Pot-smoking ferry driver wins back job in unfair dismissal case

A Sydney ferry master has regained his job in an unfair dismissal case, despite failing a drug test he was made to take after he collided with the Cabarita Wharf.

Harbour City Ferries dismissed ship master Chris Toms after he tested positive for marijuana last year, breaching the company’s zero-tolerance drug policy.

But the Fair Work Commission found the dismissal was harsh, given Toms’ personal circumstances of, and disproportionate to the misconduct of the employer.

Workplace law expert Peter Vitale told SmartCompany it was an “unfortunate decision” by the FWC, as the employer was trying to abide by workplace health and safety regulations.

“I think on balance it’s an unfortunate decision because it doesn’t offer support to employers who are attempting to meet their obligations under work health and safety laws,” he says.

“It makes it very difficult when the WorkCover or WorkSafe authorities are saying these are the things you need to do to meet your duty under that Act and then the FWC prevents employers from giving any real affect to those laws.”

Toms had worked on Sydney ferries since 1996 and admitted to smoking marijuana to relieve shoulder pain with his son the night before the accident between 9:30pm and 10pm on July 24 last year.

However at the time of the incident he had been working in a “holiday relief” role, in which he replaced other ferry masters who were on planned leave and he had not expected to work the following day.

Toms was called into work at lunchtime on July 25 to replace another ferry master who was sick.

When approaching the Cabarita Wharf, the ferry veered to the side and hit a metal pile, but upon disembarking at Rydalmere, all passengers appeared unaffected and Toms reported the incident to controlling officers.

Toms was drug tested later that evening, following which he was suspended.

The ferry master, with the assistance of the Australian Maritime Officers Union, argued the dismissal was unfair because there was “no evidence of impairment” in his performance.

An expert witness also said urine drug tests are not the most accurate way to measure cannabis and the amount in his system was unlikely to impact him.

With Toms’ 17-year history on the job, it was argued a one-off incident did not justify dismissal.

It was also said the ferry master’s specialised skills and experience would make it very difficult to find comparable alternative employment and that lesser alternative disciplinary action should have been taken instead.

Harbour City Ferries argued it had acted appropriately in its action, given its commitment to the safety of the public and other employees.

It also argued Toms’ position of responsibility made the breach more serious and he did not report the incident as quickly as required.

The accident was determined to have been caused when Toms approached the wharf too quickly, causing the ferry to swing.

Commissioner Jeff Lawrence found Harbour City Ferries did have a valid reason to dismiss Toms given the breach of the no-tolerance drug policy, but deemed the dismissal was too harsh.

“I find that [Harbour City Ferries] gave insufficient weight in deciding to dismiss the applicant…” Lawrence said in his judgment.

Lawrence found there had been no other evidence of drug use in Toms’ career, no link between the drug test and the accident, that there was little damage caused by the accident, that Toms was open and co-operative in the investigation, that he had been unable to find other employment and because he had not lost the confidence of other staff, the dismissal was harsh, unjust or unreasonable.

Vitale says it was issues related to the ferry master’s own personal circumstances which saved him in this case.

“This is one of those cases which make it a bit of a nightmare for those who are responsible for health and safety in an organisation … but it should not be considered as setting a precedent,” he says.

“For employers it shows there is no such thing as a guaranteed winner in the unfair dismissal environment. It’s important when you are considering taking disciplinary action to have at least some regard to an employee’s personal circumstances.”