[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 Act 2009

s.394—Unfair dismissal

Christopher Toms
Harbour City Ferries Pty Ltd



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:

[7] The Respondent relied on:

[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.


[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:

[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:

[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:

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:

[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:

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:

[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:

Overview of the Parties’ Arguments

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

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

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:

[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:

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

[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:

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:

[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:

[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:

[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:

[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):

[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):

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:

[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:

[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:

[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.


[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.



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

D. Moy for the Respondent.

Hearing details:



February 13, 14

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<Price code C, PR549430>