1
Fair Work Act 2009
s.604—Appeal of decision
Sydney Trains
v
Gary Hilder
(C2019/7774)
VICE PRESIDENT HATCHER
DEPUTY PRESIDENT CLANCY
COMMISSIONER BISSETT
SYDNEY, 13 MARCH 2020
Appeal against decision [2019] FWC 8412 of Deputy President Sams at Sydney on 12
December 2019 in matter number U2019/5109.
Introduction and factual background
[1] Sydney Trains, a statutory corporation established by the Transport Administration
Act 1988 (NSW), has lodged an appeal, for which permission to appeal is required, against a
decision of Deputy President Sams issued on 12 December 20191 (decision). The decision
concerned an application by Mr Gary Hilder for an unfair dismissal remedy in respect of the
termination of his employment with Sydney Trains which took effect on 26 April 2019. In the
decision, the Deputy President determined that there was no valid reason for Mr Hilder’s
dismissal and that the dismissal was unreasonable and harsh. By way of remedy, the Deputy
President ordered that Sydney Trains reinstate Mr Hilder to his former employment, maintain
the continuity of his employment and pay him an amount representing 50 percent of his lost
earnings, less any other remuneration earnt since his dismissal. Sydney Trains contends that
the decision was attended by appealable error and should be quashed.
[2] The circumstances which led to Mr Hilder’s dismissal may be summarised as follows.
Mr Hilder commenced employment with the statutory predecessor of Sydney Trains in 2012,
and at the time of his dismissal he held the position of Customer Service Attendant at
Clarendon Station, the second-last stop on the Richmond line in the Sydney Trains network.
His duties there were, in general terms, to ensure the cleanliness and security of the station
and the safety and convenience of customers. The incident which caused Mr Hilder to be
dismissed occurred on 5 October 2018. The previous afternoon, he had partaken in smoking a
marijuana cigarette when socialising with an old friend he had run into. He felt no ill effects
that evening, and did not consider it would compromise his capacity to work the following
day. On 5 October 2018 he commenced work at 6.00am and, at about 7.00am, he was
subjected to a random drug test and required to give a urine sample. He then continued work
that day and for the following two days without incident. He was then rostered off work for
1 [2019] FWC 8412
[2020] FWCFB 1373
DECISION
E AUSTRALIA FairWork Commission
[2020] FWCFB 1373
2
some days. An initial screening test and then a subsequent confirmation test were conducted
on Mr Hilder’s urine sample and, on 10 October 2018, Mr Hilder was advised that he had
returned a positive result for cannabis metabolites (THC-COOH), with a concentration of
78ug/L. The confirmation test cut off level was 15ug/L. He was suspended from work from
that point and an investigation process commenced. The same day, Mr Hilder arranged to
undertake another drug test with his own doctor, and this showed him to be drug free.
[3] On 6 November 2018, Mr Hilder was informed that the investigation concerned an
allegation that he had returned a positive drug test and that this might constitute a breach of
the Sydney Trains’ Drug and Alcohol Policy (Policy) and its Code of Conduct (Code). The
Policy relevantly provides that Sydney Trains has a random drug and alcohol testing policy,
and that the test rating for drugs must be less than the cut off level stipulated in Australia/New
Zealand Standard 4398 for drug tolerance (Standard). The Standard (which is not actually
contained in the Policy) provides that the screening cut-off for THC-COOH is 50ug/L and the
confirmation cut-off is 15ug/L. The Code relevantly requires compliance with the Policy, and
provides that returning a positive drug test may result in disciplinary action up to and
including termination of employment.
[4] It was ultimately determined that the allegation was sustained and that Mr Hilder
should be dismissed. His union applied for an internal review of the decision, but this was
unsuccessful and the dismissal outcome was affirmed by letter dated 15 April 2019 but not
received until 26 April 2019.
[5] There was uncontradicted evidence before the Deputy President that Mr Hilder:
had, apart from the positive drug test, an unblemished work record;
was not a habitual drug user, and indeed had not smoked marijuana for about 30 years
prior to his drug use on 4 October 2018;
had expressed contrition and remorse about his conduct at all relevant times before
and after his dismissal; and
was 64 years of age at the time of his dismissal, had poor prospects of obtaining
alternative employment and had virtually nothing in the way of retirement savings.
