Employment Law

Fair dismissal despite strong mitigation factors

This is quite an interesting decision:

the Full Bench of the Fair Work Commission (Australia) found that the dismissal of a ferry master, who caused a minor accident, to be justified under the employers’ Code of Conduct which provided for a zero-tolerance for drug use.

This despite the fact that the ferry master had more than 17 years experience AND the drug use (marijuana) was for treatment purposes (shoulder injury) only and did not cause the accident.  The Full Bench held that “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…What it wants its obedience to the policy.”

I doubt that our Employment Relations Authority would come to the same decision. The NZ Employment Relations Act requires a balancing exercise to determine whether the dismissal was what a fair and reasonable employer ‘could have done’. Its easy to see how the long service and the fact that the drug use did not even contribute to the accident (though I wonder how that was determined) would allow a tribunal or court to come to the complete opposite conclusion (as the Commission in the first instance also did). However, the more an employer has to rely on compliance with high safety standards, the less likely it is that a tribunal or commission will find against enforcing zero-tolerance policies. After all, public safety is paramount and as long as the employee is fully aware and has acknowledged the respective CoC, mitigating factors simply wont apply.