Toms v Harbour City Ferries Pty Limited

The applicant, a ferry master employed by the respondent, was dismissed after being found to have breached the respondent's drug policy by smoking marijuana before reporting for duty. The applicant brought unfair dismissal proceedings before the Fair Work Commission (FWC). The Deputy President of the FWC found the dismissal to be harsh, unjust or unreasonable and ordered reinstatement, but this decision was reversed by a Full Bench of the FWC. The applicant sought judicial review of the Full Bench’s decision. The central legal issue was whether the Full Bench's decision was affected by jurisdictional error.

The Full Bench had considered the breach of the drug policy to be a valid reason for dismissal. However, the Full Bench disagreed with the Deputy President’s view that the absence of proven impairment from the drug use was relevant to the fairness of the dismissal. The Full Bench considered the breach of the drug policy, which was central to public safety, to be the most determinative factor. The Full Bench concluded that the Deputy President had erred in considering other factors that did not address the core issue of the breach of the drug policy. The Full Bench’s analysis focused on whether the dismissal was harsh, unjust or unreasonable, and it found that the Deputy President had made an error in his reasoning. The Full Bench’s decision was based on a proper examination of the relevant factors and a correct understanding of its jurisdiction.

The Full Bench's decision was not affected by jurisdictional error. It correctly identified and addressed the core issue of whether the dismissal was harsh, unjust or unreasonable. The Full Bench’s reasoning was consistent with its jurisdiction under the Fair Work Act 2009 (Cth), and it properly exercised its appellate function by reviewing the Deputy President’s decision.

The Full Bench dismissed the application for reinstatement. The Full Bench's decision was that the dismissal was not harsh, unjust or unreasonable, and therefore, the order for reinstatement was quashed. The Full Bench’s decision was based on a thorough examination of the relevant factors and a correct application of the law.