The decision
[6] After reviewing the factual background and the evidence, and dealing
(uncontroversially) with the matters requiring preliminary determination under s 396 of the
Fair Work Act 2009 (FW Act), the Deputy President turned to the question of whether Mr
Hilder’s dismissal was harsh, unjust or unreasonable by reference to the mandatory matters
for consideration in paragraphs (a)-(h) of s 387. The Deputy President first noted that Sydney
Trains’ submissions characterised the allegation it made against Mr Hilder as constituting
serious misconduct and made reference in that respect to the definition of “serious
misconduct” in reg 1.07 of the Fair Work Regulations 2009, but stated that that “reliance on
the Regulation is not necessarily determinative”, that “[t]he Regulations and its non-
exhaustive examples of serious misconduct do no more than provide a guide”, and that reg
1.07 did not “displace the statutory instruction that a valid reason (such as a finding of serious
[2020] FWCFB 1373
3
misconduct) is but one of the relevant matters the Commission is required to take into account
under s 387”. 2
[7] The Deputy President then stated that in cases of summary dismissal, the onus rested
on the employer to prove to the Commission’s satisfaction that the misconduct had in fact
occurred, and there was little doubt that Mr Hilder’s conduct had been proven. However,
while he noted that a finding of misconduct or serious misconduct should not be conflated
with the statutory language in s 387(a) of a valid reason, the Deputy President then went on to
consider whether Mr Hilder’s conduct constituted serious misconduct.3 After referring to a
number of decided cases mostly concerned with the circumstances justifying summary
dismissal at common law, the Deputy President characterised Mr Hilder’s conduct as a
“serious error of judgment” that was a one-off incident, was not reckless, deliberate or
intentional and did not lead to him being incapable or incoherent when at work, and
concluded that it was not serious misconduct.4
[8] The Deputy President then turned to whether there was a valid reason for dismissal
under s 387. After reviewing a number of the authorities, the Deputy President said that
Sydney Trains’ submissions on this topic suffered from “two fundamental and self-evident
flaws” - the first being the purported “zero tolerance” approach to drugs and alcohol in the
workplace and the second being the inconsistency of this approach with Sydney Trains’ own
policies and procedures which recognised personal or mitigating factors when a decision was
to be made about dismissing an employee for breaching the Policy.5 In relation to the
purported “zero tolerance” issue, Deputy President found that there was “no such thing”
because the initial screening test had a cut-off of 50 ug/L, meaning that an employee with an
initial result of (say) 49ug/L would not be subjected to a confirmatory test and thereby escape
detection.6 Further, insofar as the “zero tolerance” approach” might be understood to be a
reference to the disciplinary consequences of a breach of the Policy - that is, automatic
dismissal - that was inconsistent with the capacity under the Policy to take into account
personal or mitigating circumstances. In this respect, the Deputy President said:
“[110] In my opinion, you cannot have a strict ‘zero tolerance’ approach at the same
time as you profess to take into account personal and mitigating circumstances or an
or employees’ show cause response. Both cannot apply in parallel. They are logically
inconsistent. This is not meant to be critical of Sydney Trains’ increasing focus on the
importance of safety, or its targeted campaigns and publicity around ‘Target Zero’.
These are all laudable and desirable objectives. However, the notion of ‘Target Zero’
is, in and of itself, not ‘zero tolerance’. Target is a hope; a goal; a most desired
outcome. It is not a realistic practical reality.
[111] As Sydney Trains has a ‘zero tolerance’ approach to drugs and alcohol, it would
not matter one jot what personal or mitigating circumstances were considered, or
whether the employee responded or not. The outcome would still be the same. The
problem here is that no one would expressly acknowledge the obvious. It is little
wonder that employees are left confused and bewildered, as I am sure Mr Hilder was.
2 Ibid at [84]-[86]
3 Ibid at [87]-[89]
4 Ibid at [90]-[100]
5 Ibid at [106]
6 Ibid at [107]
[2020] FWCFB 1373
4
Indeed, a cynic might say that Sydney Trains need not bother with the charade of an
investigation, if the outcome is already pre-ordained.
. . . .
[114] Further, in Sydney Trains’ reply (5 August 2019) it was said ‘[w]hilst mitigating
factors are acknowledged, the respondent submits that such factors do not address the
seriousness of misconduct …’ (my emphasis). It hardly needs to be said that a mere
‘acknowledgement’ of mitigating factors, does not meet the requisite test under the
Act. Mitigating factors must be considered, weighed up and balanced against the
conduct. On Sydney Trains’ own case, no such consideration or balancing was
undertaken.
[115] Perhaps more significantly, to adopt a ‘one size fits all’ dismissal policy, where
harshness factors are ignored, or worse still, are said to be taken into account, when in
truth they are not, is a very risky proposition for an employer to defend as a legitimate
basis for dismissal. Inadvertently, it will mean that the statutory definition of an unfair
dismissal at s 385 being, inter alia, one which is ‘harsh, unjust or unreasonable’,
would not be given the full scope of that expression. On one view, Sydney Trains’
submission invites the Commission to ignore harshness considerations (as it plainly
did). Such an outcome would be to defeat the statutory purpose and result in the
Commission not taking into account a material consideration – a likely appealable
error. It is not a course I intend to follow.”
