[2014] FWCFB 6249


Fair Work Act 2009

s.604 - Appeal of decisions

Harbour City Ferries Pty Ltd
Mr Christopher Toms



Appeal against decision [2014] FWC 2327 and order PR549780 of Deputy President Lawrence at Sydney on 16 April 2014 in matter number U2013/13687.

[1] Harbour City Ferries Pty Ltd (Harbour City) has appealed Deputy President Lawrence's decision of 16 April 2014 1 in which Deputy President Lawrence found that there was a valid reason for the termination of Mr Toms’ employment but, notwithstanding that valid reason, the dismissal of Mr Toms was harsh, unjust or unreasonable. He ordered the reinstatement of Mr Toms to the employment of Harbour City from 22 April 2014.

[2] Mr Toms was dismissed from employment for a breach of the Sydney Ferries Drug and Alcohol Policy (Policy) and Code of Conduct. The applicability of Harbour City’s testing regime for drugs and alcohol was not challenged by Mr Toms or Harbour City.

[3] We heard this application in Sydney on 24 July 2014. Mr Y Shariff of Counsel appeared for Harbour City with Ms R Farrar of Corrs. He relied on written submissions 2 and oral submissions in support. Mr M Gibian of Counsel with Mr J Wydell of the Australian Maritime Officers Union (AMOU) appeared for Mr Toms. He relied on written submissions3 and oral submissions in support.

[4] Paragraph 4 of the Policy is set out below.

[5] Paragraph 18.3 of the Code of Conduct is set it is below:

[6] The substance of the letter of termination dated 28 August 2013 is set out below:

[7] The Deputy President's conclusion 4 that the expression "... be free from the presence of other drugs whilst at work" was agreed between the parties to refer to a prohibition of a reading in excess of the Australian standard for a substance was not challenged at the hearing of the appeal.

[8] This Full Bench has some experience of applications involving the application and efficacy of such workplace policies. We are not persuaded that urine testing, the agreed method of drug testing at Harbour City, is a guide as to the actual presence of marijuana in an employee’s system or any impairment arising as a consequence. It is a testing system which in this case indicated past use and no present impairment.

[9] Despite our reservations concerning the usefulness of Harbour City’s policy as an effective method of drug detection, when considering leave to appeal and the merits of the appeal, we have identified and considered the misconduct of Mr Toms as his attending work in breach of the policy.


[10] At 9:30 pm on the evening of 24 July 2013 Mr Toms smoked a marijuana cigarette to assist him with pain in his shoulder. On 25 July 2013 Mr Toms was telephoned by Harbour City and asked to replace a Master who was on sick leave. At that time Mr Toms was on holiday relief during which period he replaced other Masters who were on planned leave. He did not refuse the shift on the basis of any drug or alcohol intake. On 25 July, when Mr Toms was Master of the Marjorie Jackson, an accident occurred. Following the accident Mr Toms did not immediately reveal that he might have evidence of drug use in his system.

[11] The test administered on behalf of Harbour City was positive. There is no evidence however that Mr Toms was impaired by drug consumption. Harbour City's enquiry found that Mr Toms lost control of the vessel as a result of an error of judgement in manoeuvring the vessel and excessive speed in approaching and berthing.

[12] Deputy President Lawrence found that there was a breach of the Harbour City's Policy because there was a reading for cannabinoids in excess of the Australian standard. Having a reading of that kind is a breach of the policy. The Deputy President found that there was a valid reason for the dismissal of Mr Toms by Harbour City.

[13] A recent Full Bench 5 of the Fair Work Commission (the Commission) has discussed the principles applicable to appeals from unfair dismissal applications as follows:

[14] This is the approach we have applied to our consideration of Harbour City’s appeal.

[15] In Parmalat Products Pty Ltd v Wililo 6 a Full Bench of the Commission stated the following in relation to permission to appeal in applications involving workplace occupational health and safety issues:

[16] This Full Bench is not authority for the proposition that the public interest is automatically attracted to any appeal involving workplace occupational health and safety issues. This would involve an automatic grant of permission to appeal in a large number of cases before the Commission. It must be a case by case consideration. This Full Bench also commented on applications where there was not only a valid reason for termination of employment for serious misconduct but also that there had been compliance with the requirements for procedural fairness.

(our emphasis)

[17] We have had regard to the facts of this application. The application is concerned with serious misconduct which was a valid reason for the termination of Mr Toms’ employment. The serious misconduct was the breach of an important policy by an employee at the most senior level of employment at Harbour City in a situation where there was compliance with procedural fairness.

[18] We regard this appeal as involving a consideration of matters of general importance attracting the public interest. We grant permission to appeal.

[19] It is clear that Harbour City identified Mr Toms’ misconduct as a serious breach of their Code of Conduct which provides “zero tolerance” for drugs and alcohol.

[20] Deputy President Lawrence dealt with the breach of the Code of Conduct in his decision when considering valid reason. However, we consider that there is a wider context and a higher level of seriousness involved in the misconduct of Mr Toms which was not taken into account by Deputy President Lawrence.

[21] Mr Toms was aware of the Policy and its application. He was aware when he accepted the shift as Master of the Marjorie Jackson that it was likely that he would be in breach of the Policy if tested.

[22] Mr Toms could have refused the shift because he was in breach of the Policy without specification as to the cause.

[23] Although the Deputy President found that Mr Toms cooperated with the subsequent enquiry, it is clear from the evidence that, when the accident occurred, Mr Toms did not immediately reveal that it was likely that he was in breach of the Policy.

[24] When determining that the termination of Mr Toms’ employment was harsh, unjust or unreasonable Deputy President Lawrence took into account:

[25] We consider that Mr Toms’ seniority and his very high level of responsibility are factors which attract sympathy when considering outcome, but equally those factors demand a high level of compliance with policy.

[26] In addition, Mr Toms failed to immediately inform Harbour City of the potential for a positive finding. He put off the moment of confession as long as he could. This was not taken into account by the Deputy President.

[27] 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 Marjorie Jackson are not factors relevant to the ground of misconduct identified as non-compliance with the Policy. The fact is that Harbour City required its policy complied with without discussion or variation. As an employer charged with public safety it does not want to have a discussion following an accident as to whether or not the level of drug use of one of its captains was a factor. It does not want to listen to the uninformed in the broadcasting or other communications industry talk about drug tests establishing impairment. It does not need to have a discussion with any relevant insurer, litigant or passenger’s legal representative about those issues. What it wants is obedience to the policy. Harbour City never wants to have to have the discussion.

[28] The mitigating factors referred to and relied on by Deputy President Lawrence are not mitigating factors that address the core issue, which was the serious misconduct which led to the dismissal of Mr Toms. The core issue, the valid reason for termination of Mr Tom’s employment was his deliberate disobedience, as a senior employee, of a significant policy. The Deputy President does not address Mr Tom’s failure to comply with the Policy. The only mitigating factor relevant to this issue was the use of marijuana as pain relief. Consequent upon that explanation is the decision to accept a shift while aware of the likelihood of being in breach of the Policy.


[29] For these reasons we grant permission to appeal and allow the appeal. We quash the decision of Deputy President Lawrence and dismiss Mr Tom’s application for relief pursuant to s.394 of the Fair Work Act 2009 (the Act).


 1   PR549430

 2   Exhibit Harbour City 1

 3   Exhibit Toms 1

 4   PR549430 at para 47

 5   Baker v Patrick Projects Pty Ltd 2014 FWCFB 2293 [PR549389]

 6   [2011] FWAFB 1166 at paras 18 - 19

 7   Ibid at para 24

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