-hour after the occurrence.

F) CONCLUSIONS

After assessing all the available information, the investigation concludes that an error of judgement manoeuvring the vessel coupled with the application of astern propulsion at excessive speed when approaching and berthing, resulted in the vessel swinging to port and the Master losing control of the vessel in the manoeuvre.

G) CORRECTIVE ACTIONS

In order to minimise the recurrence of such an incident the following is recommended:

1. Procedures when handling a RiverCat as outlined in the VOM at Section 4.2.4 - Hand Wheel Mode, must be re-enforced with all Masters with special attention to the tendency of the vessel’s bow to swing to port when shifting from ahead to astern propulsion and the increased probability of this to occur in higher speeds. (Aaron Brown-River Service Manager)

2. A review be undertaken of approach and berthing speeds for all RiverCat vessels, to minimise the above effect. (Aaron Brown-River Service Manager)

3. Documented procedures and detailed description of adopted handling methods viz. “vector mode” and “walk-on mode” for RiverCat vessels should developed and included in the relevant manuals. Such procedures should include pictorial representation of the steering and propulsion settings, similar to those reflected in the OTSI investigation report of Jan 2006. (Aaron Brown-River Service Manager)

4. A review be undertaken of the current training regime associated with RiverCat vessels ensuring the following is included:

a) Appropriateness and duration of current initial training;

b) Inclusion of abovementioned documented procedures and detailed description of handling methods referenced;

c) Detailed assessment criteria for various handling methods;

d) Periodic peer review for all Masters, including random analysis of navigational recording devices;

e) Determine appropriate approach speeds and handling practices for all wharves serviced by RiverCat vessels.

f) A support program following incidents or analysis of stated recording devices. (Paul Jams - Learning and Development Manager).

5. A review is undertaken of the current post-incident procedures relating to the decision making process for the relocation of a vessel with existing crew. (Matt Lloyd - Outer Harbour Service Manager / Glenn Young - General Manager-Operations & Asset Management)

6. Procedural initial incident notification should be reiterated to all Masters. (Glenn Young - General Manager - Operations & Asset Management )

[32] Aaron Brown gave evidence that the recommendations of the report were being implemented. (Transcript PN578 - 596)

[33] I will now consider each of the criteria contained in s.387 of the Act separately.

Valid Reason - s.387(a)

[34] In Container Terminals Australia Limited v Toby [2000] Print S8434, a Full Bench said ‘In our view, the consideration of whether there was a valid reason for termination is a separate issue from the determination of whether a termination was harsh, unjust or unreasonable’.

[35] Northrop J in Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 said:

“In its context in s.170DE(1), the adjective “valid” should be given the meaning of sound, defensible or well founded. A reason which is capricious, fanciful, spiteful or prejudiced could never be a valid reason for the purposes of s.170DE(1). At the same time the reason must be valid in the context of the employee’s capacity or conduct, or based upon the operational requirements of the employer’s business. Further, in considering whether a reason is valid, it must be remembered that the requirement applies in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. The provisions must ‘be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly ...”

[36] In Parmalat Food Products Pty Ltd v Wililo, (2011) FWAFB 1166, the Full Bench held:

“The existence of a valid reason is a very important consideration in any unfair dismissal case. The absence of a valid reason will almost invariably render the termination unfair. The finding of a valid reason is a very important consideration in establishing the fairness of a termination. Having found a valid reason for termination amounting to serious misconduct and compliance with the statutory requirements for procedural fairness it would only be if significant mitigating factors are present that a conclusion of harshness is open.”

[37] The Applicant described the sudden movement of the Marjorie Jackson in his statement (Exhibit G2 paragraph 5). It appears that one woman knocked her head but did not request medical aid. This was not contested by the Respondent, although there is mention of injury to a passenger in the termination letter. This is confirmed by the Incident Investigation Report quoted in [31] above.

[38] The incident report (Attachment A to the Statement of Captain Noronha (Exhibit M4, page 2) stated that “no reports of injuries to passengers or crew were received”.