[9] The Deputy President then found that Sydney Trains had not communicated to its
employees the true effect of its “zero tolerance” policy since 2017 and had not advised
employees that anyone who returned a positive test for drugs or alcohol would be dismissed
and that personal and mitigating circumstances would not be considered. The Deputy
President concluded in relation to s 387(a):
“[118] It is difficult to establish that an employee is in breach of an employer’s policy
which is inconsistent with related disciplinary policies, and the said policy has not
been disseminated and advised to all employees. In these circumstances, I am unable
to conclude that there was a valid reason for Mr Hilder’s dismissal. Mr Hilder’s
dismissal was ‘unreasonable’ and therefore unfair.”
[10] Immediately following this finding, the Deputy President said:
“[119] Even if I am wrong about this finding, I am otherwise satisfied, in all the
circumstances of this case, that Mr Hilder’s dismissal was ‘harsh’ and therefore unfair.
I shall come back to ‘harshness’ considerations shortly.”
[11] The Deputy President then turned to consider the matters in paragraphs (b)-(h) of s
387. In relation to s 387(b) and (c), the Deputy President found that Mr Hilder had been
notified of the reasons for his dismissal and given an opportunity to respond, and treated these
as neutral factors in the case.7 The findings made in respect of s 387(d)-(g) are not
controversial and need not be recited. In relation to s 387(h), the Deputy President treated Mr
Hilder’s “openness, honesty, remorse and contrition” which, he accepted, was “genuine, well-
intended and expressed from the outset of the investigation of his conduct” as a matter of
7 Ibid at [121]-[122]
[2020] FWCFB 1373
5
particular significance.8 He also took into account Mr Hilder’s age and difficulty in obtaining
alternative employment, his family and financial circumstances, his six years of exemplary
service including awards for customer service, the inconsistency between Sydney Trains’
policies relied on to dismiss Mr Hilder, the failure of Sydney Trains to inform employees of
the true effect of its “zero tolerance” approach and the fact that prior to 2017 there was
evidence of a least two employees who had tested positive for drugs and alcohol who were
given a second chance.9 This led the Deputy President to conclude that the dismissal was
harsh as well as unreasonable, or “at the very least” harsh, and therefore unfair.
[12] The Deputy President then considered the issue of the remedy to be awarded. We have
earlier identified the remedies which the Deputy President concluded he should order.
Because Sydney Trains’ appeal, as ultimately pressed in its amended notice of appeal,
contains no challenge to the reasoning and conclusions of the Deputy President in this respect,
it is not necessary to refer further to this part of the decision.10
Appeal grounds and submissions
[13] Sydney Trains’ amended notice of appeal contains four appeal grounds. The first two
appeal grounds allege errors of fact and law in respect of the Deputy President’s consideration
as to whether there was a valid reason for the dismissal, and may conveniently be dealt with
together. In respect of these grounds, Sydney Trains submitted:
the Deputy President failed to refer to the actual reason for Mr Hilder’s dismissal,
assess Mr Hilder’s conduct or analyse whether the reason as sound, defensible or well-
founded;
the Deputy President failed to assess the validity of the reason for dismissal pursuant
to s 387 independently of the other factors in s 387, but instead took into account
extraneous matters such as the “zero tolerance” approach and its purported
inconsistency with Sydney Trains’ disciplinary policy, whether the Policy permitted
Mr Hilder’s personal and mitigating circumstances to be taken into account and the
unreasonableness of the dismissal;
insofar as there was reliance on Mr Hilder’s lack of impairment, this should not have
been considered;
the assessment of whether Mr Hilder had committed serious misconduct was
erroneous because it proceeded on the premise that some wilful, deliberate or
intentional act was required;
reg 1.07 contains examples of conduct that are inconsistent with the continuation of
the employment contract which constitute serious misconduct;
Mr Hilder willingly smoked cannabis and attended for work as a rail safety worker the
next morning, and in doing so breached the Policy, his contract of employment and
8 Ibid at [126]
9 Ibid at [127]
10 Sydney Trains’ submissions did address how the issue of remedy should be dealt with in the event that its appeal was
upheld and there was a rehearing of Mr Hilder’s unfair dismissal remedy application.
[2020] FWCFB 1373
6
clause 34 of the applicable enterprise agreement and committed an offence under s
128 of the Rail Safety National Law, and this should have been found to amount to
serious misconduct;
the Deputy President erred in his consideration of the validity of the reason for
dismissal by failing to find that Mr Hilder was a rail safety worker who by his conduct
contravened s 128 of the Rail Safety National Law;
the Deputy President also erred in this connection by mischaracterising Sydney
Trains’ “zero tolerance” approach, in that the Policy made plain that it did not require
the complete absence of any trace of drugs in the system but applied cut-offs derived
from the applicable Australian Standard; and
further, the Deputy President found that Sydney Trains’ approach did not allow for the
consideration of mitigating circumstances was not supported by the evidence, and Mr
Hilder’s mitigating circumstances were in fact considered.
