Effects of Cough Mixture Are No Excuse for Serious Misconduct

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In the case of Mr Nigel Sclater v Transdev Harbour City Ferries Pty Ltd T/A Transdev Harbour City Ferries [2019] FWC 7968, the Fair Work Commission (FWC) decided the effects of non-prescription cough mixture are no excuse for serious misconduct.

Mr Sclater was employed as a Ferry Master by Transdev Harbour City Ferries (‘Transdev’) who operated ferry services in Sydney Harbour. Mr Sclater was dismissed for serious misconduct regarding an incident on 11 April 2019, where he was found asleep on a settee (a lounge) in the wheel house after the ferry arrived at the Balmain East Wharf. At the time the Engineer, who was also qualified as a Ferry Master, was at the helm driving the ferry.

By way of background, in late March 2019 Mr Sclater caught a cold which left him with a persistent cough. He purchased an over-the-counter cough mixture known as ‘Dry Tickly’ from a chemist.

On 27 March 2019, he began taking the cough mixture and took a photo of one side of the packaging box which he sent by text to his line manager. Unfortunately, this did not include the side of the box with a warning, which Mr Sclater did not read at the time, stating “This medication may cause drowsiness. If affected do not drive a vehicle or operate machinery.”

On the morning of 11 April 2019, Mr Sclater took a dose of cough mixture at 4.50am before signing on for work that day at 5.14am. He took another dose of cough mixture at around 6.30am. Mr Sclater gave evidence that he had previously taken the cough mixture as required for over a week and did not notice any fatigue or other side effects.

The FWC noted Transdev’s Drug and Alcohol Policy required employees to “Check with their treating medical practitioner and pharmacist that they are safe to work while taking prescription and over the counter medications.” Mr Sclater failed to comply with this requirement.

While there was dispute about whether Mr Sclater was asleep for only 5 minutes or 10 to 15 minutes, the FWC found that Transdev was responsible for public safety and that it was “simply untenable for a Master of one of its ferries to be asleep for any period while on duty.”

The FWC noted that Mr Sclater did not supervise the ferry’s approaches to the Barangaroo and Balmain East wharves nor the berthing, tie-ups and gangway deployment at those wharves. The FWC was of the view there existed a “potential risk of significant proportions” while the Master of the ferry was asleep.

The FWC found Mr Sclater did not faint nor was rendered unconscious by a medical episode, but rather allowed himself to fall asleep having sat down on the settee in the wheelhouse of the ferry while the Engineer was in control. On that basis the FWC concluded there was a valid reason for dismissal.

The FWC took into consideration his long history of employment through a succession of employers since 1995, his satisfactory employment record with Transdev and serious financial impact of not being able to secure alternative employment. However, given the circumstances, the FWC was of the view this did not make the dismissal harsh.

This case is important as it demonstrates that employees can be summarily dismissed for being under the influence of legal drugs where that results in a significant safety risk.

If you would like to know more about the implications of this decision, please contact your Mapien consultant on +61 7 3833 1200 or email hello@mapien.com.au

Written by
Charles Lentini
Charles combines his passion for delivering successful outcomes with his extensive experience in both the public and private sector to provide tailored and practical Industrial Relations solutions. He has a calm, methodical and diligent approach to solving complex issues which allows him to analyse each issue logically and instill confidence in his clients.