Ferry master sacked for taking a snooze

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Ferry master sacked for taking a snooze

A ferry master who blamed cough syrup for falling asleep on the job has failed to convince a tribunal he was unfairly dismissed.

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A ferry master who blamed cough syrup for falling asleep on the job has failed to convince a tribunal he was unfairly dismissed.

The Fair Work Commission ruled it was "simply untenable... to be asleep for any period while on duty".

Background


The ferry master was sacked in April 2019 after his line manager boarded the 'May Gibbs' and discovered him asleep on a bench in the wheelhouse.

At the time, an engineer was at the helm and the vessel was travelling between wharfs in Sydney Harbour.

Transdev Harbour City Ferries considered the ferry master's actions as serious misconduct and contrary to its code of conduct, disciplinary policy and drug and alcohol policy.

Dry Tickly


The ferry master claimed he became drowsy and fell asleep due to an underlying illness, taking cough mixture and not taking his heart medication that morning. His doctor also said he was particularly sensitive to codeine.

He told the commission he had been taking an over-the counter cough mixture (Dry Tickly) to deal with a persistent cough, and had texted a picture of one side of the box to his manager.

However, he did not read, or send a picture of, a warning label on the box which stated: "This medication may cause drowsiness. If affected do not drive a vehicle or operate machinery".

The ferry master said he expected his manager would ask him about the mixture if he had any concerns, or that his manager would research it himself.

In his witness statement, he claimed he was unaware his employer's drug and alcohol policy required him to ask a pharmacist about potential side effects of cough mixtures, however under cross-examination he conceded he knew of this requirement.

Sleep confusion


During the investigative process, Transdev maintained the ferry master had been dishonest, initially saying he was not asleep and had just had his eyes shut. Transdev also believed that the ferry master's claim he only handed over control to the engineer for about five minute was a dishonest response.

In its letter of termination, Transdev said it viewed the ferry master's actions as "serious misconduct and gross negligence in performing your duties in a safety critical role and endangering the safety and security of customers, staff and assets."

Drawing a long bow


Deputy president Bull said Transdev’s reliance on the code of conduct to impose an obligation on an employee to ask a pharmacist about side effects of a cough mixture was “drawing a long bow”.

However, he accepted the drug and alcohol policy required employees to “check with their treating medical practitioners and pharmacist that they are safe to work while taking prescription and over-the-counter medications”.

The commission did not accept that the ferry master’s conduct was a breach of s26 of the Maritime Safety Act 1988, as it was not demonstrated that the ferry master either took or was under the influence of a prohibited drug.

It also didn’t find that the ferry master’s responses raised issues of dishonesty, pointing out that Mr Arul “did not explain how he could reasonably expect [the ferry master] to state accurately how long he had been asleep”.

Nonetheless, deputy president Bull said it was “simply untenable” for the ferry master to be asleep, and it was behaviour that “cannot be countenanced”.

He said the ferry master’s explanation for falling asleep fell well short of exculpating his conduct.

“As the master, he must remain alert and in control of the vessel at all times, which he failed to do”.

The commission found the ferry master had not been unfairly dismissed.

Read the judgment


Nigel Sclater v Transdev Harbour City Ferries Pty Ltd T/A Transdev Harbour City Ferries (U2019/5233) [2019] FWC 7968
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