[14] The third appeal ground alleges a denial of procedural fairness in respect of the
Deputy President’s exclusion of “large portions” of Sydney Trains’ expert report and its
closing submissions without first notifying Sydney Trains and giving it an opportunity to be
heard. This material is said to have had direct relevance to matters considered by the Deputy
President, including Mr Hilder’s self-assessment of his degree of impairment. The expert
material demonstrated, it was submitted, that cannabis has variable strength, there is no
meaningful relationship between the level of THC-COOH in urine and the degree of
impairment, there is no means to measure cannabinoid concentration to allow the estimation
of the degree of cannabis-induced impairment, cannabis users frequently err in their self-
assessment of impairment, and it is difficult to detect when a person is affected by cannabis.
[15] The fourth appeal ground contends that the Deputy President erred in treating the
conclusions reached by him in respect of paragraphs (b) and (c) of s 387, which were not in
contest, as being neutral in his consideration of whether the dismissal was unfair, when they
should have weighed positively in favour of a conclusion that the dismissal was not unfair.
[16] Sydney Trains submitted that the grant of permission to appeal would be in the public
interest because the decision was attended by significant error, was counter-intuitive and
manifested an injustice insofar as a breach of a drug and alcohol policy was found not to
constitute a valid reason for dismissal, was disharmonious with other decisions of a like
nature and raised issues of serious importance and general application in connection with
Sydney Trains’ safe operation of its rail network.
[17] Mr Hilder submitted that the appeal could not succeed because although Sydney
Trains attacked the Deputy President’s reasons for concluding that there was not a valid
reason for the dismissal, no issue was taken with the Deputy President’s reasoning and
conclusion that even if there was a valid reason for the dismissal, it was nonetheless harsh.
Accordingly there was no utility in granting permission to appeal.
[18] In relation to the first and second grounds of appeal, Mr Hilder submitted that:
whether the Deputy President erred in respect of whether Mr Hilder committed serious
misconduct was irrelevant to the existence of a valid reason under s 387(a);
[2020] FWCFB 1373
7
the Deputy President’s assessment of whether there was a valid reason was consistent
with established principles, and there was no error of fact merely because he did not
make the same findings as those in other cases;
the propositions that Mr Hilder breached the enterprise agreements and s 128 of the
Rail Safety National Law were misconceived because these contentions were not
advanced before the Deputy President;
the Deputy President’s analysis of the “zero tolerance” approach was sound, and no
error of fact let alone significant error of fact was articulated by Sydney Trains;
contextual matters bearing on the gravity of the conduct which caused the dismissal
were relevant under s 387, and these included whether the employee had been told
about the seriousness of the policy and that any breach might lead to dismissal;
accordingly the Deputy President did not err by taking into account Sydney Trains’
“zero tolerance approach” and the degree of Mr Hilder’s impairment; and
the Deputy President did not impermissibly take into account Mr Hilder’s personal
circumstances in his consideration of the validity of the reason for dismissal
[19] In respect of the third ground, Mr Hilder submitted that there was no denial of
procedural fairness because:
the parties were given a full opportunity in the normal way to file the evidence upon
which they wished to rely in advance of the hearing, and Sydney Trains did so;
none of the evidence which Sydney Trains filed in that connection was excluded;
during closing submissions at the hearing, after the issue was raised by the Deputy
President, counsel for Sydney Trains requested the opportunity to file some further
evidence and submissions concerning the screening cut-off for cannabis testing, the
production of the pathology for Mr Hilder’s urine test, and the legal context of the
testing process;
this leave was granted;
the expert report subsequently filed, and the submissions based on it, went well
beyond the scope of the leave, and addressed a range of new issues and allegations not
canvassed before in the proceedings;
the material which went beyond the scope of the leave granted was justifiably
excluded; and
in the circumstances described there was no denial of a proper opportunity for Sydney
Trains to present its case.
[2020] FWCFB 1373
8
[20] Mr Hilder submitted that the fourth ground, in respect of the weight assigned to the
factors in s 387(b) and (c), does not disclose any appealable error in the exercise of the
discretion.
Consideration
Permission to appeal
[21] We are satisfied that the grant of permission to appeal would be in the public interest.
For reasons which we articulate below, we consider that the appeal raises issues of general
application in respect of the consideration required by s 387(a) of the FW Act. The subject
matter of the appeal is also of significance since it concerns the capacity of Sydney Trains, the
operator of the Sydney metropolitan train network, to enforce a policy which is of
significance to the safety of its operations. Permission to appeal is therefore be granted in
accordance with s 604(2) of the FW Act.
The appeal grounds and the decision
[22] It is apparent that the Deputy President determined that Mr Hilder’s dismissal was
unfair on two alternative and independent bases: first, that the dismissal was unreasonable
because of his conclusion pursuant to s 387(a) that there was no valid reason for the dismissal
and, second, that the dismissal was harsh because of the mitigating factors taken into account
pursuant to s 387(h) even if there was a valid reason for the dismissal. We shall in turn
consider whether either of these bases for the decision was attended by appealable error.
