By Ross Levin, Partner, Malcolm Davis, Partner, Adam Lunn, Partner and Lisa Anaf, Partner
Employers generally have a non-delegable duty in their activities, to ensure the health and safety of their employees and the public generally. Many employers have drug testing regimes in place to identify employees who may be placing themselves and others at risk.
When such a test comes back positive to the use of an illicit substance, for example, can the employer terminate the employee’s employment for a breach of that policy, without the termination being found to be “unfair”? Can this be the case, even where there is no evidence that the drug has impaired the employee’s performance at work?
Recently, in Toms v Harbour City Ferries and the Fair Work Commission, a Full Court of the Federal Court of Australia endorsed an earlier decision that an employer was well within its rights to maintain a “zero tolerance” drug and alcohol policy. This policy resulted in the termination of employment of an employee who had tested positive to drug usage after a mandatory drug test.
In this case, the employee was a ferry master, who misjudged an approach to a wharf and crashed his ferry into a pylon. In accordance with the employer’s policy, the employee underwent a drug test which returned a positive reading for cannabis usage. The employee had been engaged with the employer for 17 years.
The employee admitted that he had smoked marijuana on the previous evening to assist him with shoulder pain and only came to work on that day, when he had previously been rostered off duty, to replace another employee.
As a result, and after further investigation, the employee’s employment was terminated with the employee being given five weeks’ pay in lieu of notice.
The employer had statutory obligations to the public and it was an offence under legislation for some employees to operate ferries whilst under the influence of alcohol and some drugs.
An unfair dismissal claim was filed by the employee and he succeeded at first instance in the Fair Work Commission in having his employment reinstated. Leave was granted for the matter to be appealed to a Full Bench of the Fair Work Commission on the basis that it was in the public interest to do so.
The Full Bench quashed the earlier decision. In summary, the Full Bench found that employer’s policy about drug and alcohol use was highly relevant to the decision which was made. The absence of proven impairment of the employee, which was taken into account by the Commission at first instance, was not relevant. The Full Bench also noted that there were questions about the accuracy of urine testing for drugs, but that this in itself did not detract from the fact the employer had a clear duty to ensure that its ferry drivers were drug free, and that it had an appropriate policy in place which the employee had breached.
The matter was taken on appeal to a Full Court of the Federal Court which quashed the employee’s appeal, finding that there was no error in the Full Bench’s decision.
Although this decision was of an appellate nature, dealing largely with jurisdictional issues, it showed that the Full Bench was not in error when making its findings i.e. that a breach of an important policy could justify a termination of employment, and was not unfair.
While this case, as with others, turned on its own facts, the decision demonstrates that where employers have broader duties to their employees and the public at large to maintain safety, that the courts will be supportive of decisions made by employers to meet those duties.
Noting the controversy that abounds in relation to workplace drug testing, employers are encouraged to ensure that they have robust drug and alcohol testing policies and procedures in place.