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I hate to be the bearer of bad news, but the Fair Work Commission has reached another decision which will infuriate many employers.

In a recent decision, Commission Deputy President Jeff Lawrence has reinstated a ferry master who was fired after crashing a ferry into a wharf and admitting he had smoked marijuana the night before.

The employer, Harbour City Ferries, had what many HR practitioners strongly endorse: a stringent, clear and fully-enforceable zero tolerance drug and alcohol policy. Yet this wasn’t enough to protect the safety-focussed employer from being forced to re-employ their fired ferry master.

According to Deputy President Lawrence, the employer did actually have a valid reason for dismissing the employee. The Deputy President even went on to say that the employer was ‘correct in having stringent standards for alcohol and drug use to protect employees and the travelling public’ and, further, that the ex-employee’s criticisms of the drug testing procedure were not valid.

In fact, when the Deputy President considered the various factors set out in the Fair Work Act for determining whether a dismissal is ‘harsh, unjust, or unreasonable’, he found the employer had followed a perfectly fair and reasonable dismissal process. So far so good, right?

Unfortunately, the Deputy President then reached the very last of those factors (found in s387(h) of the Act) which allows the Commission to consider ‘any other matters that the FWC considers relevant’. Wondering what the Commission thought was relevant in this particular case? Here’s some of the Deputy President’s list:

  • > The employee had completed 17 years service
  • > He’d only smoked one joint to help with shoulder pain
  • > there was no actual evidence he was impaired at the time of the crash, or that there was a link between his illegal drug use and the crash
  • > The crash only caused minor damage
  • He wasn’t meant to work on the day of the crash
  • > He cooperated with the investigation
  • > He couldn’t find another job after being sacked

I’m not sure about you, but I’d prefer that my local ferry (or bus, or train or tram) operator was free to fire employees who turn up to work after smoking illegal drugs and then crash my ferry into a wharf. In this regard, I must respectfully disagree with the Fair Work Commission’s decision in this unfortunate case.

Published: Friday 2 May 2014

Read article on Switzer News

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