[23] The first and second grounds of the appeal concern the Deputy President’s conclusion
that there was not a valid reason for Mr Hilder’s dismissal and therefore are necessarily
directed at the finding that Mr Hilder’s dismissal was unreasonable. They will therefore be
considered in that context. Sydney Trains made a submission at the hearing of the appeal that
the alleged errors identified in its first and second grounds of appeal somehow “infected” the
Deputy President’s consideration under s 387(h) and his finding of harshness, but we do not
consider that this submission has any substance for reasons we explain later. The third ground
of appeal, which alleges a denial of procedural fairness, is based on the exclusion of evidence
and submissions going to the testing regime and its legal context - a matter of relevance only
to the Deputy President’s finding under s 387(a). Only the fourth ground of appeal, which
challenges the weight to be assigned to the s 387(b) and (c) findings, has any potential to
affect the finding that the dismissal was harsh.
Unreasonableness finding
[24] It is necessary to observe at the outset that there is an obvious error in the Deputy
President’s finding that Mr Hilder’s dismissal was unreasonable. Section 387 requires that in
in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the
Commission must take into account each of the matters set out in paragraphs (a)-(h) of the
section. That requirement can only be read as applicable to each element of the trilogy – that
is, a finding that a dismissal is or not harsh, is or is not unjust, or is or is not unreasonable
must in each case be founded on a consideration of all the matters set out in s 387(a)-(h).
However, as is apparent from paragraph [118] of the decision, which we have set out above,
the Deputy President did not comply with this requirement in that he made the finding that the
dismissal was unreasonable based only on his conclusion under s 387(a) that there was no
[2020] FWCFB 1373
9
valid reason for the dismissal and before he gave any consideration to paragraphs (b)-(h). This
constitutes a significant error of law that is jurisdictional in nature.11
[25] This error was pleaded in Sydney Trains’ notice of appeal as filed, but abandoned in
its amended notice of appeal. Accordingly this issue was not addressed in Mr Hilder’s written
or oral submissions. It might have been said, had the issue been raised, that the error was not
of a material nature because once it was found pursuant to s 387(a) that there was no valid
reason for the dismissal, there was nothing in the findings directed to s 387(b)-(h) which
could have avoided a conclusion that the dismissal was unreasonable. However, for the
reasons which follow, we consider that the Deputy President’s finding that there was no valid
reason was made in error.
[26] The principles applicable to the consideration required under s 387(a) are well
established,12 but they require reiteration here:
(1) A valid reason is one which is sound, defensible and well-founded, and not
capricious, fanciful, spiteful or prejudiced.
(2) When the reason for termination is based on the misconduct of the employee
the Commission must, if it is in issue in the proceedings, determine whether
the conduct occurred and what it involved.
(3) A reason would be valid because the conduct occurred and it justified
termination. There would not be a valid reason for termination because the
conduct did not occur or it did occur but did not justify termination (because,
for example, it involved a trivial misdemeanour).
(4) For the purposes of s 387(a) it is not necessary to demonstrate misconduct
sufficiently serious to justify summary dismissal on the part of the employee in
order to demonstrate that there was a valid reason for the employee’s dismissal
(although established misconduct of this nature would undoubtedly be
sufficient to constitute a valid reason).
(5) Whether an employee’s conduct amounted to misconduct serious enough to
give rise to the right to summary dismissal under the terms of the employee’s
contract of employment is not relevant to the determination of whether there
was a valid reason for dismissal pursuant to s 387(a).
(6) The existence of a valid reason to dismiss is not assessed by reference to a
legal right to terminate a contract of employment.
(7) The criterion for a valid reason is not whether serious misconduct as defined in
reg 1.07 has occurred, since reg 1.07 has no application to s 387(a).
11 See Titan Plant Hire v Van Malsen [2016] FWCFB 5520, 263 IR 1 at [30]; Jetstar Airways Pty Limited v Neeteson-Lemkes
[2013] FWCFB 9075 at [49]-[50]; Sayer v Melsteel Pty Ltd [2011] FWAFB 7498 at [14]
12 See Gelagotis v Esso Australia Pty Ltd [2018] FWCFB 6092 at [117]; Titan Plant Hire v Van Malsen [2016] FWCFB
5520, 263 IR 1 at [28]; Sharp v BCS Infrastructure Support Pty Limited [2015] FWCFB 1033 at [25]-[35]
[2020] FWCFB 1373
10
(8) An assessment of the degree of seriousness of misconduct which is found to
constitute a valid reason for dismissal for the purposes of s 387(a) will be a
relevant matter under s 387(h). In that context the issue is whether dismissal
was a proportionate response to the conduct in question.
(9) Matters raised in mitigation of misconduct which has been found to have
occurred are not to be brought into account in relation to the specific
consideration of valid reason under s 387(a) but rather under s 387(h) as part of
the overall consideration of whether the dismissal is harsh, unjust or
unreasonable.
