The Full Court of the Federal Court has rejected an application to quash the decision of the Fair Work Commission in an unfair dismissal case, and in doing so has confirmed the significant limits which apply to judicial review of the decisions of an arbitral tribunal.


The applicant employee was employed as a ferry master by the respondent. After a mishap involving a ferry commanded by the applicant, he tested positive for cannabis. His employment was terminated as a result.

The respondent had a policy which required that employees be drug free and it required that this policy be obeyed, without discussion or variation.

The applicant brought proceedings for unfair dismissal before the Fair Work Commission (FWC) which dealt with the matter by way of arbitration.


The presiding Commissioner found that although there was a valid reason for the termination, the dismissal should be viewed as unfair because there was no evidence that a positive drug test was proof of impairment and there was no evidence of a link between the drug use and the accident aboard the ferry.

The respondent appealed to a Full Bench of the FWC.


The Full Bench of the FWC overturned the original decision.

The Full Bench concluded that the lack of any impairment arising from the drug use, and the absence of a link between drug use and the accident, were not factors relevant to the ground of misconduct applicable to the dismissal.  The central issue was the applicant’s deliberate disobedience of the policy.

The applicant employee applied to the Full Court of the Federal Court for judicial review and an order (prerogative writ) quashing the decision of the Full Bench.

Proceedings before the Full Court

The Full Court has the power to review, and quash, the decisions of an  arbitral tribunal, such as the FWC, where the tribunal commits an error of jurisdiction.

The applicant argued that the Full Bench had made a series of jurisdictional errors largely in terms of the way in which it addressed the issue of impairment and the absence of any link with the accident.

The Full Court concluded that each of the issues raised by the applicant was a complaint about the weight or significance which the Full Bench gave to particular matters and did not point to any jurisdictional error.

The Full Court commented:

…the fact that evaluative judgements are required at each of the different stages in the hearing and determination of an unfair dismissal case has an important significance for any attempt at judicial review of the final outcome. Unless the Full Bench misunderstood its own role, including the way to approach the task of appellate review, the broad evaluative judgment required also from it is not readily amenable to prerogative writs.


The decision reinforces the difficulty which a litigant faces in taking matters beyond the appeal stage within the tribunal itself.  The power of regular courts to intervene in the decision of a tribunal depends on establishing not simply that the tribunal made the wrong decision, but that it asked itself the wrong question or otherwise misconceived its jurisdiction.

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