[39] The Applicant reported the incident at Rydalmere by contacting the Control Officer. Some issue was taken as to whether that was appropriate. (Transcript PN152 - 154, PN988 - 991) However, I find that the Applicant took reasonable steps to report the incident. Indeed it is clear that absent the drug test the incident would have led to some future monitoring for the Applicant and training, but no other action. (See evidence of Captain Noronha, PN1129 - 1132)

[40] The original drug test was taken at about 6pm on 25 July. It was an indicative test but was positive for cannabis. The urine sample was then sent for laboratory testing. Medvet Science Pty Ltd had the contract to do this. However, the analysis was carried out by Racing Analytical Services Ltd at Flemington in Victoria. Their report, dated 31 July 2013, was attachment 2 to the Applicant’s witness statement (Exhibit G2). It shows a positive reading of 26 (micrograms) ug/litre compared to the Australian standard of 15 (micrograms) ug/litre for Cannabinoids. It is this report that is the reason for the dismissal.

[41] From 25 July until the dismissal on 28 August the Applicant was suspended without pay. There were numerous exchanges of correspondence with the AMOU during this period. The AMOU raised a number of issues about the testing process, which I deal with later, and the employer’s possible response. Notwithstanding, the Respondent issued the termination letter on 28 August.

[42] Inter alia the letter said:

“As you know Harbour City Ferries Code of Conduct has a “zero” tolerance for drugs and alcohol. It specifically states that:

18.1 All employees must have a zero content (regarded as less than 0.02g of alcohol per 100 ml of blood and be free from the presence of other drugs whilst at work.

18.2 States that Marijuana is a drug subject to testing.

We have now carefully considered this matter, conducting an investigation; met with you, considered representations on your behalf and provided you with additional information as requested.

Following the chain of events outlined above, we have now concluded that you have breached Harbour City Ferries Code of Conduct. Further, we consider that this breach to be serious, causing considerable danger to the public, your crew and yourself and accordingly it is considered unacceptable.”

Harbour City Ferries Policies

[43] The Applicant was dismissed because he was in breach of the Respondent’s policies in a way which the employer considered incompatible with continuation of his employment. Some of these policies were inherited from Sydney Ferries prior to privatisation but were continued by the Respondent. They were given to the Applicant and the AMOU at the meeting on 2 August and were debated extensively. They were attached to the Applicant’s witness statement (Exhibit G2) at Attachment 2.

[44] The “Drug and Alcohol Procedure” is a Sydney Ferries document. It provides for the two-staff test procedures used in this case. It also:

● it appoints Medvet as the “authorised officers” for testing;

● outlines the random testing system;

● explains how urine testing is carried out;

● requires testing after any accident;

● provides for disciplinary action to be taken where there is a positive test.

[45] The “Discipline Procedure” is also a Sydney Ferries document. It contains the wording concerning the use of drugs contained in the dismissal letter. As is usual in such policies, the type of disciplinary action to be taken depends on a range of factors but can include warnings, suspension, reduction in pay or grade or dismissal. It is specified that an employee should expect no more than three warnings.

[46] The “Code of Conduct” is a Harbour City Ferries document. It contains a separate paragraph on Drugs and Alcohol. (Paragraph 18) It contains the same words as in the dismissal. It specifically provides for testing for cannabis metabolites. The urine testing regime is also provided for. I should say, at this stage, that there was no issue in this case about the appropriateness of urine testing or the overall testing system. The Applicant argued however, that the result may not have been accurate because of a breakdown in the tester’s procedures (see below). Finally, the Code provides:

“18.3 Employees must not commence or continue to work if they are affected by alcohol or other drugs”.

[47] As to the practical meaning of “be free from the presence of other drugs whilst at work”, discussion took place during the proceedings. It was accepted by the parties that this means a reading in excess of the Australian standard for a substance.

[48] This is made clear in the “Sydney Ferries Drug and Alcohol Policy”, (Exhibit G4) which is still applied by the Respondent which stated:

“4. Definitions

4.1 “Drugs” are defined as substances or medications capable of causing dependency, alteration of mood or impaired judgement, concentration or coordination. These include but are not limited to:

(i) illegal drugs;

(ii) prescribed psychoactive mediations;

(iii) prescription medications for which no medical authorisation has been given; and

(iv) medications or ‘over-the-counter’ substances which are used contrary to the manufacturer’s instructions or recommended dosage.