[27] Although the Deputy President adverted to most of the above principles in his analysis
of the case law, we consider that in a number of respects his consideration under s 387(a) did
not conform to those principles and was accordingly the subject of appealable error.
[28] Firstly, and notwithstanding that he correctly identified that it was not the statutory
criterion established by s 387(a), the Deputy President gave extensive consideration to
whether Mr Hilder had committed serious misconduct. To a lesser extent he also gave
consideration to reg 1.07 on the apparent basis that it was a “guide’, again notwithstanding
that he accepted that the regulation was not the matter to which s 387(a) directed attention.
These were simply not relevant matters, although we recognise that to a degree the Deputy
President appears to have been lured into consideration of these matters in response to the
submissions advanced by Sydney Trains at first instance. After dealing with these matters, the
Deputy President did go on to consider separately whether there was a valid reason for the
dismissal. Therefore, if these were the only difficulties in respect of the Deputy President’s s
387(a) consideration, they could be dismissed as superfluities that did not affect the outcome.
[29] However, the Deputy President’s consideration of whether there was a valid reason
was affected by error of a more consequential nature, in that he did not address the material
issues identified in the principles identified above but rather determined the issue by reference
to a number of irrelevant matters. As the Deputy President recognised, there was no dispute as
to the occurrence of the conduct which was the reason for Sydney Trains’ dismissal of Mr
Hilder. Nor was it in dispute that this conduct constituted a breach of the Policy. Mr Hilder
conceded that he was aware of the Policy and its significance. The only question to be
resolved therefore was whether the breach of the Policy was a matter of sufficient gravity to
constitute a sound, defensible, well-founded and therefore valid reason for dismissal. This
required an assessment of the importance of the Policy in the context of Sydney Trains’
operations and Mr Hilder’s work duties.
[30] This matter was not addressed in the decision in relation to s 387(a). Instead, the
Deputy President erroneously focused on Sydney Trains’ “zero tolerance” approach to
breaches of the Policy and its apparent inconsistency with Sydney Trains’ position that it
would take into account any relevant mitigating circumstances before deciding on its
disciplinary response. We do not consider that these were matters relevant to whether there
was a valid reason for the dismissal, since they did not concern Mr Hilder’s conduct but rather
Sydney Trains procedural and substantive disciplinary response to that conduct. If the
consequence of Sydney Trains’ “zero tolerance” was that it would not give any consideration
to any mitigating circumstances advanced by any employee who has been found to have
breached the Policy, that may be relevant to s 387(c) since it would arguably constitute a
[2020] FWCFB 1373
11
denial of a real opportunity to respond to the reason for the putative dismissal. If dismissal
was a disproportionate response to the conduct in question because Sydney Trains had failed
to take into account mitigating circumstances, that would be a matter relevant to s 387(h). But
in the context of s 387(a), they were simply distractions.
[31] We also consider that the Deputy President erred in two further respects in his
consideration under s 387(a), insofar as his assessment of whether Mr Hilder had committed
serious misconduct may be understood as forming part of that assessment. First, he took into
account that Mr Hilder was not “incapable or incoherent when at work”, which involved a
mischaracterisation of Sydney Trains’ reason for dismissal. He was not dismissed for being
discernibly affected by drugs while at work; rather he was dismissed for attending to work
with a proscribed level of cannabis metabolites in his system. The distinction is critical for the
reasons explained by the Full Bench in Sharp v BCS Infrastructure Support Pty Limited:13
“[24] Before we turn to Mr Sharp’s appeal grounds, it is convenient to make a general
observation about this matter. As the Vice President correctly found, the issue in this
case was not Mr Sharp’s ‘out of hours’ conduct in smoking cannabis, but rather that
he attended for work (which involved the performance of SSAA [Safety Sensitive
Aviation Activities]) with a level of cannabinoids that was above (and very
significantly above) the permitted threshold. That was ‘at work’ conduct. Undoubtedly
from Mr Sharp’s perspective it seems harsh that he was dismissed as a result of this in
circumstances where he did not consider himself to have been impaired or to have
represented a risk to anyone’s safety. However, a critical consideration in assessing
whether a dismissal in these types of circumstances was unfair is the fact that there is
currently no direct scientific test for impairment arising from the use of
cannabis. Saliva testing can more accurately detect recent cannabis use than urine
testing, which means that it may be a better proxy indicator of the possibility of
impairment, but it remains the case that it cannot conclusively demonstrate
impairment or non-impairment. Therefore, where an employee who shows no obvious
signs of impairment undergoes a drug test at work and tests positive for cannabis use,
the employer is placed in a difficult position. In practical terms, it will be unlikely that
the employer will be in a position to independently ascertain when the relevant
employee consumed cannabis and the quantity that was consumed. Apart from
reliance upon the employee’s own explanation about the matter, which will probably
not be verifiable, the employer will therefore not be in a position properly to assess
whether the employee is impaired as a result of cannabis use and therefore represents
a threat to safety. For that reason, employer policies which provide for disciplinary
action including dismissal where an employee tests positive for
cannabis simpliciter may, at least in the context of safety-critical work, be adjudged to
be lawful and reasonable...” (footnotes omitted)
[32] That is not to say that evidence in this case concerning the lack of any impairment was
not relevant at all. In accordance with the principles earlier stated, it was potentially relevant
under s 387(h) in the context of a consideration of the seriousness of Mr Hilder’s conduct and
the proportionality of dismissal as a disciplinary response. However it was not relevant to the
actual reason for dismissal.
