Harbour City Ferries Pty Ltd v Mr Christopher Toms  FWCFB 6249
While the Harbour City Ferries case is not a prosecution under health and safety legislation, it is a decision that describes important principles in the context of health and safety. The case looks at the principles that apply to terminating employees’ employment for breaches of health and safety requirements, in this case breaches of drug and alcohol policies.
Keywords: Unfair dismissal; drugs and alcohol; reinstatement
Mr Toms was a Master who worked with Harbour City Ferries.
At the time of the accident Mr Toms was on holiday relief and could be called on to replace other Masters who were on planned leave.
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 Harbour City called him to replace a Master who was on sick leave. Mr Toms did not refuse the shift because of any drug or alcohol intake.
While Mr Toms was working as Master of a ferry, an accident occurred. Harbour City's enquiry found that Mr Toms lost control of the vessel because of an error of judgement in manoeuvring the vessel and excessive speed in approaching and berthing.
Following the accident Mr Toms did not immediately reveal that he might have evidence of drug use in his system.
Mr Toms was tested for drugs and alcohol, and the test was positive.
There was no evidence Mr Toms was impaired by drug consumption.
Mr Toms’ employment was terminated, and he bought an unfair dismissal claim. In the first hearing, the Commission determined Mr Toms had breached Harbour City’s drugs and alcohol policy and there was a valid reason to terminate his employment, however the termination was harsh, unjust or unreasonable and Mr Toms was reinstated.
Harbour City appealed the decision.
In deciding to overturn the initial dismissal and reinstate Mr Toms, the Commission considered a range of factors. While acknowledging breach of drug and alcohol policy gave Harbour City a valid reason to terminate Mr Toms’ employment, that right still has to be exercised fairly. The Commission considered:
Mr Toms had over 17 years satisfactory service with Harbour City and its predecessor;
Mr Toms’ marijuana use arose from the need to sedate a painful shoulder;
Mr Toms’ previous three drug tests had all been negative;
There was no impairment established;
There was no link between the drug test and the accident;
The accident caused little damage;
Mr Toms was assisting Harbour City by covering their shift;
The accident was reported appropriately and in a timely fashion;
Mr Toms was open and co-operative with the investigation;
When presented with a positive drug test Mr Toms admitted his fault and did so in a reasonable time frame after the accident;
Other senior employees continued to have confidence in Mr Toms after the accident;
Mr Toms had not been able to find alternate work;
Mr Toms’ skills and qualifications did not translate easily to other employment and,
There were other sanctions short of dismissal which could have been more reasonably implemented in relation to the breach of policy.
However, on appeal the Full Bench of the Commission said:
The mitigating factors referred to and relied on … 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 Full Bench of the Commission also emphasised the underlying importance of the drug and alcohol policy in this case, saying:
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. 
Having considered all the factors, the Full Bench overturned the original decision, and upheld the termination.
Whatever your views on the merits or otherwise of either decision, the important point to recognise in this case is that breaches of health and safety policies, while usually seen as serious misconduct, do not give an automatic right to terminate an employee’s employment.
Breaches of health and safety procedures are generally considered a valid reason for terminating employees’ employment, having a valid reason – on its own – is not enough.
That right must still be exercised fairly.
There are a range of factors that can impact on the validity of terminating an employee’s employment for alleged breaches of health and safety policies. For example, if an employer has previously condoned behaviour it makes it more difficult to justify termination. In other cases, it has been successfully argued, that the safety procedures were too complicated for employees to follow, and the termination is overturned.
There have also been cases where an employer’s own incident investigation has been used against them in unfair dismissal proceedings. In these cases, the health and safety investigation makes a range of findings against the organisation, and the organisation’s failure to implement or enforce their own procedures. These types of findings, i.e. it is the organisation’s fault not the employees, can also be used to argue against an unfair dismissal.
You can read more articles in the Safety Case(s) series HERE.
This article represents a general discussion about legal principles. It is not specific advice, and you should seek your own legal advice in relation to your specific circumstances.