4.2 “Drug free” means any level of drug less than the cut-off levels for each class of drug stipulated by Australian Standard AS/NZS 4308:2008: Procedures for Specimen Collection and the Detection and Quantitation of Drugs of Abuse in Urine.

4.3 “Alcohol free” means a blood alcohol concentration of less than 0.02 per cent (as defined by section 3 of the Passenger Transport (Drug and Alcohol Testing) Regulation 2004).”

[49] It is clear that under the Respondent’s policies a breach of the Code of Conduct results in disciplinary action to be implemented in accordance with that Procedure and the requirements of the Act. There are a number of options for the Respondent to consider, however.

[50] The Applicant submits that there is no valid reason because the test result was an isolated incident by the Applicant and there was no evidence of impairment and hence no danger to the public. A one-off breach of policy, it is argued, is not sufficient to justify dismissal.

[51] The Respondent submits that the breach of the Code and the Drug and Alcohol Procedure constitutes a valid reason for dismissal, given the Applicant’s position of responsibility. The policies were well known to the Applicant and resulted from negotiations with the AMOU. (See: Statement of Aaron Brown, Exhibit M1 at [15] to [17])

[52] The Respondent relies on the fact that the Applicant did not disclose that he had smoked a marijuana cigarette until advised of the positive drug test. See statement of Aaron Brown (Exhibit M1 [7] to [13]). Also, Statement of Captain Noronha (Exhibit M4 [7]). (Transcript PN172 - 174)

[53] Furthermore, the Respondent submits that the Applicant was not dismissed because of impairment and a determination as to impairment is not necessary to determine the application.

The Drug Testing System Procedure

[54] As I said earlier, the Applicant and the AMOU did not attack the design of the drug testing system, but rather its implementation. This was stated in the days after the accident, at the 2 August meeting, in correspondence which was attached to Exhibit G2 and at the hearing.

[55] Questions were raised about:

● the competence of the collectors;

● the reliability and accuracy of the equipment;

● possible contamination of the sample;

● whether there had been a breach of security in the transport of the sample to the Flemington laboratory.

[56] The Respondent and Medvet Pty Ltd responded to all of these issues (see attachment 4 to Exhibit G2). It was conceded that during transit of the sample the closing seal of the satchel slightly detached from the locking mechanism. The seal was still intact however. It was denied that there was any chance of the sample being tampered with.

[57] Questions were raised about whether the collector, Mr Jedrejizyk had kept the sample secure over the weekend of 27-28 July prior to its delivery to Flemington.

[58] Dr Pidd, the expert witness, called by the Applicant observed (see Exhibit G3):

● the collector had not undertaken AQTF training;

● the reading was in the “relatively low non-negative range”;

● “urinalysis is not recommended as a diagnostic tool to identify workplace safety risk from cannabis use” [8] (Also Transcript PN271);

● the Australian standard for cannabis metabolites in urine is not a measure of intoxication or impairment;

● it is unlikely Mr Tom’s ability to work safely would have been impaired. [11];

● typically, the effects of cannabis last 2 - 5 hours after consumption [12] (Also Transcript PN258 - 263);

● Dr Pidd’s statement was supported by 14 papers/articles which were tendered on the effects of marijuana, including its use in pain management.

[59] The Applicant submits that there was not strict compliance with the AS/NZS 4038:2008 in the testing procedure because of the lack of training of the collector, questions about the chain of custody of the sample and the possible dilution of the sample. The Respondent disregarded its own policies when it did not arrange a second urine test when the issues around the testing process had been raised by the AMOU. In any event, a second test did take place on 9 August and it was negative.

[60] Mr Korkoneas, on behalf of Medvet, in his statement (Exhibit M3) and in cross-examination dealt with the various issues outlined above which criticised the testing process. He pointed out that the collector’s certificate of attainment had not been issued at the time of the test, but that his training had been completed. Despite some issues with the outer seal of the satchel, the crucial fact was that the inner sealed bag with the sample had not been tampered with.

Finding as to Valid Reason

[61] I have carefully considered the evidence provided with respect to the incident, the application of the Respondent’s policies and the testing process and I have come to the view that there was a valid reason for the Respondent to dismiss the Applicant.