13 [2015] FWCFB 1033
[2020] FWCFB 1373
12
[33] Second, the Deputy President treated as a significant relevant consideration whether
Mr Hilder’s breach of the Policy was intentional rather than a mere error of judgment. Again,
that was a distraction from the actual reason for the dismissal, which was a breach by Mr
Hilder of the Policy simpliciter by attending for work with a proscribed level of drugs in his
system. It would place an employer in an impossible position if, in order to enforce workplace
safety policies, the employer had to demonstrate intentionality on the part of the offending
employee. In this respect, the following statement by the Full Bench in Urso v QF Cabin
Crew Australia Pty Limited,14 which concerned the dismissal of a flight attendant who had
become intoxicated during a stay in a slip port to the extent that he failed to attend for work
the next day, is directly applicable:
“[30] It may be accepted that Mr Urso did not positively intend to become intoxicated
to the degree that he could not attend for work the following day when he went to the
bar in New York on 22 July 2017. However we do not accept that intention is a
necessary element of misconduct which might constitute a valid reason for dismissal
for the purpose of s 387(a). Some forms of misconduct clearly involve a positive
intention on the part of the employee, such as workplace theft or fraud. However other
forms of misconduct, such as breaches of safety policies and procedures, may be the
result of recklessness, negligence or misjudgement. In this case, Mr Urso’s
responsibility on 22 July 2017 was to limit his consumption of alcohol to a degree
which ensured he would be able to attend for work and safely perform his duties the
following afternoon. That necessarily required close and continuing attention to the
amount of alcohol he was consuming and its effect upon him, since it is notorious that
alcohol will operate to progressively diminish personal responsibility and impair a
person’s sense of judgment. It defies common sense that a person exercising the
requisite degree of restraint could put themselves in the position of consuming 14
standard drinks and then passing out in a period of well under two hours. That Mr
Urso got himself in that condition was, we consider, the result of recklessness and
misjudgement on his part.”
[34] Again, the issue of Mr Hilder’s intentionality may have been relevant under s 387(h)
(although we note that it was not in dispute that he intentionally smoked the marijuana
cigarette which caused him to be in breach of the Policy), but it was not relevant to an
assessment of the validity of his admitted breach of the Policy as a reason for dismissal.
[35] We consider that it is reasonably obvious that Mr Hilder’s contravention of the Policy
constituted a valid reason for dismissal. Not every established breach of a requirement of
workplace policy will constitute a valid reason for dismissal. If the policy requirement
pertains to a matter which is trivial in nature or inessential to the fundamental requirements of
the employee’s employment, an established breach of the policy on a single occasion is
unlikely to constitute a valid reason for dismissal. But that is plainly not the situation here.
Sydney Trains’ operations are safety-critical. The Policy here is designed to ensure that
employees do not perform safety-critical functions with drugs or alcohol in their system. Mr
Hilder’s duties required him to perform safety-related functions. Compliance with the Policy
was therefore a fundamental element of his employment. As to the general importance of
compliance with safety policies in the context of Sydney Trains’ operations, we could not put
it better than the Deputy President did himself in Singh v Sydney Trains15 when he said:
14 [2019] FWCFB 1322
15 [2019] FWC 182; permission to appeal refused in [2020] FWCFB 884
[2020] FWCFB 1373
13
“[325] That an employee’s conduct, which has the potential to cause an imminent risk
to the safety of other employees, constitutes a valid reason for dismissal, is plainly an
important consideration in cases such as this. The very identification in s 387(a) of
such conduct serves to demonstrate how serious the legislature views the ‘safety and
welfare’ of others...
. . .
[327] In my view, the conduct in question need not necessarily be wilful, deliberate or
reckless to constitute a valid reason for dismissal. Conduct which is negligent,
accidental, inadvertent or careless, particularly in the rail industry, can have disastrous,
life-threatening consequences. Adherence to safe working policies and practices,
particularly where persons are specifically trained to be aware of ever present dangers,
is a cardinal principle for any workplace, but even more so in the rail industry where
the risk to the safety of employees and the public is obviously so much more acute. It
involves fast moving trains and potentially dangerous infrastructure. Employees are
commonly working in high risk track environments as a daily feature of the working
environment. Such conduct need not be repeated behaviour, but may involve a single
instance of conduct which threatens the safety of employees or others…”.