[62] There was undoubtedly a breach of the Respondent’s Drug and Alcohol Policies and Procedures. This was because there was a reading for Cannabinoids in excess of the Australian standard. The Drug and Alcohol Policies and Procedures themselves were not attacked by the applicant. The Applicant and the AMOU were well aware of the policy. The Respondent and its predecessor, Sydney Ferries were correct in having stringent standards for alcohol and drug use to protect employees and the travelling public. I accept that there was no evidence of impairment. As Dr Pidd said, the negative reading, certainly did not indicate impairment.

[63] I accept also that there was no evidence of a fault in the testing procedures used by Medvet Science Pty Ltd which would justify setting aside the test result. Although some issues of potential concern were raised with the training of staff and the potential breakdown of the custody chain, I was satisfied with the documentary responses of Medvet and the evidence of Mr Korkoneas. The crucial point is that there was no evidence the sample was tampered with.

[64] In order to comply with the Respondent’s policies, the Applicant should have advised the Respondent prior to accepting the shift on 25 July that he had consumed a marijuana cigarette.

[65] The fact that there was a valid reason to dismiss because of a breach of drug and alcohol policies is not the end of the matter, however. I am required to consider the other issues raised in s.387 and weigh all of the factors to determine whether the dismissal was harsh, unjust or unreasonable.

[66] It is worthwhile quoting from B, C and D v Australian Postal Corporation T/A Australia Post ([2013] FWCFB 6191):

“[13] The list of matters specified in s.170CG(3) has been adjusted by amendment, but the basic structure for grounding the unfair dismissal remedy – a finding that the dismissal was “harsh, unjust or unreasonable”, with the existence of a “valid reason” being only one of a number of matters that the Commission was required to consider - has remained unchanged through successive amendments to the WR Act and in the current unfair dismissal regime in the FW Act. Section 387 of the FW Act contains the current incarnation of the list of considerations, first introduced in 1996 in s.170CG(3) of the IR Act 1988, for determining whether a dismissal is “harsh, unjust or unreasonable”.

. . .

[20] Northrop J’s reasoning anticipated the reasoning of the High Court in Victoria v Commonwealth – that s.170DE(2) by its operation could render invalid a reason that would otherwise have been a valid reason. The fact that some dismissals are “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” means that the class of dismissals that are “harsh, unjust or unreasonable” is greater than the class of dismissals where there is no “valid reason” for the dismissal.

[21] Section 387 specifies a range of matters that must be considered in each case. Section 387(h) requires consideration of “any other matters that FWA considers relevant”. In any given case, there will be a range of matters, beyond those specified in s.387(a) to (g), that rationally bear upon whether the dismissal is “harsh, unjust or unreasonable” and thus are “relevant matters” that must be considered pursuant to s.387(h).

[22] Often it will not make any difference to the ultimate outcome whether a particular circumstance is considered pursuant to s.387(a) in determining whether there is a valid reason, or as a relevant matter pursuant to s.387(h), leading to the ultimate determination of whether the dismissal was “harsh, unjust or unreasonable”. However, in some cases it may matter greatly. That will tend to be so when the particular misconduct, shorn of the personal circumstances of the employee and the broader context beyond the particular acts or omissions that are said to constitute the misconduct, is clearly a matter that a reasonable employer is entitled to take seriously. This is such a case.

. . .

[48] Thus, a finding that an employee has failed to comply with policies and procedures does not mean that a dismissal is not harsh, unjust or unreasonable. The Commission has consistently applied the proposition that instant dismissal of an employee for non-compliance with his or her employer’s policies may, in the particular circumstances of an individual case, be harsh, unjust and unreasonable: Kangan Batman TAFE v Hart [2005] (PR958003), Ross VP, Kaufman SDP and Foggo C at para [51]; Fearnley v Tenix Defence Systems Pty Ltd [2000] Print S6238, Ross VP, Polites SDP and Smith C (Fearnley) at [61]); Atfield v Jupiters Ltd (2003) 124 IR 217 (Jupiters) at [12]-[13].

. . .

[58] Reaching an overall determination of whether a given dismissal was “harsh, unjust or unreasonable” notwithstanding the existence of a “valid reason” involves a weighing process. The Commission is required to consider all of the circumstances of the case, having particular regard to the matters specified in s.387, and then weigh:

(i) the gravity of the misconduct and other circumstances weighing in favour of the dismissal not being harsh, unjust or unreasonable;

against

(ii) the mitigating circumstances and other relevant matters that may properly be brought to account as weighing against a finding that dismissal was a fair and proportionate response to the particular misconduct.

[59] It is in that weighing that the Commission gives effect to a ‘fair go all round’.”

Notification of a Valid Reason - s.387(b)

[67] Notification of a valid reason for termination must be given to an employee protected from unfair dismissal before the decision is made, Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41] in explicit terms, Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137, 151 and in plain and clear terms, Presvisic v Australian Quarantine Inspection Services Print Q3730. In Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 a Full Bench of the Australian Industrial Relations Commission dealing with similar provision of the Workplace Relations Act 1996 stated the following:

“[73] As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified. Section 170(3)(b) and (c) would have very little (if any) practical effect if it was sufficient to notify employees and give them an opportunity to respond after a decision had been taken to terminate their employment. Much like shutting the stable door after the horse has bolted.”   Ibid at 151.

[68] As Mr Gibian conceded, there was no doubt that the Applicant was notified of the reason for his dismissal. A month went by between the incident and the dismissal during which time extensive representations were made by the AMOU. Mr Moy put the AMOU on notice that dismissal was a real possibility and gave them notice that a final decision was about to be taken.

Opportunity to Respond - s.387(c)

[69] An employee protected from unfair dismissal must be provided with an opportunity to respond to any reason for dismissal relating to the conduct or capacity of the person. This criterion is to be applied in a common sense way to ensure the employee is treated fairly and should not be burdened with formality RMIT v Asher (2010) 194 IR 1, 14-15.

[70] Given the process described above, there is no doubt the Applicant had an opportunity to respond to the case against him.

Unreasonable refusal by the employer to allow a support person - s.387(d)

[71] Where an employee protected from unfair dismissal has requested a support person be present to assist in discussions relating to the dismissal, the employer should not unreasonably refuse that person being present.

[72] The evidence was that the Applicant did not take up the offer of a support person on the day of the incident. However, thereafter, the AMOU was involved in all discussions.

Warnings regarding unsatisfactory performance - s.387(e)

[73] This is not in issue as the dismissal was for misconduct and breach of policies.

Impact of the size of the Respondent on procedures followed - s.387(f)

[74] The Respondent is a large, well resourced employer. I find that the size of the Respondent’s enterprise did not impact on the procedures followed in effecting the dismissal.

Absence of dedicated human resources management specialist/expertise on procedures

followed - s.387(g)

[75] The Respondent had human resources specialists involved in the process as well as a range of technical advice.

Any other matter that the FWC considers relevant

[76] Section387(h) allows the Commission to consider any other matters it considers relevant. These must be considered in the context of the object of Part 3 - 2 of the Act contained in s.381(2) to “ensure that a ‘fair go all round’ is accorded to both the employer and the employee concerned”.

[77] In the circumstances of this case, I find that the Respondent gave insufficient weight in deciding to dismiss the Applicant to the following:

(a) The Applicant had 17 years satisfactory service with the Respondent and its predecessor. Contrary to the submission of the Respondent, I am of the view that all of that service must be taken into account, not just service since privatisation. The Applicant continued to do the same job and should not be disadvantaged because of a New South Wales Government decision to privatise the ferry service.

(b) The evidence was consistent with the Applicant’s account that he had smoked one marijuana cigarette because of the pain in his shoulder. The Respondent attempted to make something of the fact that his injury had not been reported. However, the medical report in Attachment 1 to the Applicant’s statement (Exhibit G2) was not challenged. (See Transcript PN102 - 106)

(c) There was no evidence the Applicant is a drug user. He had been tested previously three times in his career and each test had been negative. The further test on 9 August was also negative.

(d) As I have said before, there is no evidence that the positive drug test is proof of impairment.