[36] The consideration of whether there is a valid reason for dismissal under s 387(a)
requires the making of an evaluative assessment. We consider, for the reasons given, that in
undertaking that assessment, the Deputy President failed to take into account the materially
relevant considerations and rather determined the outcome on the basis of irrelevant
considerations. As a result, the finding that there was not a valid reason for dismissal was in
error, and the conclusion that Mr Hilder’s dismissal was unreasonable on the basis of that
finding was also in error. Insofar as our reasoning and conclusions encompass a number of the
matters raised by Sydney Trains in its first and second grounds of appeal, those grounds are
upheld.
[37] It is unnecessary in those circumstances to deal in any depth with the third ground of
appeal. It is sufficient to say that we consider that the appeal ground lacks merit for the
reasons stated in Mr Hilder’s submissions as summarised in paragraph [19] above.
Harshness finding
[38] As we have already explained, the Deputy President made the alternate finding that Mr
Hilder’s dismissal was harsh on the premise that there was a valid reason for dismissal,
Accordingly, Sydney Trains’ success in respect of its first and second grounds of appeal does
not operate to vitiate that finding. Its submission that the errors in the Deputy President’s
consideration under s 387(a) in some sense “infected” his consideration as to harshness is
rejected. This submission was not adverted to in any of the grounds of appeal nor was it
articulated beyond the level of assertion. We have earlier set out the matters identified by the
Deputy President in the decision which caused him to conclude that Mr Hilder’s dismissal
was harsh. Only two matters have any intersection with the matters which the Deputy
President took into account under s 387(a): the inconsistency said to exist between Sydney
Trains’ “zero tolerance” approach and its professed policy of taking mitigating factors into
account when considering the taking of disciplinary action. We consider that the Deputy
President was entitled to have regard to these matters under s 387(h). As to the first matter, we
agree that there is a clear inconsistency between the “zero tolerance” approach, which was
clearly characterised by Sydney Trains’ witness Mr Christopher Walsh as one whereby any
[2020] FWCFB 1373
14
breach of the Policy would result in the termination of employment, and the consideration of
mitigating factors in decision-making concerning disciplinary action. The inference is
available that the mitigating factors in Mr Hilder’s case were not truly taken into account
when Sydney Trains decided to dismiss him. As to the second matter, there was no challenge
in the appeal to the Deputy President’s finding of fact that employees had not been informed
of the true nature of the “zero tolerance” approach after its adoption in 2017.
[39] We would add that we do not cavil per se with a decision by an employer to
recalibrate its response to breaches of drug and alcohol policies and impose a zero-tolerance
approach. However, if such a course of action is undertaken, it is desirable that the employer
clearly communicates the terms of the new policy to employees, ensures they are trained in it,
and gives adequate warning regarding the date upon which the new policy will be
implemented and relied upon. Clarity of communication is also highly desirable as to the
actual terms of an employer’s drug and alcohol policy. We note in this respect that the Policy
here, which we have earlier summarised, simply cross-refers to the Standard in respect of the
cut-off levels for drug use without either incorporating the relevant parts of the Standard or
summarising their effect in terms intelligible to the average Sydney Trains employee.
[40] Only Sydney Trains’ fourth appeal ground challenges any part of the Deputy
President’s consideration other than under s 387(a) and might therefore potentially affect the
harshness finding. However, it has no merit. The weight to be assigned to the conclusions
reached under s 387(b) and (c) were a matter for the Deputy President, and a disagreement
with the weight assigned to relevant matters that were otherwise the subject of proper
consideration is not a sustainable ground of appeal. It was open to the Deputy President to
find that compliance with the minimal procedural fairness requirements in s 387(b) and (c) by
a large and sophisticated public sector organisation such as Sydney Trains was not a matter of
significance and as such might be treated as a neutral consideration.
[41] In this case there were mitigating factors in Mr Hilder’s favour and it was therefore
reasonably open to the Deputy President to conclude that Mr Hilder’s dismissal was harsh
notwithstanding that there was a valid reason for his dismissal. We do not consider that this
conclusion was subject to any appealable error.
Conclusion and orders
[42] Because we have affirmed the Deputy President’s conclusion that Mr Hilder’s
dismissal was harsh, and there is no challenge to the Deputy President’s consideration of the
remedy to be awarded to Mr Hilder, there is no reason to disturb the orders made by the
Deputy President. We consider therefore that the appropriate course is to dismiss the appeal.
We order as follows:
(1) Permission to appeal is granted.
(2) The appeal is dismissed.
OF THE FAIR WORK MISSION THE
[2020] FWCFB 1373
15
VICE PRESIDENT
[2020] FWCFB 1373
16
Appearances:
A B Gotting of counsel with S Moten on behalf of Sydney Trains.
P Boncardo of counsel with G Morgan-Cocks for Mr Hilder.
Hearing details:
2020.
Melbourne:
7 February.
Printed by authority of the Commonwealth Government Printer
PR717501