(e) There is no evidence of a link between the drug test and the accident. Indeed, the Incident Report which is dealt with in detail at [31] above analyses the operational issues and boat performance issues that caused the accident. The recommendations go to changed practices and training for masters. There had been similar incidents with other ferries. (see Exhibits G7, G8 and G9).

(f) The accident caused little damage; a post was tilted. There was no harm occasioned to passengers. Mr Brown gave the following evidence at PN614 - 615:

“PN614

Okay. So finally there is a reference to there being a woman injured. What actually happened to your knowledge?---She just hit her head on impact.

PN615

And did anything happen after that?---I got that lady’s number and I rang her the next day and made sure that she was okay and I think we actually sent flowers or something so she was okay.”

(g) The Applicant was not rostered to work on 25 July. This does not excuse his non-disclosure but he was attempting to help the Respondent by covering the shift.

(h) The Applicant reported the incident at Rydalmere about half an hour later. Neither Mr Brown nor Captain Noronha seemed critical of this reporting. In the circumstances I find that the applicant discharged his duty to report the incident in an appropriate manner and within a reasonable time-frame.

(i) The Applicant was open and co-operative with the investigation as Captain Noronha noted in his report. When confronted with a positive drug test, he admitted his fault. I find that the Applicant acted reasonably after the accident.

(j) There was no lack of confidence from Mr Brown or Captain Noronha in the Applicant’s ability to carry out the duties of Master into the future.

(k) The dismissal has had a serious impact on the Applicant. He has not found alternative work and his skills and qualifications will not translate easily to other employers and industries.

(l) There were a number of sanctions short of dismissal, contained in the Respondent’s discipline Procedure which could have been implemented in response to the Applicant’s breach of policy.

[78] For these reasons, and having considered each of the matters specified in s.387 notwithstanding that there was a valid reason for dismissal, I find that the applicant’s dismissal was harsh, unjust or unreasonable. Accordingly I find the applicant’s dismissal was unfair.

[79] Section 390 of the Act sets out the circumstances in which I may make an order for reinstatement or compensation:

“390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

(2) The FWC may make the order only if the person has made an application under section 394.

(3) The FWC must not order the payment of compensation to the person unless:

(a) the FWC is satisfied that reinstatement of the person is inappropriate; and

(b) the FWC considers an order for payment of compensation is appropriate in all the circumstances of the case.”

[80] I have already dealt with the issues at s.390(1)(a)–(b) above. I am satisfied the applicant was protected from unfair dismissal pursuant to s.382 of the Act and the Applicant was dismissed unfairly. Accordingly, I am required to determine whether to order the reinstatement of the Applicant or, in circumstances where reinstatement is inappropriate, an order for compensation if I am satisfied such an order is appropriate in all the circumstances.

[81] Reinstatement is the primary remedy and I can see no reason why it is inappropriate in this case.

[82] There was no issue raised about the Applicant’s record or capacity to carry out the duties of Master in the future. There was no difficulty raised by Mr Brown or Captain Noronha about the Applicant’s ability to become part of the ferry crew again. I am satisfied that the Applicant has “learnt his lesson”. His demeanour and conduct during the investigation and the hearing supports this view. As well, the evidence was that he now has alternative pain management medication. I am satisfied that the harmony of the Respondent’s workforce will not be disrupted by the Applicant’s return.

Conclusion

[83] I am satisfied that the Applicant was protected from unfair dismissal, that the dismissal was unfair and a remedy of reinstatement to the Applicant’s former position is appropriate. The Applicant claims maintenance of continuity of employment and restitution of lost wages. I find that the former is appropriate, but that the Applicant should suffer some penalty because of his breach of policy. The Applicant has not been paid since his suspension on 25 July 2013, apart from five weeks pay in lieu of notice. For practical reasons, that payment should stand but no further restitution should be made.

[84] The reinstatement will apply from Tuesday 22 April 2014; that is after the Easter public holidays.

[85] In accordance with s.381(2) of the Act, I am further satisfied that each party has been accorded a ‘fair go all round’.

[86] An order [PR549780] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

M. Gibian of counsel with J. Wydell for the Applicant.

D. Moy for the Respondent.

Hearing details:

2014

Sydney:

February 13, 14

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<Price code C, PR549430>